N6956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 600 OF 2016

BETWEEN
	HIGHLANDS PRODUCTS LIMITED
Plaintiff

AND
MATHIAS LUCAS 
for and on behalf of himself and 24 others of Zenag Village, Morobe Province
First Defendants

AND
YANA JOSEPH & YAWING GISUNGTAU
 for themselves and for and on behalf of TONGYU TRIBE, 
of Zenag Village, Morobe Province
Second Defendants

    Lae:  Murray, J	
   2017:  18th August

PRACTICE AND PROCEDURE – Notice of Motion to set aside Default Judgment – no Notice of Intention to Defend filed – requirement for leave – no leave sought – Order 7 Rule 2 of the National Court Rules.

PRACTICE AND PROCEDURE – Notice of Motion to set aside Default Judgment – form of motion – requirement to plead concise reference to the Court’s jurisdiction – discretionary power – Order 4 Rule 49 (8) of the National Court Rules

Cases Cited:

Hilary Singat vs. Commissioner of Police (2008) SC910

Counsel:

Mr. D. Bidar, for the Plaintiff
Ms. N. David, for the Defendants

DECISION
18th August, 2017

1.	MURRAY  J:	By a Notice of Motion filed on 2nd of May 2017, the Defendants sought the following orders:

(1)	An order that pursuant to Order 12 Rule 8 of the National Court Rules the order for Default Judgment made on 2nd December 2016 be set aside.

(2)	Pursuant to Order 12 Rule 1 of the National Court Rules and/or Section 155 of the Constitution the Plaintiff by itself or, its directors or officers or agents howsoever or otherwise be restrained from – 

(a)	Taking any action to enforce the said order of 2nd December 2016, and

(b)	Taking any action to part with or deal with the land described as Portion 250, Milinch of a Fourmil of Markham, Lae, Morobe Province, contained in State Lease Volume 23, Folio 155, pending the hearing of the substantive matters in these proceedings. 

(3)	The Plaintiff to pay the costs of this application.

(4)	Such other or further orders as the Court deems fit.

2.	In support of the application the Defendants relied on the following affidavits:-

(1)		Document No. 4 – Affidavit of Service of Sergeant Dick Forfin sworn on 12th September 2016, and filed on 13th September 2016.

(2)		Document No. 27 – Affidavit of Yana Joseph sworn on 5th May 2017, and filed 	on 5th May 2017.

(3)		Document No. 26 – Affidavit of Yawas Tosi sworn 5th May 2017, and filed 5th May 2017.

(4)		Document No. 25 – Affidavit of Nelson Barnabas sworn 5th May 2017, and filed 5th May 2017.

(5)		Document No. 39 – Affidavit of Ken Boi sworn on 5th May 2017, and filed on 	5th May 2017.

(6)		Document No. 40 – Affidavit of Gwai Philip sworn on 5th May 2017, and filed 	on 5th May 2017.

(7)		Document No. 24 – Affidavit of Ham Gila sworn 5th May 2017, and filed 5th May 2017.

(8)		Document No. 28 – Affidavit of Roy Gila sworn on 5th May 2017, and filed on 5th May 2017.

(9)		Document No. 23 – Affidavit of Manase Lucas sworn 5th May 2017, and filed 5th May 2017.

(10)	Document No. 38 – Affidavit Mark Joseph sworn 5th May 2017, and filed 5th May 2017.

(11)		Document No. 37 – Affidavit of Andrew Giamuki sworn on 5th May 2017, and filed on 5th May 2017.

(12)	Document No. 22 – Affidavit of Kipas Nima sworn on 5th May 2017, and filed 	on 5th May 2017.

(13)	Document No. 36 – Affidavit of Simon Yana sworn on 5th May 2017, and filed 	on 5th May 2017.

(14)	Document No. 32 – Affidavit of Paul Yapi sworn on 5th May 2017, and filed on 5th May 2017.

(15)	Document No. 35 – Affidavit of Gray Philip sworn on 5th May 2017, and filed 	on 5th May 2017.

(16)	Document No. 31 – Affidavit of Teni Amos sworn on 5th May 2017, and filed 	on 5th May 2017.

(17)	Document No. 34 – Affidavit of Tera Kiwi sworn on 5th May 2017, and filed on 5th May 2017.

(18)	Document No. 33 – Affidavit of Yaum Taikika sworn on 5th May 2017, and filed on 5th May 2017.

(19)	Document No. 29 – Affidavit of Kusukwio Yalamu sworn on 5th May 2017, and filed on 5th May 2017.

(20)	Document No. 30 – Affidavit of Salamo Mathias sworn on 5th May 2017, and filed on 5th May 2017.

(21)	Document No. 42 – Affidavit of Yawing Gisungtau sworn on 6th May 2017, and filed on 8th May 2017.

(22)	Document No. 43 – Affidavit of David Poka sworn on 8th May 2017, and filed 	on 8th May 2017.

