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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1656 OF 2001
BETWEEN
GREGORY TAVATUNE as the Customary Representative of the Estate of Julie Tavatune on his own behalf and on behalf of four children
Plaintiff
AND
DR. NOVETTE, CHRISTOPHER PASMAT, DANNY GRE AND ELIAS KAPAWARA OF VANIMO GENERAL HOSPITAL
First Defendants
AND
THE BOARD OF MANAGEMENT OF VANIMO GENERAL HOSPITAL
Second Defendants
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Davani, J
2010: 22nd July
2012: 13th March
PRACTICE AND PROCEDURE – dependency claim – action against the State – claim under the Wrongs (Miscellaneous Provisions) Act.
PRACTICE AND PROCEDURE – Claim to be filed within 3 years of date of death – claim filed after 3 years – claim statute-barred – default judgment taken out on statute-barred proceedings-default judgment deemed to be irregular - s 31 of Wrongs (Miscellaneous Provisions) Act.
Facts
The deceased was the Plaintiff's wife. She died after a surgical operation. The Plaintiff lodged a dependency claim, claiming damages arising from the deceased's death, who the Plaintiff alleged, died, because of the Defendants' negligence on the operating table.
The Writ of Summons and Statement of Claim was filed 7 months after the lapse of the 3 year limitation period provided in s 31 of the Wrongs (Miscellaneous) Provisions Act. Thereafter, default judgment was entered against all Defendants. The matter is before this Court for assessment of damages.
Issues
Reasoning
1. Yes, the matter is statute-barred because s 31 of the Wrong (Miscellaneous) Provisions Act is in mandatory terms, that any action must be commenced within 3 years after the deceased's death;
"31. LIMITATION OF ACTIONS UNDER PART IV.
Only one action under this Part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person".
2. No, the Court should not proceed to assessment of damages because the default judgment is irregular and must be set aside as of right because it was entered on a claim that was statute-barred.
3. Yes, the assessment of damages will be a futile exercise because default judgment, having been entered on a claim that was statute-barred, was entered in a vacuum.
Orders
Cases cited:
Papua New Guinea Cases
William Maki v. Michael Pundia (1993) PNGCR 337
Don Polye v. Jimson Papaki & Ors (2000) SC637
Papua New Guinea Banking Corporation vs. Jeff Tole (2002) SC694
Coecon Ltd (Receiver/Manager appointed) vs. National Fisheries Authority (2002) N2182
Paul Gigmai v. MVIL (2004) SC750
William Mel vs. Colman Pakalia and Others (2005) SC790
Philip Wala, Willy Soma, Ronald Kolip and 19 others whose names are listed in the schedule to this Writ v. UPNG (2011) unreported and unpublished WS 676 of 2007 dated 25th March, 2011
Paul Kari v. Henry Kakali & 2 Ors (2011) unreported and unpublished WS 870 of 2006 dated 8th April, 2011
Overseas Cases
Bolts & Nut Co. (Tipton) Ltd v. Rowlands Nicholls & Co. Ltd [1964] 2 QB 10 Building Guarantee & Discount Co. Ltd v. Dolejsi [1967] VicRp 94; [1967] V. R 764
Dyson v. Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410
Hubbuck & Sons Ltd v. Wilkinson Heywood & Clerk Ltd [1989] 1 QB 86
Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 KB 412 CA
Republic of Peru vs. Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch D 489
Counsel:
Mr N. Kubak, for the Plaintiff
Mr S. Koim, for all the Defendants
DECISION
13th March, 2012
1. DAVANI J: Before me for substantive hearing is a claim by the plaintiff for assessment of damages. The Plaintiff sues in his capacity as the customary personal representative of his late wife's estate.
Background
2. On the 14th November, 2011, the plaintiff filed these proceedings describing himself as the husband and customary representative of Julie Tavatune (the "deceased') and her estate.
