N7423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1070 OF 2017

BETWEEN:
TIME AND ACCESS SYSTEM (PNG) LTD
Plaintiff

AND:
DR. UKE KOMBRA, The Secretary for the Department of Education
First Defendant

AND:
THE DEPARTMENT OF EDUCATION
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:  Dingake J
2018:  7th June

PRACTICE AND PROCEDURE – Application for Default – Despite meeting all the elements for granting the Default Judgment the Court still retains the discretion to refuse same for other reasons – Application refused.

Cases Cited:

Urban Giru v Luke Muta (2005) PGNC 83 N2877.

Counsel:

Mr. Simon Dewe, for the Plaintiff.
Ms. Jenny Topo, for the Defendants.

7th June,2018

1. 	DINGAKE J:	By way of Notice of Motion filed with this Court on the 16th of April, 2018, the Applicant approached this Court seeking the following orders:
1)	Pursuant to Rule 4(2) (a) of the Rules Relating to the Accreditation, Regulation, and Conduct of Mediators (ADR Rules), leave be granted to the Plaintiff to dispense with mediation.
2)	Pursuant to Order 12 Rule 25 (a) and or Order 12 Rule (1) of the National Court Rules (“the Rules”) and the inherent powers of the Court, Default Judgment be entered against the Defendants for failing to file Notice of Intention to Defend and Defence.
3)	Pursuant to Order 12 Rule 27 of the Rules, default judgment be entered for the sum of K838,547.60.
4)	Pursuant to Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch 52), interest be awarded for the judgment amount sought in item 3.
5)	Pursuant to Order 22 Rule 5 of the Rules, cost of this application be paid by the Defendants on a full indemnity basis.
6)	Any further orders this Court deems fit to so order.
7)	The time for entry of this order be abridged to the date of settlement by the Registrar which shall take place forthwith.
2. 	On the main the applicant relies on the Affidavit of Harry Simpson filed on the 16th day of April, 2018.
3. 	It is clear on the evidence filed of record that on the 28th of January, 2016, the First Defendant entered into a Vendor Supply Agreement with Plaintiff who is in the business of supplying, installing, implementing Time and Attendances Management System and related business.
4. 	In the said Agreement, the Second Defendant agreed to engage the Plaintiff to supply, install, implement and deliver user training, consultancy and support the Time and Attendance Management Systems, whilst the Plaintiff agreed to deliver such system and services subject to the terms and conditions set out under Schedule 1: Terms and Conditions of Sale and Annual Support Agreement Reference.
5. 	The Plaintiff alleges that it has kept its part of the bargain whilst the Defendants are in default.
6. 	The Plaintiff avers that despite demand the Defendants have failed or neglected to effect payment of the goods and services provided pursuant to the Agreement.
7. 	In October 2017, the Plaintiff filed and issued a Writ of Summons against the Defendants seeking payment in the amount of K838,547.60.
8. 	The Defendants have failed to file Notice of Intention to Defend and Defence within the required period, hence this application.
9. 	The grant or refusal to enter default judgment in terms of Order 12 Rule 25(a) and (b) or Order 12 is discretionary. The discretion is a judicial one and must be exercised on sound principles and grounds.
10. 	The Court, even where all the elements for granting the default judgment are met, may still refuse to grant same for good cause (Urban Giru v Luke Muta (2005) PGNC 83; N2877).
11. 	In this case, I am not inclined to grant the relief sought for one or all of the following reasons.
12. 	Firstly, the Plaintiff has failed to meet the requirement for paragraphs one (1) of the Orders that it seeks. The factual basis for this prayer is unclear. Besides, even if there was sufficient factual foundation for such a prayer, the Applicant made no attempt to meet the requirements prescribed by Rule 4(3) and 5(3) of the ADR Rules.
13. 	Secondly, the basis of the claim being an Agreement to supply services, the applicant has failed to provide evidence of a properly authorised Integrated Local Purchase Order and Claim (LPOC); or an Authority to Pre-commit Expenditure in terms of Section 2A of Claims By and Against the State Act, 1996.
14. 	Thirdly, this matter ought to be referred to Arbitration/Article 12 of the Vendor Supply Agreement signed by the parties obliges them, in the event of any dispute regarding the Agreement, concerning the rights, duties and liabilities of the parties to refer same to arbitration.
15. 	The applicant made no attempt in its papers or submissions to address the effect of Article 12 on this application.
16. 	In the result, the Application is without merit and it is refused.

__________________________________________________________
Jema Lawyers : Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants