N6971
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 143 OF 2014

BETWEEN
FIRST CONSTABLE THOMAS ANDALE, SENIOR CONSTABLE DAVID MEREN, CONSTABLE CHRIS AKOP AND CONSTABLE BENNY PHILIP
Plaintiffs

AND
CORPORAL MICHAEL SUVIRO (811363) OF PAPUA NEW GUINEA DEFENCE FORCE – TENGO BASED CONTINGENT COMMANDER
First Defendant

AND
LIEUTENANT CHRIS NAYABA (811714) OF PAPUA NEW GUINEA DEFENCE FORCE – AWATANGI BASED CONTINGENT COMMANDER
Second Defendant

AND
LIEUTENANT ALPHONSE BIGE (812009) OF PAPUA NEW GUINEA DEFENCE FORCE – NIPA BASED CONTINGENT COMMANDER
Third Defendant

AND
CAPTAIN NOEL HAKOPES (812636 OF PAPUA NEW GUINEA DEFENCE FORCE – GROUP CONTINGENT COMMANDER
Fourth Defendant

AND
BRIGADIER GENERAL GILBERT TOROPO – GENERAL COMMANDER OF PAPUA NEW GUINEA DEFENCE FORCE
Fifth Defendant

AND
SERGEANT AQUILA OF ROYAL PAPUA NEW GUINEA CONSTABULARY – POLICE MOBILE SQUAD 18 COMMANDER
Sixth Defendant

AND
INSPECTOR KALG MARAGIL OF ROYAL PAPUA NEW GUINEA CONSTABULARY – GROUP POLICE CONTINGENT COMMANDER
Seventh Defendant

AND
TOM KULUNGA – POLICE COMMISSIONER - ROYAL PAPUA NEW GUINEA CONSTABULARY
Eighth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Waigani: Polume-Kiele J
2017: 21 March & 6 October 

PRACTICE AND PROCEDURE -  Application for default judgment - Order 12, Rules 25, 26 & 27 and  Order 12 Rules 28 and 32 - National Court Rules - entry of default judgment - discretionary matter for the court – relevant considerations.

PRACTICE & PROCEDURE - Service of Writ – Proof of – Effect of - Order 12, Rule 34 – National Court Rules –No Judgment 

PRACTICE & PROCEDURE - Pleadings - Pleading of cause of action - Negligence –Failure to plead elements constituting cause of action - Pleading of material facts on vicarious liability - Nexus or connection between employer and servant - Lack of - Effect of - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1(1) & (4) - No reasonable cause of action exist against the Ninth Defendant; the State.

Case cited:
Papua New Guinea Cases

Abel Tomba v The Independent State of Papua New Guinea (1997) SC 518
Agnes Kunton v John Junias (2006) SC929
Bank South Pacific Ltd v Robert Tingke (2012) N4901
Chief Collector of Taxes v Dickson Panel Works Pty Ltd [1988] PNGLR 186
David Lambu v Paul Torato (2008) SC953
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Giru v Muta (2005) N2877
Jacob Simbuaken v Neville Egari (2009) N3824
Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority (2001) N2085
Kunkene v Rangsu & The state (1999) N1917
Kante Mininga v Independent State of Papua New Guinea, Dr Ponifasio and Doctor Scotty Maclfish (1996) N1458
Kuk Kuli v The State (2004) N2592
Kuk v Yanga (2005) N2764
Laki v Alaluku (2000) N2001
Mapmakers Pty Ltd v BHP Ltd [1987] PNGLR 78
Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492
Motor Vehicle Insurance Ltd v Nominees Niugini Ltd (2015) SC 1435
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Pamenda Ipi Pangu v Mak Korr (2015) N6069
Paul Marinda v The Independent State of Papua New Guinea (1991) N1026
Tima v Korohan (2006) N3045
The Independent State of Papua New Guinea v David Wari Kofewei and Ors [1987] PNGLR 5)

Overseas cases cited:

Caparo Industries PLC -v- Dickman [1990] 2 AC 605
Electrical Generating Board [1981] 3 All ER 826
Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53
Read v. Brown (1988) 22 Q.B.D 128
R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763
R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central 
Read v. Brown (1988) 22 Q.B.D 128)
Sear v. Lawson (1881) 16 Ch. D. 121
Sear v. Lawson (1881) 16 Ch. D. 121
Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39
Sutradhu -v- Natural Environment Research Council [2006] 4 All ER 490

Counsel:

Mr Ayako, for the Plaintiffs
Mr Maniambu, for the Defendants

Interlocutory ruling
6th October, 2017

1.	POLUME-KIELE J: This is my ruling on a motion moved by the Plaintiffs on the 21st of March 2017 seeking orders pursuant to Order 12 Rule 25 of the National Court Rules that default judgment be entered against the Eighth and Ninth Defendants plus costs. 

Background facts

2.	The plaintiffs alleged that they were assaulted, injured, and detained unlawfully during an illegal road block set up on the night of the 18th of October 2013, at Tari, Southern Highlands Province (more specifically at the Tengo Gap Base Camp); by the defendants. The plaintiffs say that they were subjected to inhuman treatment contrary to their basic constitutional rights. 

3.	All Defendants failed to file a Notice of Intention to defend and Defence to the Claim within the requisite time stipulated under s 9 (a) (i) of the Claims By and Against the State Act 1996 and or Order 8, Rules 4(b) whichever is applicable to each of them severally and individually.

4.	Default judgment had already been entered against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants on the 7th of July 2015. 

5.	The application before this Court is for entry of default judgment against the Eighth and Ninth Defendants only.

Plaintiffs’ submissions
	
6.	Mr Ayako of counsel for the Plaintiffs submitted that the Eighth and Ninth Defendants have failed to file a Defence. Further, they also have not sought leave to file a defence out of time. The plaintiffs seek orders in terms of the reliefs sought in their notice of motion filed on the 9th of November 2016 and they rely on several affidavits in support of their application.

