N1418

PAPUA NEW GUINEA
[In the National Court of Justice]

W.S. NO. 567 OF 1994

BETWEEN:

KOOPA YANGAL & OTHERS
- Plaintiffs -

AND:

HENRY TOKAM
- First Defendant -

AND:

THE STATE
- Second Defendant -

MOUNT HAGEN: INJIA, J
1996: 1ST APRIL

Practice & Procedure - Default Judgment - Application to set aside - Grounds of - Judgment irregularly entered - Whether Defence filed after the close of pleadings at central registry in relation to proceedings filed in sub-registry, and Defence not before the Court at the time motion was heard renders the default judgment irregular - National Court Rules O.1 r.8, O.4 r.38, O.12 r.23, 35.

Held:

(1)	Pursuant to O.8 r.23, a Defence filed after the close of pleadings without leave of the Court being first obtained is invalid.

(2)	Default Judgment entered at Mount Hagen National Court in ignorance of late Defence filed at the central registry at Waigani does not render the default judgment irregular.

(3)	It is good practice to file Notices or pleadings at the registry or sub-registry where the originating process is filed.

Cases cited:
Green & Company Pty Limited -v- Green [1976] PNGLR 73
The Government of Papua New Guinea -v- Barker [1977] PNGLR 386
SCA 57/95 Robert Laurie Company Pty Ltd -v- Century Group Pty Ltd & Anor
Unrep. Supreme Court Judgment dated 6 March 1996

M. POKIA for the Applicants/Defendants
P. DOWA for the Respondents/Plaintiffs

1ST APRIL 1996

INJIA, J: This is an application by the Defendants pursuant to Order 12 r.35 of the National Court Rules seeking to set aside the default judgment entered on 5 May 1995 which was in default of filing Defence. A sealed copy of the default judgment was forwarded by the Plaintiffs’ lawyer to the Solicitor General under cover of letter dated 8 May 1995. On 11 May 1995, the Solicitor General wrote to the Plaintiffs’ lawyer saying they already filed a Defence on 10 March 1995 at the Waigani Registry even though the proceedings were filed at the Registry here. A copy of the Defence is on the Court file and is noted as being received at the Registry here on 16 May 1995. The Plaintiffs’ lawyer received a copy of the Defence from the Solicitor General on 11 May 1996. On 9 June 1995, the Plaintiffs’ lawyer wrote another letter to the Solicitor General advising them of the Default Judgment. The Defendants purportedly filed this application on 7 March 1996. That is a delay period of about ten (10) months since the Defendants’ lawyers were notified of the default judgment by the Plaintiffs’ lawyer.

It was apparent from discussions I had with Counsel for the Applicants, Mr Pokia, that the Defence was filed about two (2) months after the close of pleadings, assuming that the Defendants’ lawyers were right in filing the Defence at Waigani. At the time the Plaintiffs’ lawyer filed the Motion seeking default judgment, a search had been conducted of the Court file held at the Mount Hagen Registry and ascertained that no defence had been filed. The Plaintiffs’ lawyer was unaware of the defence being filed at Waigani nor were they notified by the Solicitor General before the application for default judgment was made. It appears that the Court then was unaware that a Defence had been filed when it entertained the Plaintiffs’ application.

Two questions arise for consideration. Is the filing of a Defence in a Registry of the National Court other than at the Registry where the originating process is filed in compliance with the National Court Rules? If it is the case, does the effect of a Defence filed out of time preclude the Court from granting default judgment? I will consider the first question letter.

In relation to the second question, Pursuant to O.12 r.23, the pleadings on a statement of claim "shall unless the Court otherwise orders, be closed as between any plaintiff and any defendant, or the date of expiry of the last of the times fixed by or under the Rules for filing a defence". The intention of O.8 r.23 is that if a defendant wants to file his defence out of time or after the pleading are closed, then he must seek leave of the Court. If he does not, then what is the consequence of it? O.1 r.8 provides that the "Non-compliance with any of these Rules, ... shall not render any proceedings void, unless the Court so directs".

