N9470

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 132 OF 2013

BETWEEN:
TONY KAGL
Plaintiff

AND:
FRAZER PITPIT - Public Soliciotr
First Defendant

AND
MICHAEL PEARSON - CHAIRMAN PNG TEACHING SERVICES COMISSION
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu J
2020: 2nd September
2021:	 4th May

PRACTICE AND PROCEDURE - Claim for damages - Requirements of s. 5 notice - Default judgment - Assessment of damages - Irregular entry of default judgment - Right of an aggrieved party to set aside irregularly entered default judgment - Such right being subject to exceptional circumstances. 

Cases Cited:
Papua New Guinea Cases

Anderson Aigiru v. The Electoral Commission and The State (2002) SC687
Arman Larmer Surveys Ltd v. Chan Consolidated Ltd (2013) SC1253
Jay Mingo Pty Ltd v. Steamships Trading Pty Ltd [1995] PNGLR 129 
John Bokin v. The Independent State of Papua New Guinea (2001) N2111
Kerenga Kaupa v. The Independent State of Papua New Guinea (2011) N2491
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2017) SC1641
Michael Wilson v. Clement Kuburam (2016) SC1564
Motor Vehicles Insurance Ltd v. Nominees Niugini Ltd (2015) SC1435 
Paul Marinda v The State (1991) N1026
 
Overseas Cases

Ramsden v. Dyson (1886) LR 1 HL 129 

Counsel:

Plaintiff – In person
E. Wurr, for the Defendants

4th May, 2021

1.	GAVARA-NANU J: On 29 June, 2007, the plaintiff issued proceeding WS No. 725 of 2007 claiming damages against Michael Pearson, a former Chairman of the PNG Teaching Services Commission and The State.  

2.	The plaintiff was a senior teacher at Gagl Primary School at Kerowagi, Chimbu Province in 1982.  He was dismissed from the Teaching Service by the Teaching Services Commission in 1983, following advice by the then Police Commissioner, Mr. David Tasion in a letter dated 11 January, 1982, that the plaintiff was previously convicted by a District Court for stealing K200 from Gagl Primary School and sentenced to 6 months imprisonment. The police Commissioner further advised that the plaintiff appealed his conviction and sentence, but the appeal was dismissed. 

3.    In 1994, the plaintiff was reinstated to Teaching Service by the Teaching Services Commission by an administrative decision.  

4.	In proceeding WS No. 725 of 2007 the plaintiff claimed among others, lost salaries, and entitlements for the period of his dismissal which was from 1983 to 1994. The plaintiff was represented by Lomai and Lomai Attorneys.  On 22 November, 2007, Lomai and Lomai Attorneys in a notice of motion sought entry of a default judgment against the defendants for failure to file a defence.  A s. 5 notice was given to the State in a letter dated 21 June, 2007, through the Office of the Solicitor General.  

5.	The motion was moved before Injia DCJ (as he then was).  The defendants raised the defence of statute-bar under s. 16 (1) of the Frauds and Limitation Act, 1988.  On 26 May, 2008, his Honour delivered his decision.  

6.	In the decision the learned Deputy Chief Justice after citing the background of the case, noted that the plaintiff did not dispute his criminal conviction and sentence and further noted that the plaintiff did not dispute the dismissal of his appeal against his conviction and sentence.  His Honour said grant of an entry of a default judgment is a discretionary matter for the court therefore even if ordinary requirements for entry of a default judgment were met, if the Court found that the default judgment was irregularly entered then the Court would still have power to set aside the default judgment. Such irregularity, as noted by his Honour may arise from abuse of court processes, bad pleadings, failure to establish a reasonable cause of action resulting from lack of s. 5 notice, statute-bar under s. 16 of Frauds and Limitation Act, 1988, issues being res judicata, issue estoppel and so on.  I respectfully agree with his Honour’s observations. In such situations, the court would in essence be enforcing the right of the aggrieved party to have the default judgment set aside. The aggrieved party would have the onus to prove the irregularity to invoke the power of the court to set aside the default judgment by seeking such remedy. See, Motor Vehicles Insurance Ltd v. Nominees Niugini Ltd (2015) SC1435; Paul Marinda v. The State (1991) N1026; John Bokin v. The Independent State of Paua New Guinea (2001) N2111 and Kerenga Kaupa v. The Independent State of Papua New Guinea (2011) N2491. 

