N8466

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR)NO 1004 OF 2019

BETWEEN:
BIT JANGUAN
Plaintiff

AND:
SENIOR CONSTABLE SOLOMON WILLIAM
First Defendant

AND:
BEN NENEO AS PROVINCIAL POLICE COMMANDER OF MADANG PROVINCE
Second Defendant

GARI BAKI AS COMMISIONER FOR POLICE OF PAPUA NEW GUINEA
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2020: 7th August, 1st September
PRACTICE AND PROCEDURE – filing defence out of time – principles to consider to allow defence out of time – appropriate jurisdictional basis for the State to seek extension – Claims by and Against the State Act 1996 – Section 9 – extension granted.
The state did not file its defence within the time stipulated under the National Court Rules and the Claims By and Against the State Act 1996. The plaintiff filed for default judgment and the defendants filed a motion seeking extension of time to file defence out of time.

Held:

(1)	In the circumstances it was appropriate to consider first the application seeking to file defence out of time.

(2)	For the State, the appropriate jurisdictional basis to seek leave to file defence out of time is Section 9 of the Claims By and Against the State Act 1996.

(3)	When considering whether to grant extension of time, the considerations are as set out in the case of Tipaiza v Yali, Governor of Madang Province (2005) N2971. These considerations are applied to the circumstances of this case, and they are:

•	What is the extent of the delay?
•	What are the reasons for the delay?
•	Does the defendant appear to have a good defence?; and
•	Where do the interests of justice lie?

(4)	In the circumstances, where there was a defence on the merit, and the interests of justice favoured granting of the extension, much weight was given to this as opposed to the considerable delay and that no explanation for the delay was given.

(5)	The interests of justice requires the consideration of the underlying values and principles of the country as enshrined in the Preamble of the Constitution, including the National Goals and Directive Principles, Basic Rights and Basic Social Obligations, especially the clear wish of the people to reject violence as a means of resolving disputes.

(6)	Since the delay was considerable and no explanation was given for the delay, an appropriate order for costs is made in favour of the plaintiff.

Cases Cited:
Giru v Muta (2005) N2877
Lorma Construction Ltd v State (2012) N4636
Tipaiza v Yali, Governor of Madang Province (2005) N2971

Legislation cited:

Claims by and Against the State Act 1996
Constitution

NOTICE OF MOTION

This is a ruling on two notices of motion for default judgment and seeking extension of time to file defence out of time.
Counsel
Mr B Wak, for the Plaintiff
Mr E Manihambu, for the Defendants

					RULING 
1	September, 2020

1.      NAROKOBI J: 	Before me now are two motions – one by the plaintiff for default judgement and the other by the defendants seeking extension of time to file its defence out of time. I opted to deal with both motions together, and I heard the application for default judgement first and then the application seeking extension of time.

A	ISSUES

2.     My view is that the issue for now is whether the defendants should be granted leave to file defence out of time. If that is decided in their favour, then that takes care of the plaintiff’s application for default judgment.

B	BACKGROUND AND A PRELIMINARY ISSUE

3.      The background of this is that on or about 9 December 2017 in Madang town, there was a fight between the Security Guards at Kekri Lodge Hotel and men from Wagol. Police attended the scene. In the time they were there, the first defendant shot the plaintiff in the foot. The identity of the alleged tortfeasor and the incident is not denied by the defendants. What is at issue is the manner in which the shooting occurred.

4.      The State did not file its defence within the statutory time period under the Claims By and Against the State Act 1996.

5.         After hearing learned counsel for the plaintiff, I am satisfied, that the formal requirements for default judgement as set out in Giru v Muta (2005) N2877 have been met. It is as to the discretionary elements of the entry of default judgement that I consider the application of the defendants. I am of the view that if the application of the defendants succeeds, then that will cater for the outcome of both motions.

6.      The first issue I however deal with, is the competency of the application by the defendants, in terms of its appropriate jurisdictional basis. The defendants rely on section 9 of the Claims by and Against the State Act 1996.The plaintiff contend that the application should come under the relevant provisions of the National Court Rules, being Order 1 Rule 15(1).

7.      This is an interesting issue. I have had recourse to case authorities on this point such as Lorma Construction Ltd v State (2012) N4636 which held that the State cannot rely on Order 1 Rule 15(1) of the National Court Rules to seek extension of time, but instead rely on section 9 of the Claims by and Against the State Act.

8.     I respectfully take the same position as the ruling in Lorma in this case and hold that Section 9 of the Claims by and Against the State Act is the appropriate provision and therefore conclude that the defendants have relied on the correct jurisdictional basis in their application. I leave the issue of the appropriateness of Order 1 Rule 15(1) of the National Court Rules for another day. What the defendant seeks to do, is to obtain extension of time provided for under the Claims By and Against the State Act. It is therefore appropriate that they rely on the power conferred by this Act to seek extension of time.

