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Kaluni v Warole [2001] PGNC 99; N2114 (13 June 2001)

N2114

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 198 OF 1997

BETWEEN:

ANTON KALUNI

Plaintiff/Cross - Defendant

AND:

AIYALE WAROLE

First Defendant/Cross – Claimant

AND:

WHATOLO BUSINESS GROUP INC.
Second Defendant/Cross – Claimant

Mt. Hagen: Davani, J
2001 : 25 May & 13 June

PRACTISE AND PROCEDURE – Application for Default Judgment - Affidavit of search, must state date on which court file was searched, discovery as to the default by the Defendant in filing the Defence within the time stipulated by the National Court Rules, references to the particular rule relied upon and details of expiration of the time limit – National Court Rules O.9 r.34, O.8 r.44, O.8 r.45, O.12 r.25, O.12 r.32 & O.12 r.34.

Cases Cited:

Kabil Worim and 101 Ors v Sergeant Koken and the State N1417 24 May 1996.

Kante Mininga v The State & 2 Ors N1458 [1996]

Bola Kitipa v Vincent Uali & 3 Ors N1773 25 September 1998

Counsel:
K. Peri, for the Plaintiff/Cross-Defendant/Respondent

P. Dowa, for the Defendant/Cross-Claimant/Applicant

13 June 2001

DECISION

(Interlocutory Application)

DAVANI, J: The both Defendants, who are also the Cross-Claimant/Applicants, through their Lawyer Mr. Paulus Dowa, filed a Notice of Motion on 6 April 2001 requesting the following orders;

"1. The Plaintiffs statement of claim be struck out;

2. Judgement be entered for the Cross-Claimants in the sum of K53, 000.00 with costs and interest.
3. Such further or other orders the court deems fit."
   

Facts

The Defendants filed a verified defence and Cross-Claim on 10 October, 2000. The Plaintiff through its Lawyer, filed a Notice of Intention to Defend the Cross-Claim on 14 December, 2000.

In support of the Application, Mr Dowa swore an Affidavit on 13 March, 2001 and filed it on 6 April, 2001. He also filed an Affidavit of Service of one Timothy Rank sworn on 18 May 2001 in which Mr. Rank deposed to having served the application for default judgement and cover letter upon the Plaintiffs Lawyers on 11 May, 2001.

The Plaintiff has not filed any affidavits in response and has, through his Lawyer, conceded that notice was given to him prior to this application being lodged and made. Should default judgement be entered?

Prima facie, it appears the applicant has compiled with procedure i.e Proper service, forewarning etc, however on a careful analysis of documentation filed in support of the application, one component is amiss ... the affidavit of search.

Mr Dowa relied on 0.12 r. 25 of the National Court Rules when moving this application. This section reads:

"25. Default

A Defendant shall be in default for the purposes of this Division:

(a) Where the originating process bears a note under Rule 9 of Order 4, and the time for him to comply has expired but he has not given the notice;

(b) Where he is required to file a Defence and the time for him to file his Defence has expired but he has not filed his defence; or

(c) where he is required under Rule 24 of Order 8 to verify his Defence and the time for him to verify his Defence in accordance with that Rule has expired but he has not so verified his defence."

The procedure to rely on when applying for Default Judgement is set out in Practise Direction NC 5/97 of 17 September 1997. When applying for Default Judgement, an applicant must file the following documents;-

• Affidavit of Service
• Affidavit of Service
• Affidavit in Support (including a letter to the other party if a Notice of Intention to Defend is filed)
• A form of Default Judgement
• A Notice of Motion
  

The Motion must also be served in accordance with Order 4 division 5 of the National Court Rules. This is reaffirmed in many decided cases one of which is Kabil Worim and 101 Others v Sergeant Koken and The State N1417 24 May 1996 where His Honour Injia, J held that pursuant to 0.9 R .34 of the National Court Rules, a default judgement can only be ordered by the court upon proof by the Plaintiff, by affidavit confirming due service of the originating process and the default which the plaintiff relies on.

