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Tsang v Orenshaw [2019] PGNC 94; N7814 (19 March 2019)

N7814

PAPUA NEW GUINEA
[IN TH NATIONAL COURT OF JUSTICE]

WS 707 OF 2016

BETWEEN:
DOUGLAS TSANG
Plaintiff

AND:
WAYNE ORENSHAW
First Defendant

AND:
DR JOHN KWIMB PhD
Second Defendant

Kavieng: Kangwia J
2018: 22 November &
2019: 19 March

DEFAULT JUDGEMENT - Liquidated demand for defamation – No intention to defend filed – Whether to grant or refuse is discretionary - Whether requirements to satisfy entry of default judgement met – Lack of proper service apparent – Application for default judgement refused.

Cases Cited:
David Lambu v Paul Torato [2008] SC953;

Counsel:

G. Jerry, for the Plaintiff
No Appearance, for the Defendants

19^th March, 2019

1. KANGWIA J: The Plaintiff by notice of motion moved for default judgement against the First Defendant pursuant to Order 12 Rule 25 (a), (b) & (c) and Rule 27 (2) of the National Court Rules (NCR hereon). The Second Defendant has filed a notice of intention to defend and is not named in this proceeding.
   
2. By a writ of summons the Plaintiff in a liquidated claim, claimed a total of K100, 000. 00 for defamation with interest and costs against the defendants.
   
3. The claim arose out of a letter written by the second defendant to the Provincial Building Board concerning the First Defendant’s allegations of failures and alterations by the Plaintiff to a construction plan that was earlier approved by the board. The letter by the second defendant was circulated to 7 people. The plaintiff claimed that the contents of the letter contained matters that were untrue and defamatory of him.
   
4. The events leading to this application are these;
   
   1. The Writ of summons was filed on 04 July 2016.
   2. According to Glen Jerry’s affidavit of service dated 3 January 2017 the writ was served on 31 October 2016.
   3. Since the date of service of the writ there has been no intention to defend filed by the first defendant.
   4. There is no evidence that the Plaintiff gave any notice on the motion for default judgement to the First Defendant even though it is not a requirement.
   5. The Notice of motion for default judgement was filed on 2 November 2018.
      
5. In support of the motion the Plaintiff relied on the affidavits of Mr Glen Jerry, Douglas Tsang and Gilis Silau which were filed on various dates. Mr Jerry submitted that the Plaintiff had complied with the requirements of service but the Defendant had failed to file a Notice of Intention to Defend and a Defence within the time period allowed under the rules.
   
6. It was further submitted that the Plaintiff was entitled to default judgement for defamation in line with the case of David Lambu v Paul Torato [2008] SC953.
   
7. The law in this country is that a Plaintiff is entitled to default judgement for defamation as in other cases. Counsel has correctly referred to the case authority on whether default judgement can be entered in a defamation claim.

In a unanimous decision the Supreme Court in David Lambu v Paul Torato held that a Plaintiff was entitled to default judgment in a defamation case.

8. In that case the appellant appealed against a decision of the National Court which ruled that default judgement could not be entered for defamation claims. The Supreme Court overturned the National Court decision.
   
9. In the present case the issue that arises is whether the Plaintiff is entitled to default judgement.
   
10. Before any default judgement is entered the onus is on the Plaintiff to fully satisfy or comply with the requirements under the National Court Rules.
    
11. Motions for Default Judgements are guided by the rules under Order 12 Division 3 rules 24 and 25 of the National Court Rules. The relevant parts for the present application are as follows:
    

Rule 24. Application of division 3

This division applies to proceedings commenced by writ of summons.

Rule 25. Default

A defendant shall be in default for the purpose of this division-
(a where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or
(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
(c) ...

12. The Court records show that only the Second Defendant filed a notice of intention to defend on 30 October 2018. The First Defendant has failed to file a notice of intention to defend.
    
13. Therefore, the First Defendant is in default pursuant to Order 12 Rule 25.
    
14. Following the default, the Plaintiff took steps under Order 12 Rule 27 to move this motion for default judgement.
    

Rule 27. Liquidated demand

(1) Where the plaintiff’s claim for relief against a defendant in default is for a liquidated demand only the plaintiff may enter judgement against that defendant for a sum not exceeding the sum claimed in the statement of claim on that demand and for costs.

15. The grant or refusal to grant default judgements is an exercise of discretion pursuant to Order 12 Rule (1) of the NCR which is in the following terms;
    

ORDER 12 JUDGEMENTS AND ORDERS

1. General relief

The Court may at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.

16. Under this rule there is a wide discretion in the Court to hear and grant or refuse any application made by a party. It seems that any such order sought is regardless of whether it extends or not to the substantive relief sought in the Original Summons.
    
