N1079

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

W.S. 16 OF 1991

SAMSON KAI & OS

V

THE STATE

Mount Hagen
Woods J

12 June 1992, 26 June 1992

PRACTICE AND PROCEDURE - writ of summons - notice to admit facts - effect of deemed admissions in default of answering - whether summary judgment available on deemed admissions.

Counsel:
P Kopunye for the Plaintiffs.

26 June 1992

WOODS J: The Plaintiffs are claiming damages for damage to their property caused by members of the police during a raid conducted by the Police on 5 April 1990. A writ of Summons was issued on 7 January 1991. The State filed a Notice of Intention to Defend on 11 February 1991 and a Defence on 26 March 1991. The Notice to set the matter down for trial was filed on behalf of the plaintiffs on 27 September, 1991. Then on 1 May 1992 a Notice to Admit Facts was filed on behalf of the plaintiffs and duly served on the Solicitor General for the State. There has been no answer on behalf of the State to this Notice and the lawyer for the plaintiffs is now moving for Judgement for the Plaintiffs in default of pleading and on the basis on the deemed admissions in the Notice to admit facts.

This application is made under O 9 r 29 and 30 of the National Court Rules:

29. Notice to admit facts

(1) 	A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice.

(2) 	If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.

30. Judgment on admissions.

(1) 	Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgment or make any order to which the applicant is entitled on the admissions.

(2) 	The Court may exercise its powers under sub-rule (1) of this Rule notwithstanding that other questions in the proceedings have not been determined.

The application is therefore made on the basis that the deemed admissions by default in r 29(2) is synonymous with "where admissions are made by a party" in r 30. The question is does the admission by default act with the same effect as a positive admission. The Court must examine the whole procedure of Judgment by default and the purpose of the Notice to Admit Facts.

Default Judgment is covered in O 12 r 24 to 36 although the main rule is r 25 which sets out when a defendant shall be in default and briefly it is when he has failed to file a defence. Division 4 of O 12 provides for summary judgment where there is evidence of the facts on which the claim or part is based. Does a default in reply to a Notice to admit facts mean that there is the evidence of those facts.

The provision for a Notice to Admit Facts appears in the Order for Discovery, Interrogatories and Admissions which are clearly matters to be considered as one prepares a case for trial. Pleadings are the means by which parties to actions allege the claim and defence and define the issues. Pleadings serve broadly speaking to inform each party of the case he will have to meet at the trial and to inform the court of the issues for adjudication. Once a defendant has filed a defence denying all matters raised by the plaintiff the matter can then come to trial. However there are further procedures that can be availed of to save a party the expense of proving facts and the Notice to Admit Facts is one such. Ideally if both parties carefully isolated all the relevant facts and agreed on what facts are relevant then there may be a great saving of court time and the cost of bringing the evidence to prove the facts. However, if a party is given the opportunity to save time and trouble by agreeing to facts for the purpose of easing the trial yet refuses to accede to this opportunity then the Notice to Admit Facts deems that for the purposes of the trial the facts are admitted. This then makes it easier for the plaintiff at the trial.

I notice that the rules do not specifically refer to default judgments in relation to the failure to answer the notice to admit facts. It may be matter for the discretion of the Judge for a summary judgment.

I am not satisfied that a deemed admission through failure to reply is sufficient for the purposes of obtaining a summary judgment as of right. Deemed admissions will however assist the plaintiff at the trial.

I therefore refuse summary judgment but order that the matter be set down for trial.

Lawyer for the plaintiffs: Kopunye Lawyers.