N10437

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 607 OF 2022

BETWEEN:
HIGHLANDS PRODUCT LTD trading as ZENAG CHICKEN
-Plaintiff-

AND
POIYA KAPIE, EMMANUEL KAPIE & MARTO KAPIE trading as KAWANE TRANSPORT SERVICES
- Defendant-

Lae: Dowa J
2023:   11th & 15th August
PRACTICE AND PROCEDURE – application for default judgment-failing to meet the prerequisites of default judgment-application refused. 

Cases Cited:

Magiten v Beggie (2005) N2880, Giru v Muta (2005) N2877
Maki v Dokup (2012) N4838
Bala Kitipa v Vincent Auali (1998) N1773
John Kunekene v Michael Rangsu (1999) N1917
Tiaga Bomson v Kerry Hart (2003) N2428
Eliakim Laki v Morris Alaluku (2000) N2001
 Kunton v Junias (2006) SC929

Counsel:

J. Langah, for the Plaintiff
M. Kapie, Defendant in Person 

JUDGMENT

15th August 2023
            
1.	DOWA J.  This is a ruling on the Plaintiff’s application for default judgment. 

Facts

2.	The Plaintiff is the registered owner of motor vehicle, Toyota Hilus, Reg. No. SAD 807.  Its vehicle collided with the defendant’s vehicle at the round-about intersection of Air Corps Road and Milfordhaven Road, city of Lae (Snack Bar) on 31st October 2022.  The Plaintiff’s vehicle driven by one Ben Tule was on the inner lane while the defendant’s truck, a Prime Mover Reg. No. LBM 898, driven by one Anthon Kelly, was on the outer lane (left).  The defendant’s vehicle took off first, followed by the defendant’s vehicle.  It is alleged, whilst both vehicles were turning the round-about facing towards Lae Main Market direction, the defendant’s truck back end of the trailer encroached onto the Plaintiff’s Lane and caused damages to the left side of the Plaintiff’s Toyota Hilux.  The Plaintiff alleges that the accident was caused by the negligence of the defendant’s driver and thus files recovery proceedings seeking damages.

      	Application

3.	The Plaintiff, by Notice of Motion, seeks default judgment pursuant to Order 12 Rule 27 of the National Court Rules.  The Plaintiff relies on the affidavits of Ben Tule, Johnah Langah, and Robin Pomaleu and other affidavits filed in support of the application.  One of the Defendants, Marto Kapie, appeared for himself and other defendants and opposed the application, arguing that the accident was caused by the Plaintiff’s driver, rather than his driver and thus they are not liable.

ISSUES

4.     The issues for consideration are:

a)	Whether the defendants have defaulted. 
b)	Whether judgment be entered for the Plaintiff.

The law
5.     The Plaintiff seeks default judgment, against all the Defendants pursuant to Order 12 Rule 27 of the National Court Rules. Rule 27 reads: 
“27. Liquidated demand. (17/4)

(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.
(2) Where a claim for a liquidated demand includes interest at an unspecified rate, interest accruing after the date of filing the statement of claim to the date of entry of judgement shall, for the purposes of judgement under this Division be reckoned at the rate of 8% yearly.”

6.	The law on applications for default judgment under Order 12 Rules 25 and 27 of the National Court Rules is settled. The Court has a discretion whether to grant or not in the circumstances of each case. Refer: Magiten v Beggie (2005) N2880, Giru v Muta (2005) 2877, Maki v Dokup (2012) N4838, Bala Kitipa v Vincent Auali (1998) N1773, John Kunekene v Michael Rangsu (1999) N1917, Tiaga Bomson v Kerry Hart (2003) N2428, Eliakim Laki v Morris Alaluku (2000) N2001 and Kunton v Junias (2006) SC929. A study of the cases listed above show a wide range of considerations apply when exercising discretion which are:

1)	Whether the statement of claim raises serious allegations of fraud or deceit.
2)	The extent of default by the defendants.
3)	Whether the defendant appears to have a good defence.
4)	Whether the pleadings are vague, ie, where the statement of claim discloses no reasonable cause of action,
5)	Whether the Plaintiff has prosecuted his case diligently
6)	Whether the entry of judgment would prejudice the rights of co-defendants
7)	Whether the interests of justice would be preserved by the entry of default judgment.

Consideration

7.	 In the present case, the Plaintiff is claiming judgment for a liquidated sum of K 20,009.75. This claim is for the repair cost of the Plaintiff’s vehicle which the Plaintiff paid to Ela Motors.

8.	The first issue is whether the defendants defaulted. The original Writ of Summons was served by post on 20th December 2022.The Amended Writ of Summons was also served by post to the Defendants on 30th March 2023. Whilst the mode of service is unsatisfactory, the Defendants take no issue with service. Mr. Kapie submits that while they take no issue with service of the Writ, they dispute liability. When asked why they did not file their defence, Mr. Kapie explains, they were awaiting the decision of the traffic charge brought against the driver of the Plaintiff’s vehicle. Clearly, the Defendants defaulted in filing their defence.

9.	Should the Plaintiff be granted default judgment. The Plaintiff’s claim is based on negligence driving of the Defendants’ driver. Mr. Kapie argued in Court that their driver was not at fault. Rather it was the Plaintiff’s driver who war driving behind their truck who failed to keep his distance resulting in the accident.

10.	 A brief perusal of the facts shows the two vehicles were driving side by side around the bend. It seems the defendant’s truck went ahead taking the outer left lane while the Plaintiffs vehicle took the inner lane, cruising behind, though on its own lane. It is arguable that the driver of the Plaintiff should have been more careful in avoiding contact with the Defendants truck. This was the opinion of the police investigation officer who charged the Plaintiff’s driver with negligent driving pursuant to section 40(1) of the Road Traffic Act. Although the Plaintiff was found not guilty and was discharged by the District Court, the issue of liability is far from being resolved. It remains a live issue. I am not satisfied that the driver of the Defendants’ truck is to be squarely responsible for the accident. It is not in the interest of justice that default judgment be granted against the Defendants without a trial and assessment of evidence. The parties must give evidence and the evidence be properly tested in a trial. 

11.	 For the foregoing reasons, I am not inclined to grant the orders sought.

Costs

12.	  Although the Plaintiff failed in the application, it is entitled to cost because the Defendants defaulted in filing their defence which resulted in the application,

ORDERS

13.    The Court orders that:

1.	The Plaintiff’s application for default judgment is refused.
2.	The Defendants pay the cost of the application.
3.	The parties file their affidavits by 15th September 2023.
4.	The parties file and serve relevant notices under the Evidence Act by 30th September 2023,
5.	The matter is fixed for listing on 2nd October 2023.
6.	The Parties are at liberty to file any interlocutory application if they wish.
7.	Time be abridged.
_________________________________________________________________
Albright Lawyers: Lawyers for the Plaintiff
Marto Kapie	: Defendant for himself and on behalf of other Defendants