Plaintiffs’ evidence in support of application

7.	The documents relied upon to support their application are:

(i)	The Notice of Motion filed on the 9th of November 2016 and served on one, Margaret Jakis of the Office of the Solicitor General (Document No. 36) as deposed to in his affidavit sworn on the 11th of November 2016 and filed on the same date;

(ii)	Affidavit of First Constable Thomas Andale sworn on the 8th of November 2016 and filed on the 9th of November 2016 deposes to the service of the Notice of Motion and supporting Affidavit on the Office of the Solicitor General on the 9th of November 2016;

(iii)	Affidavit of Search of Tabe Jugari sworn on 10th November 2016 and filed on 10th November 2016 December deposing to the facts that the Eighth and Ninth Defendants had not filed any documents in regard to defending these proceedings nor filed a Defence to the Claim.

Defendants’ submission

8.	Mr. Maniambu for the Ninth Defendant submitted that the Plaintiffs’ application for default judgment is in compliance with the principles established in the case of Giru v Muta (2005) N2877. 

9.	Mr Maniambu submitted that the plaintiffs are presumed to have met all these requirements. In any event, the application is basically the same as similar application has been moved and default judgment entered for the plaintiffs already against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants on the 7th of July 2015. He submits further that this application is in regard to the Eighth and Ninth Defendants only; the remaining named Defendants to the proceedings.

Relevant law

10.	The application is moved pursuant to Order 12 Rule 25 of the National Court Rules. Order 12 Rule 25 of the National Court Rules states:

“(1)	A Defendant shall be in default for the purposes of this division:
(a)	where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(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 Order 8  Rule 24 to verify his defence and the time for him to verify his defence in accordance with that rule (has expired but he has not verified his defence”.

11.	Other relevant applicable rules for default procedures includes:

(i)	Order 12 Rules 26, 27 and 28 of the National Court Rules provides for entry default judgment procedures. In this case, Order 12 Rule 28 of the National Court Rules states as follows:

“Where the plaintiff’s claim for relief against the Defendant in default is for unliquidated damages only, the plaintiff may enter judgment against the defendant for damages to be assessed and for costs”.

(ii)	Order 12 Rule 32 of the National Court Rules states:

“(1) Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against that defendant as the plaintiff appears to be entitled to on his writ of summons

(2) Notwithstanding Sub-rule (1), the Court shall not, under that Sub-rule direct entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30 (2) and (4)”

(iii)	Order 12, Rule 34 – Proof of Service of writ-

Judgment shall not be entered against the 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 or notice of the writ on the defendant; or

(b)	the plaintiff produces the writ of summons endorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf and an affidavit is filed by or on behalf of the plaintiff proving the default of the defendant on which the plaintiff relies.

(iv)	Order 4, Rule 49(19) (3) – of the National Court Rules - Default Judgment Procedure

(a)	Against individuals

(i)	An applicant for Default Judgment shall file the following documents:

(1)	Notice of Motion;
(2)	An affidavit of Service;

(3)	An affidavit of Search (of the Court file) conducted just before filing the motion;

(4)	An affidavit in support (to also attach copy of letter to the other party forewarning of the application, if a Notice of Intention to Defend has been filed);

(5)	A draft order for Default Judgment
(ii)….
(iii)…

(iv)  The affidavit of service must strictly comply with Order 12 Rule 34 of the National Court Rules, that is:
•	the affidavit must prove due service of the writ, i.e. it must depose to date and time of service and on whom the writ was served;
•	a copy of the writ must be attached to the affidavit of service.

(b)	Against a corporate entity including the State

(i)	Motions on other statutory corporation and bodies must be effected in accordance with the requirements of the relevant statutory provision, e.g. s 431 (1) (a) to (f) (2) of the Companies Act;

(ii)	In order to assist the court, Counsel moving the motion must tender to the court copy of the relevant provision governing institution and service of court process against these entities.

(v)	Order 4 Rule 44 – Affidavits (service of the notice of motion for default judgment and supporting affidavits)
(1)	Where a notice of motion is founded on facts or on facts and documents, unless the court otherwise orders, an affidavit setting forth those facts and having annexed to it those documents (if any) shall be filed with the notice of motion, and a copy of the affidavits shall be served on the parties sought to be affected by the motion with the notice of motion.

(2)	A respondent may, before the date appointed for the hearing or, by leave of the court within such further time as may be fixed by the Court, file an answering affidavit and shall on the same day serve a copy of it on the applicant.

(vi) 	Order 6 Rules 2 of the National Court Rules -
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.

(2)	The copy for service shall be signed and sealed as specified in Order 4 Rule 12.

(3)	Where a defendant to any originating process serves a notice of intention to defend under Order 7, the originating process shall be taken to have been served on him personally on the date on which that notice is filed or on such earlier date as may be proved.

(vii) 	Order 8 Rule 8 – Facts, not evidence (15/7)
(1)	 A pleading of a party shall contain only a statement in a summary form of the material facts on which he relies, but, subject to these Rules, not the evidence by which those facts are to be proved.

(2)	Sub-rule (1) has effect subject to this Division and to Order 4 Division 2 (originating process) and to Division 2 (particulars).

(viii) 	Claims By and Against the State Act 1996; s 7, 13

Relevant Issue
	
12.	The issue before this court is whether default judgment should be entered against the Eighth and Ninth Defendant for failure to file a Defence within the requisite time stipulated under s 9 (a) (i) of the Claims By and Against the State Act 1996 and or Order 8 Rule 4 (b)? 

