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Paraka v Kawa [2000] PGNC 40; N1987 (4 September 2000)

N1987

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. No. 519 of 1997

Between:

THOMAS PARAKA & 4 OTHERS

Plaintiffs

And:

MATHEW KAWA

First Defendant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mt. Hagen: Hinchliffe J
2000: 4th September

CIVIL LAW ¾ Notice of Motion to set aside a default judgment and seeking leave to file a Defence ¾ Notice of Intention to Defend filed in time ¾ Notice of Motion for the default judgment was not served on the defendants ¾ Was the judgment by default irregularly entered?

Counsel:
P. Kunai for the plaintiffs.
J. Kumura for the defendants.

4th September, 2000

Hinchliffe J: The Second Defendant moves the court for the following Orders:

"1. That the Default Judgement entered against the First and Second Defendants on the 19th June, 1999 be set aside.

2. That the First and Second Defendants be granted leave to file their Defence out of time.
   
3. Costs be in the cause.
   
4. Any further orders that the Court sees fit to make."
   

I should say from the beginning that it would seem to me that the Acting Solicitor General may well have a conflict of interests in this case in acting for both the second and third defendants. I say that because in the Notice of Intention to Defend filed on the 3rd July, 1997 it is clearly worded that the Solicitor General is acting for the defendants. Subsequently a proposed Defence has been annexed as "F" to the affidavit of John Kamura, dated the 20th May, 1999, generally accusing the second defendant of acting unlawfully and without authorization of the third defendant. A conflict presumably has arisen and the Solicitor General needs to look at the situation again as far as legal representation is concerned.

No one could deny that this has been a fairly long drawn out matter. The Writ of Summons was served on the 20th June, 1997, although there is a suggestion that it was on the 20th May, 1997. Needless to say it seems to be accepted between the parties that the correct date is the 20th June, 1997. A Notice of Intention to Defend was filed on the 3rd July, 1997 even though it seems to have gone missing from the Court file. Again it appears that there is no dispute between the parties that it was filed on the 3rd July, 1997 and a copy thereof is annexure "D.1" to the said affidavit of John Kumura.

A Defence has never been filed by the defendants and hence on the 10th June, 1999 the plaintiffs obtained a default judgment with damages to be assessed. Costs were ordered to be in the cause. That Notice of Motion seeking a default judgment was filed well before the 10th June, 1999, being the 6th January, 1998. It is not disputed that even though the defendants lawyer was given several notices in writing by the plaintiffs’ lawyer that he would take out a default judgment if a Defence was not filed, there was never a Notice of Motion served indicating that intention to the defendants and also, there was not any notification of the date on which the plaintiffs would make such an application. On that basis Counsel for the defendants has submitted that the default judgment was entered irregularly and it should be set aside forthwith. He has also submitted that in the event that this Court found that the judgment had been entered regularly then he submits that the judgment should also be set aside as he has adequately covered the requirements as set out in Greene v. Greene [1976] PNGLR 73; Barker V. The Government of PNG [1976] PNGLR 340; George Page Pty Ltd V. Malipu Bus Balakau [1982] PNGLR 140.

Those requirements are:

1. That an explanation must be given as to why the judgment was allowed to go by default.
   
2. That the application must be made promptly.
   
3. That there must be a supporting affidavit setting out a Defence on the merits.
   

Judgment Irregularly Entered.

O4 r.37 of the National Court Rules provide:

"37. Interlocutory or other application in proceeding.

An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion."

O.4 r. 38 of the said Rules provide:

38. Notice necessary. (19)(2)
    
    • (1) Subject to Sub-rule (2), a person shall not move the Court for any orders unless before moving he has file notice of the motion and has served the notice on each interested party who has an address for service in the proceedings.
      
    • (2) A person may move the Court without previously filing or serving notice of the motion¾
      
      • (a) where the preparation of the notice, or the filing or service, as the case may be of the notice would cause undue delay or other mischief to the applicant; or
        
      • (b) where each party interested, other than the applicant, consents to the order; or
        
      • (c) where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service, as the case may be of notice of the motion; or
        
      • (d) where the Court dispenses with the requirements of Sub-rule (1).
        
