N352
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

HARTLEY COMPUTER PTY. LTD.

V

NIUGINI COMPUTER SERVICES PTY. LTD.

Waigani
Pratt J

19 February 1982
23 February 1982

PRACTICE AND PROCEDURE - "Pleadings" - What constitutes - Special endorsement on writ - Delivery of during vacation - Direction for required - National Court Rules O. 90 rr. 3, 4, 6, 8.

PRACTICE AND PROCEDURE - "Service" - Delivery - Distinction - National Court Rules O. 10 r. 2, O. 90 r. 3.

The special endorsement on a writ of summons is a pleading for the purpose of the National Court Rules, and delivery of a specially endorsed writ during the court vacation therefore requires permission or direction of the court in accordance with O. 90 r. 3.

Service of a document is a special form of delivery requiring in addition to the handing over of a document certain additional elements such as showing the original, tendering conduct money, etc.

Cases Cited:

Chitty v. Mason [1926] V.L.R. 419.
Papua New Guinea, The Government of and Davis v. Barker [1977] P.N.G.L.R. 386.

Notice of Motion

This was a notice of motion by the defendant seeking to set aside a judgment obtained by default.

Counsel:

J. Fuller, for the plaintiff.
J. Gawi, for the defendant.
Cur. adv. vult.

23 February 1982

PRATT J: On 24th December, 1981, the plaintiff issued out of the registry a specially endorsed writ claiming the "equivalent in kina of $A51,559.29".

The affidavit of service sworn on 5th January, 1982, is defective in several respects. In the first place it states that service was effected "by delivering to him and leaving with him a true copy of the said writ". Obviously in the case of a registered company this cannot be so. The inference however from the address on the writ of summons and the address contained in the affidavit of service is that the writ was left at the registered office of the company, and I overrule an objection as to the affidavit of service raised by Mr. Gawi. In the final upshot, the question of whether or not the writ was served on the registered office of the company was met by leave being granted to file a fresh affidavit which disclosed that the address upon which the original writ was left was indeed the address of the registered office of the company.

By affidavit sworn 5th January, 1982, it appears that a search was carried out by the plaintiff in the office of the registrar of the court which disclosed that no record of appearance had been filed in the registry.

The Rules state that appearance must be entered within ten days of service on the defendant of the writ of summons. In normal circumstances a failure to enter such appearance by the close of business on 4th January, 1982, would entitle the plaintiff to enter judgment on 5th January, and this indeed is what was done.

Certain objections have also been taken to the use of a conversion rate from Australian dollars to kina as at the date of judgment but it is not necessary for me to deal with this aspect.

By notice of motion dated 12th January, 1982, and filed in the registry on that date, the defendant seeks an order to set aside the judgment on several grounds including one which claims that as the specially endorsed writ amounted to a pleading it was served during vacation without leave of a vacation judge. It is clear that no such leave was obtained and argument at bar primarily centered around the question of whether the entry of an appearance by the defendant amounted to a pleading within either r. 3 or r. 4 of O. 90 of the National Court Rules. This was unfortunate because the answer to the whole matter lies in the proposition put forward in the defendant’s par. 2 of his notice of motion alleging that the endorsement amounts to a pleading and the problems arising from an endeavour to force a notice and entry of appearance into the definition of pleading in the ultimate does not really arise.

The affidavit in support of the defendant’s notice of motion, discloses that the solicitor for the defendant company left Port Moresby on 28th December, 1981, and returned on the afternoon of 5th January, 1982. As he was ill on the following day he did not attend his office but went there on the next day, 7th January, when he was advised by his secretary that a representative of the defendant company had delivered to his office the copy writ on 4th January. During the visit to the registry to file an appearance and notice of appearance, it was observed that judgment had been entered in the matter on 5th January. I cannot understand the matter sworn to in the affidavit of Mr. Gawi that the appearance and notice of appearance were filed, as the court records show that no such filing took place.

By Rules of Court dated 7th September, 1973, the court vacation is still from 15th December to 14th February. The historical reasons for a two months vacation are still to some extent operative. Traditionally the court vacations were often associated with religious holidays and no doubt in this modern day and age such association is felt by some to be completely inappropriate. Nevertheless, the facts of this very case highlight the absolute necessity for some break to exist over a period of twelve months unless a matter of some urgency arises in which case of course the services of a vacation judge are always available.

The term "pleading" is not defined in our Rules but it is useful to bear in mind that those rules are based exclusively on the Queensland Supreme Court Rules which of course were originally brought into operation under the provisions of the Queensland Judicature Act 1876. In that Act a definition does appear of the term "pleading" as follows:

"... shall include any petition or summons and also shall include the statements in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto and of the answer to the plaintiff to any set-off or counterclaim of a defendant."