7.	As a general rule, an irregularly entered default judgment is unenforceable in law, however, there may be exceptions where for example, the party for which the default judgment was entered had already acted upon the default judgment and the aggrieved party had acquiesced such action. In such situation the equitable doctrine of estoppel by acquiescence will lie against the aggrieved party and prevent the aggrieved party from enforcing its right to have the default judgment set aside. The court in the exercise of its equitable jurisdiction would not allow the aggrieved party to enforce its right. The party raising the defence of acquiescence nonetheless has the onus to prove its claim. The usual considerations of delay and defence on the merit in respect of applications to set aside regularly entered default judgments are irrelevant. See, Arman Larma Surveys Ltd v. Chan Consolidated Ltd (2013) SC1253. 

8.	The examples of how estoppel by acquiescence may arise and the onus on the party raising acquiescence to prove acquiescence were given by Lord Cranworth in Ramsden v, Dyson (1866) LR 1 HL 129 at 168, in which his Lordship said:   

“If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active, and to state my adverse title; and that it would be dishonest in my (sic.) to remain wilfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented. 

Accordingly, where the violator of the right neither proves that he was ignorant of it, nor that the owner of the right was aware of such ignorance, he cannot rely on the equitable doctrine any more than he can upon its common law counterpart; for (1) he neither shows that he was misled at all, nor states circumstances which would give rise to any duty on the part of the owner of the right to reveal the truth to him; and (2) he fails to show that ‘the acquiescence amounts to fraud”.  

9.	These equitable principles are now part of our underlying law. See, Jay Mingo Pty Ltd v. Steamships Trading Pty Ltd [1995] PNGLR 129 and Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2017) SC1641. In the latter case, the Supreme Court gave examples of situations in which different types of estoppel may be raised.
 
10.	In this case, the learned Deputy Chief Justice found that the plaintiff's application was statute-barred. His Honour said:

“On the face of the pleadings, the action is clearly statute – barred.  The six year period commenced to run from the date of his reinstatement when he was not paid his outstanding entitlements for the period pleaded.  The six years commenced to run from 1994 and lapsed in 2000.  The writ was issued 7 years later.  In any case, if the entitlements are due to him under s. 94, that is not pleaded in the Statement of claim.  Even if s. 94 was pleaded, it is not applicable to his case and so the action is without basis in law.

For these reasons, in the exercise of my discretion, I refuse to grant default judgement.  I suggest to the defendants that they either apply to dismiss the action for disclosing no reasonable cause of action or on the basis (of) time bar.  If not the issue should be raised by the parties or even by the Court of its own motion, at the trial and fully re-argued and determined…”

11.	Pursuant to Order 12 r 9 of the National Court Rules, (NCR), I am obliged to take judicial notice of the decision by Injia DCJ. 

12.	The proceeding, WS No. 725 of 2007 was eventually dismissed about 9 years later on 4 May, 2016, by Polume-Kiele J, for want of prosecution.  It is noted that at that hearing, none of the parties appeared before the Court.

13.	Notably in 2009, the plaintiff issued another proceeding, WS 814 of 2009, against Michael Pearson and The State.  It is important to note that the proceeding was issued while the previous proceeding WS 725 of 2007 was still on foot.  The particulars of the claims in WS 814 of 2009 are not before the Court but Annexure ‘D’ to the affidavit of Ms. Sharon Vate, a lawyer employed by the State in the Office of the Solicitor General, shows quite clearly that the plaintiff made similar claims as those in the previous proceeding WS 725 of 2007.  The Annexure ‘D’ to Sharon Vate's affidavit is a letter by the Public Solicitor who acted for the plaintiff in proceeding WS 814 of 2009, to the then Solicitor General.  The letter is dated 12 July, 2013, in that letter, the Public Solicitor gave a s.5 notice to the Solicitor General in which the plaintiff claimed lost entitlements. However, the proceeding was dismissed by the National Court per Davani J, because the s. 5 notice was given outside the 6 months statutory period prescribed under s. 5 of the Claims By and Against the State Act, 1996, for such notice to be validly given. 