However, the Applicants, possibly in their haste to file the application, have not shown that a proper search was conducted. Mr. Dowa in his affidavit of 13 March, 2001 at paragraph 7 says:

"A recent search conducted at the National Court Registry revealed that the Plaintiff/Cross-Defendant had not filed a Reply and Cross-Defence."

That is the only affidavit that deposes to a physical search of the Court file having been conducted. It does not say when the search was conducted and by whom.

In applications for default judgement, a physical search of the court file is very crucial in that it establishes default by the other party. The Affidavit of search must state when the court file was searched; the default and the particular rules relied on. As Injia, J stated in Kabil Worim and which I referred to in Philip Wikai v Bopo Kumbati and Anglo Coffee Pty Ltd, unreported judgement of 11 June, 2001,

"Proof of Default is established by a proper Affidavit of Search... the affidavit of search should set out the date on which the court file was searched and the discovery made as to the default by the Defendant in filing the defence within the time stipulated by the rules. The affidavit should also contain references to the particular rule relied upon and the details of the expiration of the time limit."

The National Court Rules (‘NCR’) stipulate that the conduct of proceedings on a cross-claim is the same as a Writ of Summons (O.8 r .44 of NCR) and that default judgment can be entered where a Defendant has defaulted in filing a Notice of Intention to Defend and Defence. (O.8 r .45 of NCR).

In this case proof of that default must be established by an affidavit of search containing the particulars referred to in the cases cited. As it is, I do not have such an affidavit.

The Court has a wide discretion to enter Default Judgement. As Injia, J stated in Kante Mininga v The State and 2 Others N1458 [1996] -

" O.12 r. 32 of the NCR gives the court a wide discretion to enter default judgement. Even when proof of due service of process on a defendant and proof of the default is established by the Plaintiff/Applicant, the court still has a discretion to refuse to enter default judgement..."

and I add here, subject to the peculiar circumstances of each case.

In this case, Mr Dowa’s Affidavit of 13 March 2001, does not disclose the default by the Respondent. 0.12 r. 34 of the NCR states:

"34. Proof of Service of Writ

Judgement should not be entered against a Defendant under this Division unless:

(a) an affidavit is filed by or on behalf of the Plaintiff proving due service of the Writ of Summons on the defendant; or

(b) the Plaintiff produces the Writ of Summons endorsed by the Defendants Solicitor with a statement that he accepts service of the writ on the Defendants behalf, and an affidavit is filed by or on behalf of the Plaintiff proving the default of the Defendant on which the Plaintiff relies. (my stress)

O.12 r. 34 gives me that discretion. In Kante Mininga’s case and relied on by Injia, J in Bola Kitipa v Vincent Uali and Three Others N1773, His Honour, categorised situations where default judgements could be entered. These were;

1. the effect of the default judgement would prejudice the rights of other co defendants; or
   
2. the pleadings are so vague or do not disclose a reasonable cause of action; or
   
3. the default judgement cannot be sustained in law.
   

I hold that the lack of an affidavit of search properly pleaded falls within the third category, which is that the Default Judgement cannot be sustained in law.

The Applicant has requested that the court strike out the Plaintiff’s Statement of Claim and enter judgment on his cross-claim for the Respondent failure to file a Defence. I will refuse that application based on the arguments above. I will also order that the Cross-Defendant file its Defence to the cross-claim within 21 days from date of judgement.

The Respondent/Plaintiff should pay the costs of the application as his delay in filing his Defence to the cross-claim has resulted in this application being made.
_______________________________________________________________________
Lawyer for the Plaintiff/Cross-Defendant/Respondent: Warner Shand Lawyers, Mt. Hagen
Lawyer for the Defendants/Cross-Claimant/Applicant: Paulus Dowa Lawyers, Mt Hagen