3. The Writ of Summons and Statement of Claim (the "writ") pleads therein the circumstances leading to the deceased's death. By way of summary, on 26th March, 1998, the deceased was a patient of the Vanimo General Hospital whilst 29 weeks pregnant. On 3rd April, 1999, the first defendants, who were medical officers employed by the Department of Health and Vanimo General Hospital, surgically operated upon the deceased. However, after the operation, the deceased "began experiencing difficulties" (see paragraph 12 of the Statement of Claim). "She was operated upon again" (see paragraph 12 of the Statement of Claim). On 12th April 1998, the deceased died.
4. The plaintiff alleges that it was as a result of the first defendant's negligence, that the deceased died.
Default Judgment
5. On 2nd June, 2003, the National Court entered default Judgment in these terms:
"1. Default judgment is entered against the second defendant for default in filing Notice of Intention to Defend and Defence.
2. The matter is listed on the call over list for assessment of damages.
3. Interest at the rate of 8% per annum."
(my emphasis)
6. On 26th May, 2003, the National Court entered a further default judgment in these terms;
"1. Default judgment is entered against the first and third defendant for default in filing Notice of Intention to Defend and Defence.
2. The matter be listed on the call over list for assessment of damages.
3. Interest at the rate of 8% per annum".
(my emphasis)
7. A motion was filed by the office of the Solicitor-General for and on behalf of the defendants, to set aside these default judgments but was dismissed for want of prosecution on 11th June, 2008.
The Plaintiff's Claim
8. As this matter is before me for assessment of damages, the plaintiff must prove her claim as is the requirement at law. I discuss this further below.
9. It is also a requirement at law that the plaintiff cannot claim what is not pleaded. This, I discuss below.
10. To properly ascertain what the plaintiff is entitled to, I will deal firstly with the claims pleaded in the Statement of Claim.
i. Writ of Summons and Statement of Claim:
11. At paragraph 7 of the writ, the plaintiff pleads that the action is brought pursuant to parts IV and V of the Wrongs (Miscellaneous) Provisions Act chapter No. 297 ("Wrongs Act").
12. The first peripheral or preliminary question I ask myself, is whether the claim was filed within 3 years from the date of the deceased's death, as provided in s 31 of the Wrongs Act which reads;
"31. Limitation of actions under part IV
Only one action under this part lies for and in respect of the same subject matter of complaint, and every such action must be commenced within 3 years after the death of the deceased person" (my emphasis)
13. In this case, the writ was filed in 14th November, 2001. The deceased died on 12th April 1998, as pleaded in paragraph 13 of the statement of claim. The 3 years from the date of death, when an action should have been filed, lapsed on 12th April 2001. (my emphasis)
14. Was the writ filed within the 3 year limitation period?
15. According to the Court file and the date of filing registered on the Writ of Summons and Statement of Claim, the writ was filed on 14th November, 2001 by the firm Kubak Lawyers. This was done some 7 months after the lapse of the 3 years limitation period which occurred on 12th April, 2001. Clearly, the matter is statute-barred and should not proceed any further. (my emphasis)
16. What about the fact that default judgment has already been entered? In other words, can this Court revisit the aspect of liability?
17. The trial judges role when hearing a claim for assessment of damages after entry of default judgment was addressed by the Supreme Court in William Mel v Colman Pakalia and Others (2005) SC790 where Los. J, Jalina. J and Cannings. J endorsed the principles set by Kandakasi. J in Coecon Ltd (Reciever/Manager) appointed) vs. National Fisheries Authority (2002) N2182 and by the Supreme Court in Papua New Guinea Banking Corporation vs. Jeff Tole (2002) SC694 Amet CJ, Sheehan. J and Kandakasi. J. They held that the trial judge's role is:
18. In accordance with the principles set in William Mel (supra), I will have to revisit the aspect of liability because on the face of it, the claim is statute-barred.
19. I discuss firstly the first principle and deal with it as an issue.
i. Are the facts and the cause of action pleaded with sufficient clarity?
