N2429

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS.1675 of 2002

BETWEEN:

ROBIN KIPANE
Plaintiff

AND:

FELIX ANTON
First Defendant

AND:

PNG WATERBOARD
Second Defendant

LAE: KIRRIWOM, J
2003: 16 May and 14 July

PRACTICE AND PROCEDURE – Default judgment – Application for – Defence filed out of time – Leave to file defence out of time compulsory and mandatory – No leave sought – Defence filed out of time not defended – Defence filed in the circumstances is the same as no defence filed – National Court Rules, Order 1 r.15, Order 7 rr. 2 and 6(2) and Order 12 r. 25(b).

Cases cited:
Thomas Koral v Alex Kavie and Petrus Alex [1999] Unreported and Unnumbered Judgment – WS286/98
Luke Tai v Australia and New Zealand Banking Group Ltd [2000] Unreported National Court Judgment No. N1979

Counsel:
J. Kais for the Plaintiff/Applicant

14th July 2003

KIRRIWOM, J: This is an application for default judgment pursuant to O.12 rr. 25 and 27 of the National Court Rules. The basis of this application is that both the First and Second defendants have not filed any notice of intention to defend or defence. While the application looked pretty straightforward as presented by the plaintiff, it was not as plain as it met the eye as the Second Defendant had belatedly filed an intention to defend and subsequently a defence was filed. And whilst no leave was first obtained prior to the late lodgement, I formed the view that the case needed a closer examination before a decision is made on the application. This is how the matter had fallen behind in the list for judgements to be delivered as and when it ought to have when other events intervened.

Chronology

•	Writ of summons filed on 19 December 2002
•	On 13th January 2003 service of the writ was effected on both the First and Second Defendants in the offices of the Second Defendant in Konebada Bldg 1st Street Lae.
•	On 26th February 2003 another service of the writ was effected on the First Defendant in the offices of the Second defendant described above.
•	On 24th April 2003 Second Defendant filed a notice of intention to defend together with its Statement of Defence.
•	On 25th April 2003 notice of intention to defend and defence was served on lawyers for the plaintiff (see affidavit of Eluid Mayarom sworn 25th April 2003).
•	On 29 April 2003 plaintiff filed notice of motion seeking default judgment against both defendant supported by affidavit of David Poka sworn 11th April 2003 and filed 29th April 2003.

The First Defendant has not filed notice of intention to defend or defence at all. It is clearly in default and judgment can be entered in default as there is evidence of service of the writ as well as this motion.

The Second Defendant did give notice and filed its defence but it was 14 days outside of the time required to give notice. While notice is properly given albeit outside the prescribed time under the Rules, no leave was obtained prior to the defence being filed. Mr Kais argues that the defence filed must not be accepted as no leave was sought and granted prior to its filing. On strict construction of the Rules following service of the writ of summons on the Second Defendant it should have filed its defence on 10th April 2003, which is after allowing the 14 days, following giving of notice of intention to defend required under O.8 r.4 (1)(a) of the Rules. 

The need to obtain leave before filing a defence out of time is mandatory according to Thomas Koral v Alex Kavie and Petrus Alex [1999] Unreported and Unnumbered Judgment – WS286/98 which was adopted and relied upon by Kapi DCJ in Luke Tai v Australia and New Zealand Banking Group Ltd [2000] Unreported National Court Judgment No. N1979.

The law is clear on the requirement for leave. Except for the First Defendant, the Second Defendant had given notice of its intention to defend the proceeding regardless of the fact that the time allowed by the Rules had lapsed because under Order 7 r. 2 a defendant must give notice of intention to defend before it can file a defence. However, the crucial point to bear in mind is that if that notice is given after the defendant’s time allowed under the Rules to file a defence has run out, then leave must first be obtained before defence is filed according to the requirement of O.7 r.6 which provides in particular paragraph (2):

"6.	Late notice. (11/6)

(1)	A defendant may give a notice of intention to defend at any time without 	leave.

(2)	Where a defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time."

Under Order 1 r.15 the court has power to extend time either on its own volition or on application. In other words it is within the discretion of the court to extend time where it has expired. And Order 12 r. 25(b) says that ‘a defendant shall be in default….where he is required to file a defence and the time for him to file defence has expired and had not filed his defence’. While the literal reading of this Rule appears to allow late filing of defence, reading the Rules as a whole, the requirement under O. 7 r. 2 may go begging and this was an overriding consideration in Luke Tai v Australia and New Zealand Banking Group (PNG) Ltd (supra), and I endorse the view expressed by Kapi, DCJ. There is no question in my mind that the combined operation and effect of O.1 r.15, O.7 rr. 2 and 6(2) and O.12 r.25 (b) is that the defendant must seek and be given leave to file his defence. He cannot get away from his default or failure by discreetly leaving documents with the court registry and hope to have met the requirements of the Rules. It is unfortunate that the registry personnel are not equipped with the necessary skills and training to be able to make on the spot decision on what documents are to be accepted for filing and which ought to be rejected as defective. 

At the hearing of this application for default judgment neither the First Defendant nor the Second Defendant appeared to oppose this motion although both were served with the motion. The Second Defendant is on the record defending this action through its in-house counsel and I expect that he would be familiar with the Rules on matters of procedure of this Court. It is my view that lawyers filing documents in contradiction to and of the specific dictates of the law or the Rules and expect the court to deal with the rest as it best sees fit on such defective pleading in the face of strong opposition without appearing to defend their actions are doing great disservice to their clients. 

I am satisfied that the Second Defendant is also in default of filing its defence within the required stipulated time although a defence was belatedly filed without leave of this court. Judgment in default of defence is entered on behalf of the Plaintiff against both the First and Second Defendants jointly and severally.

Orders of the court are:

1.	Judgment is entered for the Plaintiff against the First and Second Defendants jointly and severally in the sum of K39, 334.71 plus interest at the rate of 8% per annum until the date the said sum is paid in full.
2.	The Defendants pay the Plaintiff’s cost of K234.00.
3.	The time of entry of this order is abridged to the time of settlement by the Assistant Registrar, which shall take place forthwith.

Lawyers for the Plaintiff/Applicant: Pryke & Bray, Lawyers