14.	When dismissing proceeding, WS 814 of 2009, Davani J made a passing comment that the plaintiff had a potential claim against the Public Solicitor based on professional negligence for the purported failure to give the s.5 notice to the State within the 6 months prescribed statutory period. 

15.	It appears that the current proceeding, WS 132 of 2013, was issued because of the side comment made by Davani J. This may be a conjecture on my part, but it does give that appearance.  

16.	The plaintiff engaged South East Legal Group in this proceeding but they no longer act for him.  The plaintiff is therefore representing himself.  

17.	Having considered the material before the Court, I have concluded that the proceeding is an abuse of process.

18.	I find that all the proceedings issued by the plaintiff from the initial WS 725 of 2007 to this proceeding, WS 132 of 2013 overlap each other and are interrelated. As a result, this proceeding is duplicitous of the earlier proceedings.  Thus, the issues in this proceeding are also res judicata. There really is one central issue in all the proceedings which is whether the plaintiff is entitled to his lost salaries and entitlements and damages for the period he was dismissed from the Teaching Service. 

19.	I also find this proceeding mischievous because whilst the plaintiff is claiming damages against the defendants for the first defendant’s alleged failure in proceeding WS 814 of 2009 to serve a s. 5 notice within the prescribed statutory period, the fact remains that even if s. 5 notice had been served within time, proceeding WS 814 of 2009, was an abuse of process because it was issued while proceeding WS 725 of 2007 was still on foot and it raised similar issues as those in proceeding WS 725 of 2007. See, Michael Wilson v. Clement Kuburam (2016) SC1564.  
 
20.	The result is that even if s. 5 notice for proceeding WS 814 of 2009 had been served on time, the proceeding would have still had no reasonable cause of action.  There were multiple proceedings which raised similar issues.  See, Anderson Aigiru v. The Electoral Commission and The State (2002) SC687.  

21.	In proceeding WS 725 of 2007, after Injia DCJ, refused to grant entry of a default judgment, the plaintiff was supposed to have expedited the proceedings to trial.  He failed to do so. Instead, he left the proceeding to remain dormant until 4 May, 2016, when Polume-Kiele J, dismissed the entire proceeding for want of prosecution.    

22.	The Court has basis to exercise its inherent power to revisit the Order given by Salika DCJ (as he then was) to enter a default judgment against the first defendant on 18 July, 2014 for failure to file a Notice of Intention to Defend and Defence. The plaintiff is claiming damages against the defendants for professional negligence.  His Honour refused to enter default judgment against the second and third defendants because they were found to have filed their defence.  

23.	Thus, the trial in this proceeding was for the Court to decide whether the second and third defendants are liable for the plaintiff’s claims. 

24.	I have found that WS 814 of 2009, was an abuse of process and had no reasonable cause of action.  

25.  	The result is that the plaintiff has no reasonable cause of action against all the defendants. It follows that the default judgment entered against the first defendant on 18 July, 2014, was irregular, thus based on the relevant principles discussed above, must be set aside.  

26.	It follows that all the claims by the plaintiff against the defendants must be dismissed.  

27.	It is important to point out that the plaintiff has not produced the Statement of Claim in proceeding WS. 814 of 2009, he has also failed to produce the s. 5 notice given by the first defendant on his behalf in that proceeding.  These are relevant and vital documents because according to the defendants, had these documents been produced, they would have shown that the claims in proceeding WS 814 of 2009 were duplication of the claims in proceeding WS 725 of 2007, which were statute-barred.

28.  The omission of these documents by the plaintiff appears mischievous because the plaintiff has tried to attribute the omissions to his ill health which he said was also the reason for the delay in bringing his claims against the defendants. However, there is undisputed evidence, especially regarding proceeding WS 725 of 2007, that the delay by the plaintiff in making his claim for lost salaries was his conviction and sentence for six months for stealing by a District Court.  He has not volunteered this information to the Court. These facts are relevant to the issue of statute-bar.  When the case is looked at in its totality, this proceeding also suffers from inordinate delay, thus it is also in the interest of the public that litigation be brought to finality.

28.	The pleadings in the Statement of Claim are also vague, unclear, and insufficient.  They do not disclose a reasonable cause of action.

29.	For these reasons, the plaintiff’s claims are dismissed with costs.
_____________________________________________________________
Public Solicitor: Lawyers for the Defendants