20. Although the proceedings are described as a dependency claim, the plaintiff sues as ".....the husband and customary representative of the dependants of the late Julie Tavatune ("the deceased") and her estate." (Paragraph 1 of statement of claim). The questions that then arise in my mind are:
- Whether the plaintiff is suing as the administrator of the deceased's estate?;
- Or, whether it is a claim by a dependant husband under the Wrongs Act?
21. On further reading of the statement of claim, these questions are answered by paragraph 7 of the statement of claim where the plaintiff pleads:
"the plaintiff brings this action pursuant of parts IV and V of the Wrongs (Miscellaneous Provisions) Act chapter No. 297 on behalf of the dependants of the deceased as well as for himself and for the benefit of the estate of the deceased".
22. So, it is a claim by the dependant husband under the Wrongs Act.
23. Sections 25 and 26 of the Wrongs Act provide for who can bring an action, either the executor or administrator of the deceased persons estate, (s.26 (1) of the Wrongs Act) or by a dependant/s who were dependent on the deceased by custom (s. 26 (2) of the Wrongs Act).
24. Section 27 (1) (2) of the Wrongs Act dispels any doubts in relation to the plaintiffs standing where it states that if the deceased does not have an executor and/or administrator, then the action may be brought "by any person for whose benefit the action would have been if it had been brought by the executor or administrator" (s 27 (1) of the Wrongs Act).
25. So the plaintiff has pleaded with sufficient clarity, the manner in which he comes to Court.
ii. The claim was filed after the expiration of the 3 year statutory limitation period. Will the assessment of damages became a futile exercise?
26. In my view, yes. It will be a futile exercise because s.31 of the Wrong Act makes it mandatory that "........every such action must be commenced within 3 years after the death of a deceased person". (my emphasis).
27. As it is, the default judgment is irregular and must be set aside. A defendant's right to have an irregular judgment set aside is absolute. He has the right to have an irregular judgment set aside ex debito justitiae. This situation arose in Building Guarantee & Discount Co. Ltd v. Dolejsi [1967] VicRp 94; [1967] V. R 764, where a judgment in default of appearance was entered for an amount in excess of what was owing by the Defendant. The Defendant applied for it to be set aside as irregular, and in response the Plaintiff sought an amendment to reduce it to the correct amount. As a matter of discretion, the Court refused the Plaintiff's application and acceded to the Defendant's request because the Plaintiff's application to amend was an abuse of process, considering the circumstances. What weighed as of some importance in exercising the discretion was the conduct of the Plaintiff in applying for the amendment only after the defendant had applied for relief.
28. The right of a Defendant to have a default judgment set aside exists wherever the judgment is irregular.
29. But, should the Defendant formerly make application to set aside the order? Or can the Court exercise its initiative in setting aside the irregular judgment?
30. The common law is that an irregular judgment must be corrected, it is not for the Defendant to take steps to render the Plaintiff's error, regular (see Bolts & Nut Co. (Tipton) Ltd v. Rowlands Nicholls & Co. Ltd [1964] 2 QB 10).
31. The law in Papua New Guinea is also that a Court must control the proceedings that come before it. And if it means that a Court must exercise its judicial discretion to set aside an order as being irregular and to dismiss proceedings for not disclosing a cause of action as it is statute-barred, then it must do so. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Supreme Court said that;
"... this Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly, any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."
32. So a Court must ensure the integrity of its process. If a Plaintiff is pursuing a claim that is clearly statute-barred, then those proceedings must go.
33. As is akin to applications for summary judgment, it is only in plain and obvious case, where the plaintiff clearly does not have an arguable case that the statement of claim is struck out (see Dyson v. Attorney-General [1911] 1KB 410; Hubbuck & Sons Ltd v. Wilkinson Heywood & Clerk Ltd [1989] 1 QB 86 at 90 – 91).
34. And in this case because there is no cause of action because the matter is statute-barred, damages cannot be assessed in a vacuum. (See Paul Gigmai v. MVIL (2004) SC750).