The application of the law

13.	In the present case, I am asked to make a ruling on judgment by default against the Eighth and Ninth Defendants. 

14.	In an application for default judgment, the Court first must be satisfied as to the formal requirements for entry of default judgment and in such an application; the evidence that a plaintiff applying for default judgment has to provide is evidence, by affidavit: (Motor Vehicles Insurance Ltd v Nominees Niugini Ltd (2015) SC1435) confirming:

(i)	service of the writ  (Order 12, Rule 34(a))  and proof of service of writ  under Order 12 Rule 34 (b)) of the National Court Rules;

(ii)	a recent search of the Court file (Order 4, Rule 49(19)(3)(a) (i)(3)) of the Rules on procedure relating to default judgment;

(iii)	issuance of a forewarning  letter, if necessary (Order 4, Rule 49(a)(i)(4)) of the National Court Rules on procedure on default judgment;

(iv)	service of the notice of motion for default judgment and supporting affidavits (Order 4, Rule 44)  of the National Court Rules and 

(v)	the defendant's default (Order 12, Rule 34) of the National Court Rules on proof of service of writ on the defendant.

15.	Furthermore, in the exercise of determining an application for default judgment; a number of checklists as established in the cases of Urban Giru v Luke Muta (supra) and recently Bank South Pacific Ltd v Robert Tingke (2012) N4901 must be shown to be satisfied; these being that:

(1)	the notice of motion for default must be in the proper form and supported by affidavit as required under Division 4.5 (motions), National Court Rules, more particularly the provisions of Order 4 Rules 40 which provides for the contents of motion and affidavits under Rules 44;

(2)	Service of notice of motion and affidavits - the notice of motion and the affidavit(s) in support and all other documents 

(a)	plaintiff is relying on, must be served on the defendant three days before the motion is heard, and proof of service provided by an affidavit of service under Order 4, Rules 38 of the National Court Rules specifying that such notice has been given (notice necessary), indicating the time of such service Rule 42 (time for service of notice), and the person upon whom service was served (43 (service) and that such details must be deposed to in an affidavit by the person who served the documents under Rule 44 (affidavits)) OR

(b)	In the case where the defendant has expressly or by implication waived compliance with those service requirements, e.g. is the defendant represented in court and ready and willing to argue the motion?

(3)	There must be Default: 

(a)	Firstly, a defendant has not filed a Notice of Intention to Defend (or it was filed late).  Under the Rules, a defendant has the normal time limit of 30 day for giving a notice of intention to defend after service of the writ: National Court Rules, Order 12, Rule 25 (a) (default); Order 4, Rule 9 (notice of intention to defend); Order 4, Rule 11(1) (b) (i) (time for giving notice of intention to defend).) OR

(b)	Secondly, a defence has NOT been filed or been filed late? (The normal time limit for filing a defence is within 44 days after service of the writ: National Court Rules, Order 12, Rule 25(b) (default); Order 8, Rules 4(a) (defence), 23(1) (close of pleadings); Order 4, Rule 11(b)(i) (time for giving notice of intention to defend).) OR

(c)	If the defendant is required to verify its defence, has the defence not been verified or has it been verified late? (The normal time limit for verifying a defence is the same as the time limit for filing the defence: National Court Rules, Order 12, Rule 25(c) (default); Order 8, Rule 24 (defence: verification).)

It must be noted here that the time for filing a defence may be extended by order of the court or by consent without an order of the court (National Court Rules, Order 1, Rule 15 (extension and abridgment)).

(4)	Warning

In the case, where a defendant has given notice of intention to defend, the requirements for a forewarning as stipulated in the Practice Direction No 1 of 1987 must be given. (Mapmakers Pty Ltd v BHP Co Pty Ltd[1987] PNGLR 78, National Court, Kidu CJ; Chief Collector of Taxes v Dickson Panel Works Pty Ltd[1988] PNGLR 186, requires that prior to moving an application for default judgment, a plaintiff must give 7 days’ notice of such intention to the defendant.

(5)	Proof of service of writ 

The plaintiff must file an affidavit proving due service of the writ of summons or notice of the writ on the defendant under Order 12 Rule 34 (a) of the National Court (proof of service of writ)) and produce a copy of the writ that has been endorsed by the defendant’s lawyer with a statement that the lawyer accepts service of the writ on the defendant’s behalf? (National Court Rules, Rule 34(b) (proof of service of writ).)

(6)	Proof of default

The plaintiff has filed an affidavit proving the default upon which the plaintiff relies under Order 12, Rule 34(b) (proof of service of writ) of the National Court Rules.

16.	Furthermore, in a proceeding where the State is a party, the normal procedures relating to the filing of a Notice of Intention to Defend under Order 4, Rule 9 (notice of intention to defend) and Order 4, Rule 11(1) (b) (i) (time for giving notice of intention to defend) applies. However, in terms of the procedures relating to the filing of a Defence, the State in this instance is specifically covered under s 9 of the Claims By and Against the State Act 1996. Section 9 states:

“Section 9 - FILING OF DEFENCE BY THIS STATE

Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint (as the case may be) shall be–
(a)	in a claim commenced by writ in the National Court–

(i)	where the statement of claim is endorsed on the writ–before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or

(ii)	where the statement of claim is not endorsed on the writ–before the expiry of 60 days from the date of service of the statement of claim; or

(b)	where a cross-claim is made against the State–before the expiry of 30 days from the date of service of the cross-claim; or

(c)	in an application under Section 57 of the Constitution–before the expiry of 90 days from the date of service of the application; or

(d)	in a claim made in the District Court–before the expiry of 90 days from the date of service of the summons,
or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows”. 

