N5516
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 1225 OF 2012

BETWEEN:

HENRY JAMES TAMARUA
Plaintiff

AND:

NATIONAL BROADCASTING COMMISSION
Defendant

Waigani: Kariko, J
2013: 12th & 21st June

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Application for default judgement – Principles - Whether writ properly served 

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Application for leave to file defence out of time - Considerations 

Cases cited:

Urban Giru v Luke Muta (2005) N2877
Agnus Kunton v John Junias (2006) SC929
Fraser v Motor Vehicles Insurance (PNG) Trust (1992) N1098
Joe Tipaiza v James Yali (2006) N2971

Counsel:

Mr P H Pato, for the plaintiff
Mr C Kup-Ogut, for the defendant

RULING

21st June 2013

1.	KARIKO, J: Henry James Tamarua was an employee of the National Broadcasting Commission ("NBC") until his termination in 2012. The last position he held was Provincial Director, Radio Morobe on a three year contract commencing 19th March 2008. Mr Tamarua claims that the NBC breached his contract of employment when it wrongfully relieved or suspended him from duties for nearly two years thereby incurring him loss of entitlements and other damages.

2.	Two motions have been argued before me. The first by Mr Tamarua seeking default judgement and the other by NBC asking for leave to file its defence out of time. 

3.	The parties agreed for Mr Tamarua to move his application first and in its response the NBC could also argue its motion. 

The law on default judgement

4.	The preconditions for the entry of default judgement are properly summarised by Cannings J in Urban Giru v Luke Muta (2005) N2877. These requirements are:

(1)	The notice of motion shall be in the proper form with supporting affidavits.

(2)	These documents must have been properly served on the defendant.

(3)	The writ of summons has been properly served on the defendant (with the additional requirement that a copy of the writ is attached to the affidavit of service).

(4)	The defendant is in default, proved by evidence.

(5)	The defendant was forewarned of the intention to apply for default judgement (where a notice of intention to defend has been filed).

5.	Even if a plaintiff meets these requirements, the grant of default judgement remains a matter for the Court's discretion: Agnus Kunton v John Junias (2006) SC929.

Service of writ

6.	I am of the view that of the stated preconditions, service of the writ of summons emerges as the critical issue for my determination. The alleged default of failing to file a defence would be made out if the writ of summons is first found to have been properly served.

7.	The evidence from Mr Tamarua is that the writ was duly served when it was delivered to the front desk receptionist at NBC headquarters at 5 Mile, National Capital District, while the defendant submitted that service was not proper as the receptionist was not authorised to accept service on behalf of the NBC and that service should have been on the office of the Managing Director. 

8.	Counsel for Mr Tamarua argued that proper service meant personal service pursuant to the National Court Rules ("the Rules") and his client had met this requirement. The relevant Rules are found under Order 6—Service of Documents:

1. 	Mode of service. (9/1)

Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by these Rules or by order of the Court.

2. 	Originating process. (9/2)

(1) 	Subject to any Act, and to these Rules, originating process shall be served personally on each defendant.

3. Personal service: How effected. (9/3)

(1) ............

(2) Personal service of a document on a corporation may be effected by serving the document in accordance with Sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.

(3) Sub-rule (2) applies in addition to any provision for service on a corporation made by or under any Act.

9.	Neither the Broadcasting Corporation Act 1973 which establishes the NBC or any other legislation provides for service on the NBC. I therefore accept that O6 r3(2) is the relevant provision to consider. Is a receptionist an officer of the kind referred to in O6 r3(2) as submitted for the plaintiff? In my opinion, it is not. It is obvious from the list of officers set out in that Rule that the list refers to senior executives of a corporation. While a receptionist may be regarded as a secretary in the sense that he or she undertakes some secretarial duties, the term "secretary" in O6 r3(2) must necessarily refer to a corporate or company secretary.

10.	Was the receptionist authorised to accept service on behalf of NBC? In Fraser v Motor Vehicles Insurance (PNG) Trust (1992) N1098, Brown J confirmed that on application for default judgement personal service on a statutory corporation must be strictly proved. His Honour went on to find that the onus for such proof rested with the applicant and the evidence must show that the person served is one of the officers referred to in O6 r3(2) or a person authorised to accept service on behalf of the corporation. In that case, it was alleged that the person served was a person authorised by the Motor Vehicles Insurance (PNG) Trust to accept service. In respect of such service His Honour made the following remarks which I endorse:

It must be remembered that service must be strictly proved and the rules of evidence apply. The commonly accepted method of service is for the process server to re-count the conversation with the person personally served. 

He should introduce himself and recount the nature of his business, to serve the Trust with a Writ of Summons, before asking the person sought to be served, on the Trust's behalf, is, her position with the Trust and whether she is able to accept service on the Trust's behalf. Her authority should be produced.

All this should be recounted in the first person in the affidavit. On the evidence of the conversation recounted in the first person, the requirements of O6r3(2) may have been satisfied.

11.	In the present case, there is no evidence that the receptionist was authorised by the NBC to accept service. 

12.	I therefore find that the writ of summons was not properly served and it follows that default judgement must be refused. 
 
Leave to file defence out of time

13.	In Joe Tipaiza v James Yali (2006) N2971, Cannings J confirmed the considerations for deciding whether or not to grant leave to file a defence out of time, namely:

(1)	The length of the delay in filing the defence;

(2)	Reasonable explanation for the delay;

(3)	Whether the applicant has a good defence; and

(4)	If the interests of justice favours the grant of the leave sought.

14.	The evidence before me is that the copy of the Writ of Summons given to the receptionist was not forwarded to the Managing Director's office nor has it been located. When the Managing Director Mr Memafu Kapera became aware of the proceeding (through notice of Mr Tamarua's application for default judgement filed 13th March 2013), Mr Kapera then gave instructions to NBC's lawyers on 21st March 2013 to defend the case. A request was made to the plaintiff's lawyers on 4th April 2013 for a copy of the writ but by way of response on 5th April 2013, Nicholas Tame Lawyers simply referred Ninai Lawyers to the PLO or Principal Legal Officer for NBC. A request was then made to the Assistant Registrar National Court for a copy of the Writ which was subsequently provided on 10th April 2013. 

15.	By then, the default judgement application was pending in this Court. Under the belief that it had defaulted in filing its defence, the NBC filed its application on 26th April 2013 for leave to file its defence out of time. Of course, it had not defaulted as it was never properly served the writ of summons.

16.	I find that the NBC has presented a reasonable explanation why it has yet to file its defence. I note that it was able to obtain a copy of the writ of summons through its own efforts after Mr Kapera became aware of this proceeding. Based on the affidavit evidence, I also consider that the NBC has a defence on the merits, an arguable case that Mr Tamarua is not owed any lost entitlements from his suspension or otherwise. To my mind, the interest of justice requires that I grant the application by the NBC. 

Orders

17.	This Court orders as follows:

(1)	The plaintiff's application for default judgement is refused.

(2)	The defendant's application to file its defence out of time is granted.

(3)	The defendant shall file and serve its defence by 3rd July 2013.

(4)	Pleadings shall then follow in accordance with the National Court Rules. 

(5)	The defendant's costs of and in relation to both applications shall be paid by the plaintiff, to be taxed if not agreed.

(6)	The costs shall be paid before this matter proceeds to trial.

(7)	The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith. 

___________________________________________________
Nicholas Tame Lawyers: Lawyer for the Plaintiff
Ninai Lawyers: Lawyer for the Defendant