The combined effect of O.1 r.8 and O.12 r.23 is that they give the Court wide discretion to declare void a defence or any other pleading filed after the pleading are closed, without leave of the Court. This is a judicial discretion which is to be exercised on reasonable grounds have regard to all the relevant circumstances. Relevant factors include the length of delay in filing the pleading, the failure or delay in giving notice to the opposing party of the pleading being filed out of time and the delay in application being made to the Court for leave to allow or ratify the pleading. In the present case, there was almost two minutes delay in 

filing the Defence, no notice of it was given to the Plaintiffs’ lawyer until after the Default Judgment was served on the Defendants’ lawyer and not application was made either before or after the filing of the Defence. The Court which heard the application for default judgment was unaware of the Defence being filed at Waigani.

But then, O.4 r.38(1) requires the Plaintiff to serve the Notice of Motion and supporting documents on the Defendants who has filed a Notice of Intention to Defend. No application was made by the Plaintiff to dispense with the requirements for service, etc. as required by O. 4 r.38(2). However, even if they were served, this failure would have been of little or no consequence to the application because they did not have a valid argument insofar as the filing of a Defence in concerned, to prevent the default judgment being entered. There is also the delay of some 10 months since being notified of the Default Judgment, in bringing this present application and I would think that even if they were served with the Notice of Motion, there is reason to doubt their appearance in Court to defend the application for default judgment.

The Court has discretion to set aside a default judgment previously ordered by the Court. The principles applicable to such application are set out in Green & Company Pty Ltd -v- Green [1976] PNGLR 73 and The Government of Papua New Guinea -v- Barker [1977] PNGLR 386 which the Supreme Court recently applied in SCA 57/95 Robert Laurie Company Pty Ltd -v- Century Group Pty Ltd & Anor, Unrep. Supreme Court Judgment dated 6 March 1996. The principles are:-

1.	The applicant must explain the reason why the judgment was allowed to be entered.

2.	The application to set aside judgment should be made promptly on the merits.

3.	The applicant must show that he has a prima facie defence on the merits.

4.	As a matter of practice an application to set aside a judgment by default regularly obtained should be granted only on an affidavit disclosing a defence on the merits.

In my view, the Default Judgment was regularly entered by the Court. The applicant’s explanation as to why they allowed the default judgment to be entered is not satisfactory. There has been undue delay in bringing this application.

In relation to a defence on the merits, the affidavit of Mr J. Kawi attaches 3 affidavits from policemen who concluded from their investigations that the destruction may have been caused by warring enemy clansmen in their tribal fights. It appears that these reports were prepared after the Defence was filed. In the Defence, the Defendants do not plead this defence. And no application has been made by the Defendants to seek leave of the Court to file the Defence which they filed out of time and to amend the Defence to plead this defence. Even then, the reports of the police officers admit a police operation was conducted in the area in the material period to arrest a known suspected criminal but they do not positively affirm that the destruction of the Plaintiff’s of purportedly occurred in 

a tribal fight. They only think the destruction may have been caused in a tribal fight. For these reasons, it is my firm view that the applicant has not shown a defence on the merits.

Finally, in relation the second question, with the location of resident National Court judges in major regional centres, sub-registries have been established and proceedings have been instituted in these sub-registries. Whilst it may be permissible to file Notices or pleadings at another sub-registry or the main registry at Waigani in respect of proceedings filed in a sub-registry, as a matter of good practice, such notices or pleadings should be filed in the same registry or sub-registry where the proceedings are filed. The problems encountered by the Plaintiffs and the motion judge in these proceedings serves as a good example of why this practice should be followed by all lawyers.

For these reasons, I dismiss the Defendants’ application with costs to the Plaintiff.

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Lawyer for the Applicants/Defendants: SOLICITOR GENERAL
Lawyer for the Respondents/Plaintiffs: PAULUS M. DOWA Lawyers