17.	Order 8, Rule 8 of the National Court Rules, requires that a statement of claim contain only a statement in summary form of the material facts relied on, not the evidence by which those facts are to be proved.

18.	In that regard, I will now deal firstly with the application against the Eighth Defendant. The allegations raised against the Eighth Defendant are that he failed to file a Notice of Intention to Defend and Defence. 

19.	Since the application is before the court, there is a presumption that the Plaintiffs have satisfied all the necessary requirements set out under Order 12 Rule 49 (19) (3) (a) & (b); Order 12 Rule 34; Order 4 Rule 44 and Order 6 Rule 2 of the Rules to apply for default judgment and the relevant applicable law relating to an application for default judgment. 

20.	In order to determine the application, I am obliged to consider the issue of whether the plaintiff has complied with all the requirements set out under Order 12 Rules 34; Order 12 Rule 49 (19) (3) (a) & (b); Order 4 Rule 44 of the National Court Rules on the Eighth and Ninth Defendants and to be satisfied the checklists established in Giru v Muta (supra) and BSP v Tingke (supra) have been complied with.

21.	 I now list these checklists against the current application:

(i)	The first checklist is that the application must be moved by way of a notice of motion and in the proper form supported by an affidavit. I find that this requirement is met as the application is by way of notice of motion and in the proper form;

(ii)	The Motion is supported by an affidavit of First Constable Thomas Andale sworn on the 8th of November 2016 and filed on the 9th of November 2016 (Document No.37). 

On that note, the first checklist is ticked. 

I now turn to the issue of the second checklist, proof of service of the Amended Writ of Summons. To determine proof of service, I again refer to the contents of the affidavit of Detective Constable Danny Tai Labbe of National Fraud and Anti-Corruption Directorate, Konedobu, sworn on the 22nd of April 2014 and filed on the 25th of April 2014 (Document No.4); he deposes that service were effected on the following:

(i)	The Ninth Defendant, service were effected on one, Carmeline Tauwaole, Executive Assistant to the Solicitor General on the 7th of March 2014 at 11.49 a.m.

(ii)	The Fifth Defendant, service was effected on Lt Colonel Kevin Kassman, Director Legal; on the 11th of March 2014 at 2.25 p.m.

(iii)	The First, Second and Third Defendants were each personally served on the 14th of March 2016 at 6.30 p.m.; 11.45 a.m. and 7.00 p.m. respectively

(iv)	The Fourth Defendant was also personally served on the 13th of March 2016 at 3.30 p.m.

(v)	The Commissioner of Police (Eighth Defendant), service was effected at about 1.10 p.m. on one, Mr. Miviri, Legal advisor, Police Legal, Police Headquarters, Konedobu on the 7th of March 2014; In a further affidavit sworn on the 22nd of April 2014 and filed on the 25th of April 2014 (Document No. 4) he deposes to service of the Writ on one, Ms Elly Yandeken, Executive Secretary to Mr Nicholas Miviri, Legal Advisor.

(vi)	The Sixth and Seventh Defendants, service were effected on one, Willie Laka, Administrative Officer, Police Legal, Konedobu at about 1.30 p.m. on the 22nd of April 2014. 

Application for default judgment against the Eighth Defendant
 
22.	According to the contents of the affidavit of Detective Constable David Tai Labbe filed in support of the application, service on the Eighth Defendant was effected at about 1.10 p.m. on one, Mr. Miviri, Legal advisor, Police Legal, Police Headquarters, Konedobu on the 7th of March 2014; In a further affidavit sworn on the 22nd of April 2014 and filed on the 25th of April 2014 (Document No. 4) he deposes to service of the Writ on one, Ms Elly Yandeken, Executive Secretary to Mr Nicholas Miviri, Legal Advisor.

23.	That being the case, there are questions as to the service of the Writ on the Eighth Defendant. In order to determine the issue of service, I have perused the affidavit of service of Detective Constable Danny Tai Labbe of National Fraud and Anti-Corruption Directorate, Konedobu, sworn on the 22nd of April 2014 and filed on the 25th of April 2014 (Document No. 4) to see if service of the documents had been effected on the Eighth Defendants. In his affidavit he deposes to service of the Writ on one, Mr Nicholas Miviri, Director Legal and Ms Elly Yandeken, Executive Secretary to Mr Nicholas Miviri, Legal Advisor. 

24.	In Tima v Korohan (2006) N3045, the Court found that the Defendant has not been served with the writ pursuant to Order 6 Rule 2 of the National Court Rules. Whatever the difficulty maybe, there is no affidavit filed by the plaintiffs to explain the difficulty in serving the Eighth Defendant (Paul Marinda v The Independent State of Papua New Guinea (1991) N1026) nor there been any application filed seeking orders for substituted service on the Eighth Defendant. In Kuk v Yanga (2005) N2764 (2005) N2764 the court held that the filing of a notice of intention to defend is evidence of personal service. In this case, where none has been filed by the Eighth Defendant. I am satisfied that such failure is attributed to the fact that there is no evidence of personal service on the Eighth Defendant. In such circumstances, where the Eighth Defendant is unaware of the cause of action alleged against him, he is not in a position to take appropriate steps to defend his interest or to instruct counsel of his choice to defend him. 

25.	If the Eighth Defendant has not been served with the writ than the necessity for the filing of the Notice of Intention to Defend and a Defence to the claim does not arise. Let alone, the requirement to forewarn the Eighth Defendant of the pending notice of motion for default judgment. The Eighth Defendant cannot be expected to defend a claim or proceedings which have not been served on him and or that he is unaware of allegations raised against him.