Although the Judicature Act has no application to the Independent State of Papua New Guinea, and my brief researches seem to indicate that the Act was never adopted into either Papua or New Guinea prior to Independence, I have no doubt that the definition set forth in the Act is one to which any of the earlier judges would have resorted had the occasion arisen. In an attempt to arrive at a definition in our Rules, I myself have no hesitation in adopting such definition and I do not see the necessity for going outside it. Just as by no stretch of the imagination a notice of appearance could be regarded as a pleading, I think it is equally obvious that the special endorsement on a writ of summons is a pleading and a most specific one at that. It is clear from O. 92 r. 6 that court holidays are to be distinguished from court vacation. Order 90 r. 3 says:

"Pleadings shall not be delivered or amended in vacation unless directed by a court or a judge."

Rule 4 goes on to state:

"The time of the vacations shall not be reckoned in the computation of the times appointed or allowed by these rules for filing, amending or delivering any pleading, unless so directed by a court or a judge."

It is clear to my mind therefore that before the specially endorsed writ was delivered to the defendant, it required permission or direction from a judge to do so and thus the plaintiff has failed to deliver a writ and endorsement in accordance with the Rules. I am further of the view that the signing of judgment as a result of a failure to enter an appearance was carried out in contravention of the Rules because the period of ten days in which to enter an appearance did not run during vacation without a direction from a judge as required under r. 4.

The plaintiff has sought to distinguish service from delivery and therefore submitted that where rr. 3 and 4 mention delivery of pleadings, this is not the same thing as service of a writ. In my view this submission cannot be substantiated. Order 90 r. 8, for example speaks also of service of pleadings, notices, summonses etc. and the two words are again found interchangeably used in O. 10 r. 2 where we find:

"Personal service shall be effected ... by delivering to and leaving with ... a copy of the writ, summons or other document ..."

Service is a special form of delivery, that is, one which requires in addition to the handing over of a document certain additional elements such as showing the original, tendering conduct money, etc.

Although the case of The Government of Papua New Guinea and Davis v. Barker [1977] P.N.G.L.R. 386, was concerned with setting aside a default judgment for want of pleading under O. 31 r. 15, nevertheless there are certain statements of the law which are equally applicable to the present set of circumstances. For example it is clear that a distinction must be made between "judgments which are regularly obtained in good faith and judgments which are irregularly obtained or obtained in bad faith. The first class are not in general set aside save upon an affidavit of merits. The second class are set aside ex debito justiciae (as required in the interests of justice) irrespective of the merits of the party applying.": Frost C.J. at p. 390 of the report where he cites Dixon A.J. in Chitty v. Mason [1926] V.L.R. 419 at p. 423 in a decision of the Supreme Court of Victoria. The present application of course must be made under O. 15 r. 10 which is a specific rule dealing with the setting aside of judgments in default of entry of appearance. Although once again the facts are not the same as in Barker’s case, there is certainly a similarity in the "snapping on" of judgment typified in that case and mentioned by Kearney J. (as he then was) at p. 399 of the judgment. In the present circumstances and bearing in mind the "snapping on" occurred over the festive season, this aspect is really only pertinent to the question of costs. On the matter of costs I think the following features must be borne in mind.

1. As a result of some inexperience in the registry, judgment was allowed to be entered during vacation without the clerk concerned checking as to whether or not the necessary direction had been given on the pleadings by the court or a judge of the court. Of course the inexperience is not restricted to the staff of the registry office but is clearly disclosed in the actions of the plaintiffs solicitors in proceeding on such a course without carefully checking on the possible outcome. The fact that it was the Christmas/New Year period alone should have perhaps suggested some caution.

2. The plaintiffs solicitors to some extent compounded the error by writing to the Registrar on 25th January, pointing out that although the defendant’s solicitors filed on 12th January, 1982, a notice of motion to set aside judgment, they noted that the next motion date was 19th February, 1982, and requested confirmation from the Registrar as a matter of urgency leaving the defendant if he wished to take steps to restrain the Sheriff from executing the writ of fieri facias.

I will however reserve the question of costs for further submission. In the meantime the order of the court is that the judgment entered by the plaintiff on 5th January, 1982, in connection with this matter is hereby set aside together with all subsequent proceedings. I further order that the time for entering appearance will cease at 4.00 p.m. tomorrow, 24th February, and that time running for delivery of defence commence from that date.

[Following submissions by counsel the court awarded costs of this application to be paid by the plaintiff.]

Orders accordingly.

______________________________________

Solicitors for the plaintiff: Gadens.
Solicitors for the defendant: Richard Major, Gawi & Associates.