C	LAW AND APPLICATION OF THE LAW TO THE ISSUES

9.      I now turn to the application of the defendants, that is whether the court should grant them leave to file defence out of time. I consider the case of Tipaiza v Yali, Governor of Madang Province (2005) N2971 as setting out the relevant considerations to grant leave to file defence out of time. These considerations are:

•	What is the extent of the delay?
•	What are the reasons for the delay?
•	Does the defendant appear to have a good defence?; and
•	Where do the interests of justice lie?

10.     I apply these principles here in relation to the particular circumstances of this case.

(i)	Extent of Delay

11.     Under the Claims By and Against the State Act, Section 9 (a)(i), the National Court Rules, order 4 Rule 11 and the Interpretation Act, section 11(1)(a), the state has 90 days to file its defence. The 90 days run from the date of service of the writ. The writ was served on 10 September 2019, so the 90 days would expire on or about 10 December 2019. Taking this into account I turn to the extent of the delay.

11.      The defendants filed its Notice of Intention to Defend on 16 July 2020, and the application seeking extension has been filed on 5 August 2020, that is some eighth (8) months after due date for the filing of their defence.

12.      I am respectfully of the view that there has been a considerable delay in relation to this matter. This consideration therefore favours the plaintiff.

(ii)	Reasons for the Delay

13.      What are the reasons for the delay? For this consideration, surprisingly the defendants have provided no reason at all through evidence, as to why they have not filed their Defence within time. This consideration also favours the plaintiff.

(iii)	Defence on the Merit

14.      The next consideration is whether the defendants have a good defence on the merit, such that it should be allowed an opportunity to be heard.

15.      The defendants rely on the affidavit of the first defendant (affidavit of Senior Constable Solomon William filed on 5 August 2020), the alleged tortfeasor. He says that at the time of the incident, the plaintiff was holding on to two machetes, and running towards his colleague Constable Bonny Kunmain what he says, as an attempt to slash him. The first defendant began by firing a warning shot. This did not stop the plaintiff, who continued on towards his colleague. The first defendant was left with no option, but to shoot the plaintiff in the foot to stop him from attacking his colleague.

16.      The first defendant attaches a draft defence which more or less confirms his affidavit deposition.

17.      The evidence presents a scenario of who to believe. This is a matter for trial. Since the evidence comes directly from the alleged tortfeasor, and he provides a reasonable explanation of the circumstances in which he discharged his firearm, I consider that there is a defence on the merit. This consideration therefore favours the defendants.

(iv)	Interests of Justice 

18.      The final consideration is the interests of justice. In Tipaiza, Cannings J took into account the fact that the State stood to lose a considerable amount of money if the matter was not defended. Although I presume the amount of money involved in this case is not as large as in Tipaiza, I am of the view from the facts of this case, a case which centres on violence,the interests of justice,  requires consideration of the founding ideals of the country in the Preamble of the Constitution (which includes the National Goals and Directive Principles, Basic Rights and Basic Social Obligations) quite apart from monetary considerations, to determine how the State has lived up to the high ideals of the country. The Preamble clearly expresses the people’s desire to “…reject violence as a means to resolving disputes.” This case, however, is one which embraces violence instead of rejecting it – ordinary citizens resorting to violence to resolve a dispute and the police responding in kind by violence, to arrest the dispute. Given the difficult circumstances the police were faced with at the time in executing their duties,being in a crowded environment where matters can quite easily spiral out of control, I am led to form the view that the State ought to be given an opportunity to further explain their actions.To that end, my view is that the State must explain whether the force or violence it exerted upon the plaintiff, a person it has sworn to protect, falls within the confines of the law. This consideration therefore favours the defendants.

D	WEIGHING THE CONSIDERATIONS

19.      In weighing out the considerations, I place much weight on the finding that there is a defence on the merit, the interests of justice and consequently the opportunity to be heard. I do this for the simple reason that the State should be afforded an opportunity to be heard and explain how it has exercised the power of the people in the manner it has in this case, given the difficult circumstances the police was required to perform their duties in a crowded and rowdy environment. I will therefore grant leave to the Defendants to file defence out of time.

20.     As I have found that the defendants should be granted leave to file their defence out of time, I am of the view that the defendant’s motion for default judgement should be refused. 

E	COSTS

21.      Since the delay by the State has been considerable and it has not provided any explanation at all as to why it did not file its defence in time, I am of the further view that the state must pay the plaintiff’s costs incurred in relation to the plaintiff’s motion for default judgment and also the costs incurred to defend the defendant’s motion to seek extension of time to file defence out of time at a fixed sum  of K1,000.

F	ORDERS

22.      After considering the circumstances of this case and the relevant law in relation to this matter, I make the following orders:

1.	The defendants are granted leave to file its defence within seven (7) days from the date of this order;
2.	The plaintiff’s application for default judgement is refused;
3.	The State shall pay for the plaintiff’s costs in relation to the motion for default judgment and the motion for extension of time to file defence out of time in the fixed sum of K1,000.00; and
4.	Time is abridged.  
Judgment and orders accordingly.

Bradley Wak Lawyers: Lawyers for the Plaintiff
TauvasaTanuvasa, Solicitor General: Lawyers for the Defendants