35. I have also, in other cases, at the assessment of damages stage, dismissed claims as being statute-barred, even though default judgment had already been entered (see Paul Kari v. Henry Kakali & 2 Ors (2011) unreported and unpublished WS 870 of 2006 dated 8th April, 2011; Philip Wala, Willy Soma, Ronald Kolip and 19 others whose names are listed in the schedule to this Writ v. UPNG (2011) unreported and unpublished WS 676 of 2007 dated 25th March, 2011). I did that knowing full well that the Court has an inherent jurisdiction to control proceedings before it and of course, is one not to be exercised too readily, particularly if the exercise effectively puts an end to the action. (see William Maki v. Michael Pundia [1993] PNGLR 337). In many cases, the Courts have opted to amend pleadings or stay proceedings pending action by the lawyers to rectify the ambiguity (see also Republic of Peru v. Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch D 489 per Chitty. J). But that is not the case here. No amount of amendment can cure this serious statutory limitation.
36. Of course, an originating process is the single, first and most important document that enters the Court process. A Plaintiff or his lawyer must ensure that the document is without flaws. And a Court has that wide discretion to screen and weed out claims, even without there being a formal application before it. As Injia J. said in Karl Paul v. Aruai Kispe and 2 ors (2001) N2085 at pg 7;
"The Court has wide powers to control the conduct of proceedings before it, subject to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court to scrutinize the form and contents of documents before it. State v. Alphonse Woihunangu N966 (1991).
There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party: see Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995). It is for this reasons that I raised the issue of competency on my initiative".
(my emphasis)
37. What about the aspect of delay, that it has been 7 years since the entry of judgment to the hearing on assessment of damages?
38. Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 K.B 412 C.A stand for the proposition that the Defendant should not be penalized for the delay because it is for the Plaintiff to put his Writ right. So in this case, the delay has no relevance because the Plaintiff is not properly before this Court. It was incumbent upon the plaintiff's lawyer to advise his client before the writ was filed, that the matter was statute-barred and that Court proceedings will not be filed. But the Plaintiff's lawyer filed anyway, and even proceeded to obtain default judgment on the irregular proceedings.
39. When proceedings are statute-barred, then there is no cause of action on foot. This Court should not even venture into the assessment stage because if there is no cause of action on foot, there is nothing to assess. The two default judgments are deemed to have been irregularly obtained.
Conclusion
40. Section 31 of the Wrongs Act is the provision that the Judge entering default judgment, should have consulted. The entering of default judgment is not just a matter of placing ticks and crosses in boxes but is one where the Court must ensure that the basic fundamentals or prerequisites to the filing and service of a Writ of Summons and Statement of Claim is fully satisfied, before default judgment is entered. These are:
- Section 5 Notice has been properly issued (if the State is a defendant);
- All the parties to the action have been properly named in the Writ;
- The action is not statute-barred;
- There is a cause of action on which to enter default judgment;
- All the requirements for a default judgment have been met e.g. the giving of the notice, recent search of the Court file, proper service of the Writ of Summons and Statement of Claim upon the named defendants, etc.
41. The Court should only enter default judgment after these requirements have been satisfied.
Costs
42. As to costs, the defendants did not file a Defence, allowing the entry of default judgment. However, the Plaintiff's lawyers filed these proceedings even though they were clearly out of time. I do not know if both the Plaintiff's lawyer and the Defendant's lawyers discussed this serious deficiency but the proceedings have been allowed to come this far.
43. If the Defendants are to get any costs, it should only be the costs of the appearance before me on 22nd July, 2010, for the assessment. However, even at the appearance, Defendant's counsel did not raise s 31 of the Wrongs Act.
44. Therefore, in view of the above, it is only fair and proper that each party pay their own costs of the proceedings.
Formal Orders
45. These are the Court's formal orders:
____________________________________
Kubak Lawyers: Lawyers for the Plaintiffs
Solicitor-General's Office: Lawyers for the Defendants
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