26.	In that regard, it appears that service is not in compliance with Order 12 Rule 34 (a) & (b) of the National Court (proof of service of writ)) and Order 6 Rule 2 of the National Court Rules. Leaving that aside, I have taken the liberty to peruse the court file and documents filed in support of the application, that is the notice of motion and supporting affidavits it has become obvious that the plaintiffs have not satisfied all the necessary requirements under the Rules in relation to service of the writ. There is no proof of service on the Eighth Defendant. In this case, the plaintiff has failed to meet this checklist.

27.	Given the circumstances, that the plaintiff has failed to satisfy the requirement of service of the writ on the Eighth Defendant, it is my view that since the Eighth Defendant could not be in position to become aware of the proceedings raised against him and therefore was not alerted to the need to file a Notice of Intention to Defend and a Defence to the claim. Furthermore, since there is no proof of service, this leads on to the lack of proof of default on the part of the Eighth Defendant.

28.	With regard to the issue of forewarning, a letter of forewarning dated 18th of October 2016 was given to the Solicitor General. However, it should be noted that the Solicitor General has not filed a Notice of Intention to Defend the Eighth Defendant therefore, this letter does not meet the requirements for forewarning: Mapmakers Pty Ltd v BHP Co Pty Ltd (supra)); Chief Collector of Taxes v Dickson Panel Works Pty Ltd (supra). 

29.	Even then and given this fact; on the face of records, the Eighth Defendant has not filed a Notice of Intention to Defend and if the Plaintiffs had properly served the writ, they are not required to neither forewarn him nor serve him the Notice of Motion seeking default judgment.  However, as alluded to, above, the Plaintiff has not proven service of the writ and therefore, the requirement of forewarning is also inapplicable. There is no proof of service, this leads on to the lack of proof of default on the part of the Eighth Defendant.

30.	Consequently, if the writ was not served on the Eighth Defendant within the 2 year period stipulated on the originating process; then time for service has lapsed. The application for default judgment against the Eighth Defendant therefore cannot be sustained in law. There is no subsisting claim against the Eighth Defendant. It is only proper that the Eighth Defendant be removed as a party to these proceedings. 

31.	This then leads to the conclusion that there is no further need to discuss the issue of whether or not the statement of claim disclose a reasonable cause of action against the Eighth Defendant. 

Application for default judgment against the Ninth Defendant

32.	This then takes me to consider the application against the Ninth Defendants. 

33.	Clearly, there is no dispute that the Ninth Defendant was in default of failing a Defence within the time stipulated under s 9 of the Claims By and Against the State Act 1996. 

34.	Given this apparent default, I now consider whether the application for default judgment against the Ninth Defendant can be granted. In assessing the application, I note that the Ninth Defendant was personally served through the Office of the Solicitor General pursuant to s 7 (1) (b) and 2 (a) and (b) of the Claims By and Against the State Act 1996. 

35.	This is evidenced by the filing of a Notice of Intention to Defend by the Solicitor General on the 20th of July 2016 (Document No. 26). 

36.	The Solicitor General however failed to file a Defence within the requisite period allowed under s 9 (a) (i) of the Claims By and Against the State Act 1996 and time allowed under the Claims Act has lapsed. There is proof of default.

37.	With regard to the issue of forewarning, I note that a letter forewarning dated 18th of October 2016 was addressed to the Solicitor General forewarning her that in the event that if the Solicitor General does not take steps on behalf of the Eighth and Ninth Defendants to defend these proceedings; the Plaintiffs will apply for appropriate orders without further notice (Mapmakers Pty Ltd v BHP Co Pty Ltd (supra); Chief Collector of Taxes v Dickson Panel Works Pty Ltd (supra)). 

38.	Following that letter of forewarning, a search was conducted on the Court file pertaining to these proceedings. In the affidavit of search of Tabe Jugari sworn on 10th November 2016 and filed on 10th November 2016; Mr Jugari deposes to the facts that the Eighth and Ninth Defendants had not filed any documents in regard to defending these proceedings nor filed a Defence to the Claim. No application has been moved to extend time to file a Defence out of time and therefore the default continues. Whilst I note that the Solicitor General in this regard has not filed a Notice of Intention to Defend the Eighth Defendant and therefore the forewarning addressed to the Solicitor General is clearly inapplicable in respect of the Eighth Defendant. 

39.	That aside, in respect of the Ninth Defendant, I note that the plaintiffs have satisfied all the checklists identified in Giru v Muta (supra) and the application for default judgment is properly before the Court as against the Ninth Defendant.

Issue before the Court for determination

40.	The next issue to consider is whether this Court can enter default judgment against the Ninth Defendants given the purported default? 

Consideration of matters before the Court

41.	Firstly, the decision to either enter or refuse such application for default judgment is a matter of  discretion as held in Agnes Kunton & Ors v John Junias & Ors (2006) SC929; Lambu v Torato (2008) SC953. Matters that this Court can take into consideration in exercising discretion, include (amongst others) the question of whether the defendants appear to have a good defence (Kunkene v Rangsu & the State (1999) N1917; the extent of default by the defendant (Kunkene v Rangsu & State (supra); whether the pleadings are vague, i.e. whether the statement of claim discloses a reasonable cause of action (Laki v Alaluku (2000) N2001. This is because, ”even if the plaintiffs establish proof of due service of process on a defendant and proof of default, the Court still has a discretion to refuse to enter default judgment in cases where the effect of the default judgment would prejudice the rights of other co-defendants, or that the pleadings are so vague or do not disclose a reasonable cause of action or that the default cannot be sustained in law..”: (Kante Mininga v Independent State of Papua New Guinea, Doctor Ponifasio and Doctor Scotty Maclfish (1996) N1458).

42.	Further, in cases where vicarious liability is claimed, such as the present case, the plaintiff must name the servant or agent or alleged tortfeasor as defendant. The plaintiff must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant, the State: Kuk Kuli v. The State (2004) N2592; Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492. 