    • (3) Except with the leave of the Court, and subject to these Rules, a motions shall be moved only on a date fixed by the Court for the hearing of motions."
      

Also relevant are Practice Direction NCR 1/87 and Practice Direction NC 5/97. They read as follows:

PRACTICE DIRECTION NCE 1/87

DEFAULT JUDGMENT – OBLIGATION TO NOTIFY PERSON OR LAWYER FILING NOTICE OF INTENTION TO DEFEND.

In N588 – Mapmakers Pty Limited –v- Broken Hill Proprietary Company Limited, the Chief Justice has laid down the following principle to be followed when entering default judgments, namely that there must be a practice of forewarning lawyers of the opposite side (or the Defendant if in person) before entering judgment where there is a Notice of Intention to Defend filed.

In the even that this does not occur, then this failure may be a ground for setting aside the Judgment.

PRACTICE DIRECTION NC 5/97 WEDNESDAY, 17 SEPTEMBER 1997

DEFAULT JUDGEMENT PROCEDURE

As of the date of this Practice Direction the practice of the court for the entry of Default Judgements will be that on meeting the requirements of Order 12 Division 3 fo the National Court Rules, the Registrar will give a date for a Motion to be heard.

Under the decision of Paraka v. Madang Provincial Government N1596 (Doherty J, September 12, 1997) the Registrar of the National Court is deemed not to have had the power to enter a Default Judgement. Only a Judge of the National Court can direct the entry of a Default Judgment.

Those persons submitting a Default Judgement will be required to provide the following:

• An Affidavit of Service;
• An Affidavit of Search;
• An Affidavit in support (including a letter to the other party if a Notice of Intention to Defend is filed);
• A form of Default Judgment;
• A Notice of Motion.
  

A date for hearing the Motion will be given by the Registrar at a date at least 3 days after the requirements of Order 12 Division 3 (and in respect of service on the State, the Claims by and Against the State Act 1996) are complied with.

The National Court Rules will be required.

The words, in NCR 1/87, "there must be a practice of forewarning lawyers of the opposite side (or the Defendant if in person) before entering judgment where there is Notice of Intention to Defend filed," are quite clear.

Again in NC 5/97 the words, "An affidavit in support (including a letter to the other party if a Notice of Intention to Defend is filed", are also clear. I say that even though it seems to be taking away the requirement under the said O4 r38(1) of the said Rules. That is, a letter now seems to be adequate notice rather then the service of the actual Notice of Motion.

Be that as it may, the plaintiffs’ lawyer has argued that he did give notice, by letter, to the defendants’ lawyer that if he did not file a Defence within a certain period then he would seek a judgment by default. He did not indicate the date that the application would be made. The question is, is that proper notice under the abovementioned Order and rules and the two said Practice Directions? I am satisfied that the notice given by the plaintiffs’ lawyer was inadequate. What he should have done was in addition to writing a warning letter he should have followed that up with a letter advising of the actual date of the application after he had been given a date. To my mind, that is a necessity as far as Practice Direction NC 5/97 is concerned. Quite frankly I believe that the Notice of Motion should be served on the defendant in accordance with the Rules of Court, but as indicated above, NC 5/97 seems to have relieved the plaintiff of that requirement. Taking all of that into consideration it is blatantly clear to me that where, at least, a Notice of Intention to Defend has been filed, the defendant must be notified of the date, time and place of an application for a judgment by default by the plaintiff. Proper notice was not given in the present case and I therefore find that the judgment by default ordered by the Court in the absence of the defendants’ lawyer on the 10th June, 1999 and entered on the 18th June, 1999 was irregular. I am aware that in the present Notice of Motion the entry date is referred to as the 19th June, 1999 but obviously it is meant to be the 18th June, 1999 and I need say no more about it.

I make the following Orders:

1. That the judgment entered against the defendants on the 18th June, 1999 be set aside.
   
2. That the defendants be granted leave to file a Defence or Defences within 14 days from today.
   
3. Costs be in the cause.
   
4. Time abridged.
   

Orders accordingly.
_________________________________________

Lawyers for the plaintiffs: Kunai & Co.
Lawyer for the defendants: Acting Solicitor General.