17. It is an established principle of law that the onus rests on the party that raises or makes a claim or an allegation to establish it.
    
18. The requirements for an application for default judgement under the rules are clear and mandatory. There must be a default committed by a defendant. In the present case the Plaintiff submitted that the defendant was served a copy of the Writ of Summons on 31 October 2016. Since then there was no Notice of Intention to Defend filed.
    
19. It is apparent that the First Defendant was in default by more than two years up to the time of this hearing.
    
20. The First Defendant is therefore in breach of the requirement under Order 7 R (1) & (4) of the National Court Rules to file a Notice of Intention to Defend and the time limit of 30 days provided under Order 4 Rule 11 had lapsed.
    
21. The other mandatory requirement for default judgement to be entered relates to the proof of service of the writ under Order 12 Rule 34 which states;
    

34. Proof of service of writ

Judgement shall not be entered against a defendant under this Division unless-

(a) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ of summons or notice of the writ on the defendant; or
(b) the plaintiff produces the writ endorsed by the defendant solicitor with a statement that he accepts service of the writ on the defendant’s behalf, and an affidavit is filed by or on behalf of a plaintiff proving the default of the defendant on which the plaintiff relies.

22. To comply with the requirement under rule 34 an affidavit of service by Glen Jerry dated 30 January 2017 on file deposed as follows:
    

1. ...

2. ...

3. At about 31 October 2016 I attended section 28 lot 99 Malangan Beach Resort Nusa Parade Kavieng, New Ireland Province.

4. First the lady at the reception refused to accept the documents so I explained that this is the defendant address by law for purpose to effect service of the writ of summons

5. I also advised the lady to forward the document to his forwarding address.

6. Due to the argument as a result the tension was high and emotional it slipped my mind to get the lady signed the acknowledgement.

7. ...

23. That is the only document relating to service on record. There is no other document substantiating proper service. That is the same affidavit referred to and relied on by Douglas Tsang in his affidavit in support of the motion.
    
24. On a perusal of the affidavit it is obvious that the writ was not served on the First Defendant in person. It is also obvious that it was not served on the First Defendant’s lawyer. There is no acknowledgement by anyone of the receipt or acceptance of the service of the writ. It is also obvious that the writ was given to an unnamed lady at the counter of Malangan Beach Resort. There is no evidence of what the lady did to the writ after it was given to her.
    
25. All these observations reveal shortfalls in the mandatory requirement for proper service that Order 12 Rule 34 of the National Court Rules demand. I cannot be satisfied that the Plaintiff has satisfactorily served the writ on the First Defendant. There is every possibility that the First Defendant never received the writ at all given the circumstances deposed in the affidavit of Glen Jerry. I would loathe entering a default judgement against a defendant who may not have been properly served a writ.
    
26. Default judgment cannot be entered when evidence of proper service is lacking. In view of this determination it is not necessary to address the other requirements for default judgments.
27. The Plaintiffs Motion for default judgment is refused.
    
28. On the claim that of lack of service of the writ of summons as one of the reasons for not filing the Notice of Intention to Defend is in my view baseless. The record succinctly shows that the writ was served on 11 May 2015. Evidence of service by Napoleon Kigolena attests to service of the Writ of Summons on the Manager of the First Defendant at their office.
    
29. On the claim that inaction by their previous lawyers was the reason for not filing the Defence is not a good reason to seek leave to file a notice after the lapse of the required time period. The plaintiffs are at liberty to sue their layers for professional negligence. This claim is rejected as unreasonable.
    
30. On the need to obtain the services of a qualified technician to obtain advice before filing the Defence is also not a reasonable explanation. There is undisputed evidence that the summons was served and accepted by the defendants. The least the Defendants could have done was file an intention to defend before seeking an expert’s advice. They failed in that regard. It seems the defendants did nothing after accepting service.
    
31. Despite that there is wide discretion in the Court to still grant the application. In the present case they sought evidence and view of an expert as to why they think they were overcharged. That goes to the heart of the claim. The allegation of inflated power bill should be established to avoid paying what was claimed in the Writ of Summons. The plaintiff has made no appearance to oppose that allegation and the reason of expert evidence remains unchallenged.

In view of that consideration the Court will exercise its discretion to grant leave for the Defendants to file their defence out of time.

Formal Orders;

1. Leave sought is granted with costs of this application in favour of the Plaintiff on a Solicitor Client basis.
2. Hearing date to be fixed at the NCO.

___________________________________________________________
Parker Legal: Lawyers for the Plaintiff
No Appearance: Lawyers for the Defendant