N8711

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 296 OF 2013

BETWEEN:
ISLANDS HELICOPTERS SERVICES LIMITED trading as ISLANDS NATIONAIR
Plaintiff

AND:
MANOLOS AVIATION LIMITED
Defendant

Waigani: Hartshorn J
2018: 10th & 11th December

PRACTICE AND PROCEDURE - Application for summary judgment or for the defence to be struck out and judgment entered

Cases Cited:

Bruce Tsang v. Credit Corporation Ltd [1993] PNGLR 112 
Christopher Smith v. Ruma Construction Ltd (2000) N1982
William Duma v. Eric Meier (2007) SC898 
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd and the State (2013) SC1230 Wilson v. Kuburam (2016) SC1489 

Counsel:

Mr. I. Shepherd, for the Plaintiff

Oral decision delivered on
11th December 2018

1. HARTSHORN J: This is a decision on an application for summary judgment pursuant to Order 12 Rule 38 National Court Rules, or for the defence to be struck out and judgment entered in favour of the plaintiff for damages to be assessed, pursuant to Order 10 Rule 15 (2)(b) and (c) National Court Rules.

2. I allowed the application to proceed in the absence of representation on behalf of the defendant as I was satisfied that the lawyers for the defendant had been properly made aware of the hearing date and time of the application. I refer in this regard to the affidavit of service of Ms Kala Unatah sworn 10th December 2018. 

Background 

3. The plaintiff and defendant entered into a written agreement on 7th November 2010 pursuant to which the plaintiff would lease a Bell Helicopter to the defendant. The helicopter was leased at the rate of K4,500.00 per flight hour, ie engine on – engine off. The agreement was for three months, with a three month option and would be extended with mutual consent. The defendant used the helicopter between December 2010 and April 2012. The plaintiff issued invoices based on daily flight records. On 1st September 2012, the plaintiff issued two invoices totalling K1,060,686.00. The defendant has failed to pay for the services despite several reminders. This proceeding was commenced in 2013 seeking payment of the two invoices issued to the defendant for helicopter hire in 2012. 

4. The Defendant disputes the debt but its defence appears to admit most of the facts. The defendant queries how the amount alleged to be due and owing was calculated. 

5. Since an attempt at mediation, and in particular since July 2018, the defendant has failed to appear in court for direction hearings on a number of occasions and has failed to comply with directions issued. 

6. There is evidence that the facts are not in dispute and that the current amount of the claim is approximately K1.3 million which can be verified by the plaintiff’s accountant. Further, a director and the chairman of the plaintiff has deposed that in his opinion, the defendant has no defence to the plaintiff’s claim other than as to quantum. 

Law 

7. In regard to summary judgment in the Supreme Court case of Bruce Tsang v. Credit Corporation Ltd [1993] PNGLR 112 the Court in considering Order 12 Rule 38 National Court Rules said that there are two elements involved, being:
a)	evidence of the facts proving the essential elements of the claim; and
b)	that the plaintiff or some responsible person gives evidence that in his belief there is no defence.
8. The Court stated further:
“If a defence is filed or evidence is given by the defendant … the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict of fact or law.”
9. There are numerous decisions concerning the requirements for a successful summary judgment application. One of these is William Duma v. Eric Meier (2007) SC898. As to an application for summary judgment the Court said:
“Summary judgment is a discretionary power and may be granted if there is evidence of facts on which the claim is based and evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim………
The discretion conferred on the Court should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the plaintiff.”
10. I also make reference to a passage in Christopher Smith v. Ruma Construction Ltd (2000) N1982, a decision of Sakora J in which his Honour, in my respectful view, correctly records the test to be applied when regard is had to the wording of Order 12 Rule 38 (1) National Court Rules. For summary judgment to be entered:
“1. The applicant must verify by affidavit evidence the cause of action.
2. The applicant must swear to a belief on his part that the respondent (defendant) has no defence to the cause of action (or the pleadings). 
If the Court has been satisfied in respect of (1) and (2), then the onus is on the respondent to:
3. show an arguable defence or that there is a real question to be tried.”

11. In regard to non-compliance with directions issued by a court, the law is also clear, particularly where the non-compliance is continuing and persistent and no explanation has been given for the non-compliance. See for example, Lae Bottling Industries Ltd v. Lae Rental Homes Ltd and the State (2013) SC1230 which related to non-compliance with the Supreme Court Rules. See also Wilson v. Kuburam (2016) SC1489. 

12. The Supreme Court has held that non-compliance with a court’s directions is a serious breach of the processes of the court. 

13. In this instance, Mr. Mark Chan, a director and chairman of the plaintiff, deposes as to the plaintiff’s claim. Amongst others, Mr. Chan deposes that in his opinion, the defendant has no defence to the plaintiff’s claim apart from the issue of the quantum of the claim as is indicted by the defence. 

14. Mr. Chan appears to have satisfied the two factors previously mentioned. The plaintiff’s cause of action has been verified by Mr. Chan’s affidavit evidence and Mr. Chan has sworn that in his opinion, the defendant does not have a defence to the claim apart from as to the quantum.

15. The onus is now upon the defendant to show that there is an arguable defence or that there is a real question to be tried. As previously mentioned, there was no representation on behalf of the defendant. So there is no evidence of an arguable defence or that there is a real question to be tired, or any submissions in that regard.

16. Counsel for the plaintiff referred to a defence that had been filed. From a perusal of the defence, most of the facts appear to be admitted but the calculation of the alleged amount owing is queried. There are no denials in the defence and no particulars of any defences are pleaded. 

17. From a perusal of the defence and taking into account the evidence given on behalf of the plaintiff, I am not satisfied that the defendant has raised an arguable defence or a real question to be tried. I am satisfied that the plaintiff is entitled to the summary judgment relief that it seeks against the defendant. 

18. Given this, it is not necessary to consider the other submissions of counsel. I will however, consider the allegation of non-compliance with the directions of the court. 

19. From the unrebutted evidence of Mr. Shepherd, amongst others, the lawyer for the defendant did not attend direction hearings on 6th August 2018, 21st August 2018 and 4th September 2018. I am satisfied from the evidence that the lawyers for the defendants were properly made aware of each of these direction hearing dates and times. 

20. Order 10 Rule 15 (2)(b) National Court Rules provides that the Court may summarily dispose of a matter for failure to appear at any of the listing or direction hearings by a party or his lawyer. 

21. Given the evidence and circumstances referred to and to the non-appearance of the defendant’s lawyer for the application, I am satisfied that the court is entitled to and should exercise its discretion and summarily determine the defence of the defendant for the non-attendance by its lawyer at any of the direction hearings to which reference has been made. 

Orders

22. The Court orders that:

a)	Pursuant to Order 12 Rule 38 National Court Rules, summary judgment is entered in favour of the plaintiff for damages to be assessed and pursuant to Order 10 Rule 15 (2)(b) National Court Rules, the defendant’s defence is dismissed;

b)	The costs of the plaintiff of and incidental to this proceeding shall by paid by the defendant.

c)	Time is abridged. 
__________________________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant