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Bellawa v Kasing [2020] PGNC 290; N8475 (12 June 2020)

N8475

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 238 OF 2015

BETWEEN:
RALPH BELLAWA
Plaintiff

AND
PURI KASING, JETHRO ARUA, ROBIN HIAHOWI
First Defendant

AND
GEOFFREY VAKI, COMMISSIONER FOR POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: Dowa AJ
2020: 2^ndJune &12^thJune

DEFAULT JUDGMENT – application by defendant to set aside default judgment and seek orders to file defence out of time – principles relating to setting aside of default judgment discussed – explanation for default, defence on the merits and delay in the application discussed – defendants application to set aside default judgment refused – matter listed for allocation of trial date for assessment of damages - Order 12 Rule (8) (2) National Court Rules

Cases Cited:

Green and Co. ltd v Green (1976) PNGLR 72
The Government of PNG v Baker (1976) PNGLR 349
Leo Duque v Avia Andrew Paru (1997) PNGLR

Counsel:

T. Dawidi, for the Plaintiff
B. Tomake, for the Defendants

RULING

12^th June, 2020

1. DOWA AJ: The Defendants by Notice of Motion filed 14/05/2020 seeks to set aside orders made on 20^th September 2019.

2. On 20^th September 2019, the Court (Makail, J) made the following orders:

“1. The First co-defendants, the Second and Third Defendants have not filed their Notice of Intention to Defend and Defence and time for doing so has expired.

2. Default judgement is entered against the first, second and third defendants with damages to be assessed.
3. That the defendants shall pay the Plaintiff’s costs of this application.
4. Time for entry of the orders be abridged to the time of settlement which shall take place forthwith.”
   

3. By Notice of Motion, the Second and Third Defendants seek the following orders:

“1. The Ex-parte Default Judgment entered on 20^th September, 2019 be set aside as being irregularly entered pursuant to Order 12 Rules 8(2) (a) and 35 of the National Court Rules.

2. Leave be granted for the Second and Third Defendants to file their Defence out of time pursuant to Order 7 Rule 6(2) of National Court Rules and Section 9(1) of the Claims By and Against the State Act.
3. Costs be in the cause.
4. Any further Orders this Honourable Court deems fit.”
   

4. Mr. Tomake who appeared for the Applicants, relied on the Affidavits of Ms. Maliaki sworn and filed 14^th May 2020, and his own affidavit sworn and file 14^th May 2020 in support of the application. Mr. Dawidi who appeared for the Plaintiff, relied on his own affidavit filed 28^th May 2020, in opposing the application.

Facts

5. It is alleged that on 27^th February 2014 at Hoskins Airport, the First Defendants being policeman in the course of their duties searched the office of Airlines PNG Ltd, where the Plaintiff works. The policemen then forcefully demanded and obtained from the Plaintiff K15,000 cash. The First Defendants then unlawfully detained the Plaintiff in the Police cells.

6. The Plaintiff filed proceedings in the National Court seeking damages against the Defendants. The First Defendant, Puri Kasing was served copy of the Writ of Summons on 17^th July 2015. The co-First Defendants, Jethro Arua and Robin Hiahowi were not served.

7. The Solicitor General entered appearance on behalf of the Second and Third Defendants on 18^th September 2015, and filed their Notice of Intention to Defend on the same day.

8. The First Defendant Puri Kasing filed his Notice to Defend and Defence on 21 September 2015. I note the Defence filed by the First Defendant was filed out of time, without leave of Court.

9. On 12^th August 2019, the Plaintiff filed a Notice of Motion seeking default judgment against all the Defendants.

10. On 20^th September 2019, the Plaintiff’s Notice of Motion was heard by Makail J, and entered Default Judgment, with damages to be assessed.

11. On 14^thMay 2020, the Second and Third Defendants filed the current Motion seeking to set aside the orders of 20^th September 2019.

12. Both counsel made oral submissions, as well as written submissions.

Law

13. The application is made under order 12 Rule 8(2) of the National Court Rules.

Order 12 Rule 8(2) reads and I quote:

“The Court may, on terms, set aside or vary a judgement

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or

(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.”

Order 7 Rule 6(2) National Court Rule

“(2)where a Defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time.

14. The principles relating to setting aside a Default Judgment is settled in this jurisdiction. See Green and Co. ltd v Green (1976) PNGLR 72; The Government of PNG v Baker (1976) PNGLR 349; Leo Duque v Avia Andrew Paru (1997) PNGLR. The considerations to satisfy the Court are:

1. Why the Judgment was allowed to be entered in the absence of the applicant.
   
2. If there is a delay in making the application to set aside, a reasonable explanation for the delay.
   

100. That there is a defence on the merits.
     

Explanation for Default

15. The Court file shows when the application for Default Judgment was heard, counsel for the Third and Fourth Defendants was present. It is however, not clear whether she opposed the application. From the facts before the Court, it is clear, the Defendants have defaulted in filing their Defence in time. Mr. Tomake for the Third and Fourth Defendant, submitted that the Judgment was irregular on the basis that two of the co-First Defendants were not served. Only one Puri Kasing was served the Writ of Summons.

16. Mr. Dawidi, maintained that the application was proper given that one of the co-first Defendant, was served.

17. I am of the view that, judgment was properly entered for the Plaintiffs. The Plaintiff can discontinue proceedings on the other two co-defendants who were not served, if he so desires because, he cannot enforce proceedings on the two accused who were not served. Secondly, the Second and Third Defendants can become vicariously liable for the actions of one of the First Defendant, as in this case, Mr Puri Kasing. The position would be different, if none of the first co-Defendants were served, a copy of the Writ of Summons.

18. Mr. Dawidi in his affidavit, deposed that Ms. Maliaki who was present in Court opposed the application. Thus, the judgment was not made ex parte. Ms. Maliaki, in her Affidavit says, Default Judgment was allowed to be entered because she was unable to get instructions from the three co-defendants, and also she was not allowed to make any submissions as they were late in filing their Notice of Intention to Defend.

Be that as it may, I am of the view that, no reasonable explanation was given for allowing the judgment being entered by default.

Delay in the Application

19. Judgment was entered on 20^th September 2019, Ms. Maliaki was present in Court when the orders were made. The application was not made promptly thereafter. This application was filed 14^th May 2020, seven (7) months after Default Judgment. There is no explanation, let alone, a reasonable explanation for the delay. This is because, the Defence they propose to raise is a Statutory Defence, and has been available then as it is now.

Defence on the Merits

20. The defence proposed by the third and fourth defendants is as follows:

1. The Plaintiff has no reasonable cause of action against the Defendants.
   
2. The First Defendants deviated from their lawful duties to engaging in conduct that is criminal in nature.
   

100. The Third and Fourth Defendants cannot be held vicariously liable for criminal conduct.
     

21. It is clear, the defence is formulated from the facts pleaded in the Statement of Claim. The proposed defence is not supported by material facts deposed to by persons, who has knowledge of these facts. The State can and is allowed to raise legal and Statutory Defences. I note the Solicitor General who acts for the Second and Third Defendants chose not to act for the First Defendants. I am not surprised that the lawyers could not get any co-operation from the first Defendants. Besides, the first Defendants had a search warrant and were on lawful duty. Vicarious liability can be found against the Third and Fourth Defendants.

22. For the forgoing, I refuse the Defendants application to set aside the Default Judgment of 20^th September 2019.

23. Having refused the First Defendant’s application to set aside the default Judgment, it follows that the Third and Fourth Defendants application for leave to file their Defence out of time is also refused for the same reasons.

ORDERS

1. The Third and Fourth Defendants’ Notice of Motion filed 14^th May 2020 is refused.
   
2. The matter is listed for allocation of trial date for assessment of damages.
   
3. The Defendants pay the cost of the application.
   
4. Time be abridged

Dawidi Lawyers : Lawyer for the Plaintiff
Office of the Solicitor General : Lawyers for the Defendants