43.	Furthermore, where the plaintiff’s cause of action or entitlement to sue depends on a statute, it is crucial for the plaintiff to plead the necessary facts to bring him within that statute: Sear v. Lawson (1881) 16 Ch. D. 121; Read v. Brown (1988) 22 Q.B.D 128. 

44.	Finally, the court has inherent powers 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, and this includes making necessary orders to progress a case. Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085.

45.	The court has a very wide discretion to enter default judgment. As Injia J (as he was then) held in Kante Mininga v. The State (1996) N1458;

“Order 12 Rule 32 of the NCR gives the court a wide discretion to enter default judgment.  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 discretion to refuse to enter default judgment…”
	
46.	In Bella Kitipa v. Vincent Uali (1998) N1773, the Court categorized the situations where application for default judgment can be refused.  These were:

“1.	The effect of the default judgment 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 judgment cannot be sustained in law.”

47.	In determining whether the circumstances outlined above applied to this case, I am satisfied that the issue as to the rights of other co-defendants do not arise as default judgment has already been entered against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants on the 7th of July 2015 and has not been set aside. 

48.	However, the two remaining circumstances and or situations established in Bella Kitipa v. Vincent Uali (supra) will still need to be considered and determined. 

49.	In this case, I will deal with the issue of determining whether the pleadings are vague or do not disclose a reasonable cause of action and then determine whether default judgment can be sustained in law. In this regard, I have conducted a cursory inquiry of the pleadings in the Statement of Claim to determine whether the pleadings disclose a reasonable on a cause of action against the Ninth Defendants. In that exercise, I will have to examine the plaintiffs’ statement of claim particularly in regard to the question of the pleading of the necessary facts so as to bring the actions and or omissions of the defendants within the principles of vicarious liability of the nominal defendant, the State.

50.	Firstly, I note that the Plaintiffs have pleaded the names of the tortfeasor in the body of the Statement of Claim; however, I find no pleading of the necessary facts and Statute upon which they base their claim. In that they have not pleaded or established the nexus or connection so to bring into play the principles of vicarious liability between the principal tortfeasor and the nominal defendant, (the State”) who is the Ninth Defendant or an entitlement under a Statute, this Statute being the Wrongs (Miscellaneous) Provisions Act, Chapter 297.

51.	The Plaintiffs plead in summary; “the allegation that the First, Second, Third, Fourth, Sixth and Seventh Defendants set up an illegal roadblock and as a consequence, the Plaintiffs were assaulted detained and subjected to inhuman treatment resulting in the violation of their constitutional rights”. 

52.	However, upon further enquiry of the pleadings, I find that the plaintiffs have not pleaded the necessary facts giving rise to the actions or omissions carried out by the First, Second, Third, Fourth, Sixth and Seventh Defendants or the nexus or connection within which these actions or omissions were committed. More relevantly the plaintiffs have not pleaded or established the nexus or connection so as to bring into action the principles of vicarious liability between the principal tortfeasor and the nominal defendant, (the “State”) under s 1 (1), and 1 (4) of the Wrongs (Miscellaneous) Provisions Act Ch.297. The necessary facts to bring the actions and omission of the principal tortfeasor within that principle are missing. They only identified them as employees of the Fifth, Eighth and Ninth Defendants. 

53.	There is a missing link to the pleadings. The plaintiffs have not pleaded that the actions of the principal tortfeasors arose while performing or purported to perform the functions by virtue of instructions lawfully given by the Ninth Defendant. In this case, the plaintiffs failed to plead that the tort committed upon themselves were carried out by the principal tortfeasors (First, Second, Third, Fourth, Sixth and Seventh Defendants) whilst performing the functions during the course of their employment or whilst acting within the scope of their functions or duties as servants and agents of the Ninth Defendants under s 1 (1), and 1 (4) of the Wrongs (Miscellaneous) Provisions Act Ch.297. 

54.	For the Ninth Defendant (the “State”) to be held liable for the tort of a policeman or defence force officer (for that matter) as in this case, the Court has to be satisfied of three things and these are:

(a)	“Firstly, the policeman (and or the defence force officer (as in this case)) as a servant or agent of the State, committed the tort during the course of performing his functions and acting within the scope of his employment (s.1 (1) (a) Wrongs Act);

(b)	Secondly, the policeman (and or defence officer (as in this case)) as an officer of the State, committed the tort while performing or purporting to perform functions conferred or imposed upon him by statute or the underlying law (s.1 (4) Wrongs Act; The Independent State of Papua New Guinea v David Wari Kofewei and Ors [1987] PNGLR 5);David Kofowei v Augustine Siviri and Others [1983] PNGLR 449 and Abel Tomba v The Independent State of Papua New Guinea (1997) SC518. These cases did not say that vicarious liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. They must have been found to have been acting within the scope of their employment;

(c)	Furthermore, if a plaintiff's cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute (Sear v. Lawson (1881) 16 Ch. D. 121; Read v. Brown (1988) 22 Q.B.D 128) which also includes the specific pleading of the statute and the provision of that statute; and

(d)	In this case, the Statute here is the Wrongs (Miscellaneous) Provisions Act Chapter 297, ss 1(1) (a) and s 1 (4). The plaintiffs in this case have not pleaded the nexus or connection between the principal tortfeasors and the nominal defendant, the State”

55.	In Jack Pinda v Sam Inguba (2012) SC1181, the Supreme Court held that the lack of pleading is a point of law and must be founded on a proper pleading of a cause of action in law …..” Paul Gigmai -v- Motor Vehicles Insurance Limited (2004) SC750. In this case, the cause of action was based on the tort of negligence.  To succeed in having the Ninth Defendant held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that:

(a)	the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and

(b)	the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

56.	In Paul Gigmai -v- Motor Vehicles Insurance Limited (supra) the Court found that the pleadings in the amended statement of claim were lacking because while the appellant pleaded that the respondents were vicariously liable for the acts or omissions of their servants or agents and/or employees pursuant to section 1(1) of the Wrongs (Miscellaneous Provisions) Act, Ch 297, he did not plead that they committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law. The statement of claim does not allege that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and the first, second, Third, Defendants and ultimately the Third Defendant (State) to hold it vicariously liable in damages.  

57.	In other words, if the plaintiffs are alleging that the persons who investigate the complaint were servants, agents and/or employees of the State because they were policemen, it is not sufficient to only plead in the statement of claim that they were policemen but also plead that when they raided his stores, they were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

58.	Nevertheless, this court in the exercise of its discretion conducted a cursory enquiry of the matters pleaded in the Plaintiffs’ statement of claim to ascertain whether the statement of claim discloses a reasonable a cause of action against the Ninth Defendant. 

59.	Having perused the pleadings in the body of the Statement of Claim. I note that although the Plaintiffs have pleaded the names of the principal tortfeasors in the body of the Statement of Claim; they have not pleaded the necessary facts or established the nexus or connection so to bring into play the principles of vicarious liability between the principal tortfeasor and the nominal defendant, (the “State”) who is the Ninth Defendant or an entitlement under a Statute.

60.	On that note, I make particular reference to the pleadings in paragraphs 2.1 to 2.9 of the Statement of Claim which is repetitive in nature in relation to each of the principal tortfeasors, and what is pleaded against each and every one of them who are named as the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Defendants. 

61.	The pleadings are reproduced  in respect of these  Defendants as follows: 

“In paragraph 2.1- The First Defendant; Corporal Michael Suviro: 

(a)	is and was an employee of the Ninth Defendant

(b)	was serving under the general command of the Fifth Defendant;

(c)	was in charge and control of the Papua New Guinea Defence Force contingent members based at Tengo, Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the 4th Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Papua New Guinea Defence Force; and

(e)	is sued in that capacity.

In paragraph 2.2 – The Second Defendant; Lieutenant Chris Nayaba;
(a)	is and was an employee of the Ninth Defendant;

(b)	was serving under the general command of the Fifth Defendant;

(c)	was in charge and control of the Papua New Guinea Defence Force contingent members based at Tengo, Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the 4th Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Papua New Guinea Defence Force; and

(e)	is sued in that capacity.

In paragraph 2.3 – The Third Defendant; 2nd Lieutenant Alphonse Bige;
(a)	is and was an employee of the Ninth Defendant;

(b)	was serving under the general command of the Fifth Defendant;

(c)	was in charge and control of the Papua New Guinea Defence Force contingent members based at Tengo, Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the 4th Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Papua New Guinea Defence Force; and

(e)	is sued in that capacity.

In paragraph 2.4 - the Fourth Defendant; Captain Noel Hakopes;

(a)	is and was an employee of the Ninth Defendant;

(b)	was serving under the general command of the Fifth Defendant;

(c)	was the Group Contingent Commander and in charge and control of the Papua New Guinea Defence Force contingent members in the Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the 5th Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Papua New Guinea Defence Force; and

(e)	is sued in that capacity.

In paragraph 2.5 -The Fifth Defendant – The Commander of the Papua New Guinea Defence Force; 

(a)	is and was an employee of the 9th Defendant;
(b)	was and is the Commander of the Papua New Guinea Defence Force;

(c)	…;

(d)	…; and

(e)	is sued in that capacity

In paragraph 2.6 - The Sixth Defendant; Sergeant Aquila;

(a)	is and was an employee of the 9th Defendant

(b)	was serving under the general command of the Eighth Defendant;

(c)	was in charge and control of the Royal Papua New Guinea Constabulary contingent members based at Nogoli Papua New Guinea LNG site, Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the Seventh Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Royal Papua New Guinea Constabulary; and

(e)	is sued in that capacity.

 In paragraph 2.7 – the Seventh Defendant; Inspector Maragil;

(a)	is and was an employee of the 9th Defendant;

(b)	was serving under the general command of the Eighth Defendant;

(c)	was the Group Contingent Commander and was in charge and control of the Royal Papua New Guinea Constabulary contingent members in Hela Province;

(d)	was commanding the group members to execute daily commands and instructions from the Eighth Defendant as the Group Contingent Commander in pursuance of their reason for deployment as a member of the Royal Papua New Guinea Constabulary; and

(e)	is sued in that capacity.

In paragraph 2.8; the Eighth Defendant; Tom Kulunga – Police Commissioner

(a)	is and was an employee of the 9th Defendant;

(b)	was and is the Commissioner of the Royal Papua New Guinea Constabulary;

(c)	was and is responsible for the overall conduct and administration of the Royal Papua New Guinea Constabulary;

(d)	has the authority of control and direction on all individual members of the RPNGC throughout Papua New Guinea; and

(e)	is sued in that capacity.

In paragraph 2.9 – The Ninth Defendant - The Independent State of Papua New Guinea;

(a)	is and was the employer of all the named Defendants and the individual members serving under them;

(b)	is therefore vicariously liable for the actions and omissions of its employees and the individual members of the two Disciplined Forces (PNGDF and RPNGC) by virtue of s 1 of the Wrongs (Miscellaneous) Provisions Act Ch 297 and s 2 of the Claims By and Against the State Act 1996; and

(c)	is sued in that capacity pursuant to s 247 (2) of the Constitution.

In paragraph 14 -The plaintiffs pleaded that:

“the actions and omissions of the individual members of the 2 Discipline Forces as pleaded in paragraphs 7 to 10 of the Statement of Claim as a result of the Defendant’s failure to exercise diligent control and command over the individual members …also violated the Constitutional Rights of the Plaintiffs. The following provisions of the Constitution were breached: 

s 37 – General Protection of Law;
s 41 – Harsh and Oppressive; 
s 36 –Freedom from inhuman treatment; 
s 52 – Right to freedom of movement; 
s 43 – Liberty of a person;
s 44 – Right to Privacy; and 
s 53 - Protection from unjust deprivation of property”

62.	I note that Paragraph 14 of the Statement of Claim is merely a passing reference to the Constitution and is not specifically pleaded as to the individual breaches that is alleged to have been breached and by whom.

63.	Overall, it appears that the main pleading here is in relation to the duty of care and or lack of duty of care. There is no pleading as to a nexus or connection to the Ninth Defendant to hold the Ninth Defendant vicariously liable for the actions and or omissions of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants (see Jack Pinda v Sam Inguba (supra)). The lack of pleading is a point of law and must be founded on a proper pleading of a cause of action in law …..” and where it is based on the tort of negligence (Paul Gigmai -v- Motor Vehicles Insurance Limited (supra)). 

64.	Furthermore, to succeed in having the Ninth Defendant held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1) (a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297. 

65.	The pleadings in the amended statement of claim were lacking because while the plaintiffs pleaded that the Ninth Defendant is vicariously liable for the acts or omissions of their servants or agents and/or employees they did not plead that the policemen and defence force personnel committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law. 

66.	The statement of claim does not allege that the policemen and defence force personnel were acting in the course of their employment and or within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  

67.	This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and defence force personnel as the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants and ultimately the Ninth Defendant (State) to hold it vicariously liable in damages.  

68.	The Plaintiffs have pleaded in the Statement of Claim that the First, Second, Third, Fourth, Sixth, and Seventh Defendants “conducted an illegal roadblock”. It is in that contexts that I am led to conclude that since this is the allegation; that this is “an illegal roadblock” that has been set up by the First, Second, Third, Fourth, Sixth, and Seventh Defendants. The plaintiffs here are alleging that the principal tortfeasors who set up an illegal road block were employees of the State or policemen and defence force personnel.

69.	Given this allegation, I am of the view that it is not sufficient to only pleaded in the statement of claim that they were employees of the Ninth Defendant and or policemen and defence force personnel. The plaintiffs must also plead that when the policemen and defence force personnel set up the illegal roadblock, they did so in the course of performing and acting within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability pursuant to section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

70.	In Pamenda Ipi Pangu v Mak Korr (2015) N6069 the Court held that the failure to properly plead the claim and particulars … is a serious defect. The Court also held that said that such a claim cannot succeed (Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370).  

71.	A Court cannot be asked simply to speculate on whatever the evidence may be of value and in this case where the Plaintiff is pleading a case based on vicarious liability, this Court should cast a precursory glance over the pleadings to determine whether a cause of action exist as against the Defendant, the State. 

72.	There is no proper pleading of agency and certainly no pleading of the statutory basis of that agency by a specific pleading of section 1 (1) of the Wrongs (Miscellaneous Provisions) Act as required by the law (Jacob Simbuaken v Neville Egari (N3824) and, the Common Law principle in Sear v Lawson (1881) Ch. 16 D. 121 and Read v Brown (1888) 22 QBD 128 which is adopted by the PNG Courts, applied and followed them as authority for the proposition that, if a Plaintiff’s cause of action depends on a statute, the Plaintiff must plead all and facts necessary to bring him or her within that statute. This has not been done.  The Plaintiffs failed to plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant, the State. 
	
73.	In cases where vicarious liability is claimed such as this case, the plaintiff must name the servant or agent or alleged tortfeasor as defendant and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant, the State: Jack Pinda v Sam Inguba (supra) Kuk Kuli v. The State (supra); Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (supra).  Further, where the plaintiff’s cause of action or entitlement to sue depends on a statute, it is crucial for the plaintiff to plead the necessary facts to bring him within that statute: Sear v. Lawson (supra); Read v. Brown (supra); Vincent Kerry v The State (2007) N3127.This has not been pleaded in the Statement of Claim. 

74.	Equally, the court has inherent powers 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, and this includes making necessary orders to progress a case. Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority (2001) N2085.
	
75.	Upon consideration of the matters discussed above, I find that the Plaintiffs have failed to plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant, the State which is a serious defect.

76.	Failure to properly plead the claim and particulars is a serious defect and such a claim cannot succeed.  The Plaintiffs have not pleaded in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant, the State. Further, if the Plaintiffs’ cause of action or entitlement depends on a Statute, the Plaintiffs have not pleaded the necessary facts to bring them within the Statute.

77.	Consequently, I find that the pleadings in the Statement of Claim do not disclose a reasonable cause of action against the Ninth Defendant (the State). The application for entry of default judgment against the Ninth Defendant is unsustainable in law and I make orders as follows:

Orders

The Orders of the Court are:

(1)	There is no subsisting claim against the Eighth Defendant and therefore no order for entry of default judgment can be granted against the Eight Defendant and I order that the Eighth Defendant be removed as a party to the proceedings.

(2)	The application for entry of Default Judgment against the Ninth Defendant with damages to be assessed is refused, as no reasonable cause of action is disclosed against the Ninth Defendant and I order that the Ninth Defendant be removed as a party to the proceedings.

(3)	The matter progress to trial as default judgment has already been entered against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants.

(4)	Each party shall pay their own costs of this application.

______________________________________________________________
Haiara Lawyers: 	  Lawyers for the Plaintiffs
Solicitor General:    Lawyers for the First, Second, Third, Fourth, Fifth and Ninth 
	Defendants