3.		Apart from the affidavits Ms. David of counsel for the Defendants also relied on her written submission.

4.	Mr. Bidar for the Plaintiff/Respondent relied on the following affidavits:-

(1)	Affidavit of Philip Leahy sworn on 12th September 2016, and filed on 
30th September 2016;

(2)	Affidavit of Service by Dick Forfin sworn on 12th September 2016, and filed on 13th September 2016;

(3)	Affidavit of Service by Mark Giasa sworn 12th September 2016, and filed on 13th September 2016; and

(4)	Affidavit of Ronny Naroko sworn on 12th September 2016, and filed on 
30th September 2016;

5.	At the start of the hearing of the application by the Defendants, Mr. Bidar raised several preliminary matters and enquired if those could be heard first and a decision made before proceeding further.  I considered his request and decided that I hear the application by the Defendants, and in response to the application he could raise those preliminary points first before responding to the substantive application.  I further determined that when, deciding on the application, I would consider and determine the preliminary matters first and if I decide in favour of the Plaintiff on the preliminary matters then that would be the end of the matter.

6.	In line with that I now deal with the preliminary matters raised by Mr. Bidar.  Those are set out on page 2 of his written submissions.

7.	Mr. Bidar submitted firstly that the Defendants have failed to file a Notice of Intention to Defend and failed to obtain leave of the court prior to filing their application.  This Mr. Bidar submits offends Order 7 Rule 2 of the National Court Rules.  In support of this argument he refers to and relies on the case of Hilary Singat vs. Commissioner of Police (2008) SC910.

8.	In that case the Supreme Court said the relevant rule is Order 7 Rule 6 (1) which allows a defendant to file and serve his or her notice of intention to defend outside the prescribed time limit without the leave of the Court.  However, a defendant who so files a notice of intention to defend is at no liberty to file and serve his or her defence out of time or take any other step in the proceedings without the leave of the Court.  To do so would render the defence or step taken without leave, irregular and invalid but remain valid until declared as such.  The Supreme Court went further to state that the irregularity or invalidity attending the late defence or step taken without leave of the Court can be regularized or validated on proper application and good case being made out.  Until they are regularized or validated, no further step can validly be taken by reason of the irregularity or invalidity.  Furthermore the Court said it should follow therefore that a defence or any further step taken in any proceeding without leave of the court remains irregular and or invalid until regularized or validated by appropriate Court orders.  Hence, unless the irregular steps taken and documents filed are regularized or validated, they entitle the opposing parties to apply for a dismissal.

9.	In this case, a default judgment was entered for and on behalf of the Plaintiff against the Defendants on 2nd of December 2016.  The application now before the Court which is the subject of the Plaintiff’s objection to the application proceeding was filed on 2nd of May 2017.  The orders sought by the Defendants are as set out above which does not include an order for leave as required by Order 7 Rule 2 of the National Court Rules and what the Supreme Court has said in Hilary Singat vs. Commissioner of Police (supra) the case cited.
	
10.	Order 7, Rule 2 reads:

2. No step without notice of intention to defend.  (11/12)

Subject to these Rules, a person shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed originating process in the proceedings or has given a notice of intention to defend in the proceedings.

11.	Ms. David of counsel for the Defendants made no submissions in response.

12.	In the circumstances I only had the Plaintiff’s/Respondent’s submission to consider.  In my view it is very clear that the Defendants have offended Order 7 Rule 2 by proceeding without the leave of Court making their application irregular and or invalid.  At the time of the hearing, no order was sought to regularize or validate that application as no application by the lawyer for the Defendants was made for that purpose.  In the circumstances I would uphold the submission by the Plaintiff and would dismiss the Defendant’s application on that basis.

13.	I would also dismiss the Defendant’s application on the basis that the motion has not only offended Order 7 Rule 2 of the National Court Rules but has also offended Order 4 Rule 49 (8) of the Motion Amended Rules.

14.	Rule (49) 8 reads:

“All motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought.  Motions not containing such reference will not be accepted for filing.  If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.”

15.	Although the first part of Rule 8 is in mandatory terms, the last part of the rule gives the Court a discretionary power to strike out or dismiss a motion for being incompetent if it does not provide or insert a concise jurisdictional basis of the application.  Like all discretionary powers a Court’s power must be exercised on proper basis.

16.	In this case Mr. Bidar of counsel for the Plaintiff submitted that the Defendants’ application does not contain concise reference to the Court’s jurisdiction.  He further submitted that Order 12 Rule 8, sets out five (5) situations in which a judgment can be varied or set aside.  Therefore in order for the motion to be competent in this case Mr. Bidar submitted the Defendants ought to have made reference to the specific situation in which the application is being made.  In this case they have not done that and so the motion is incompetent and should be dismissed.

17.	Ms. David for the Defendants/Applicants on the other hand argued that her client’s application as it is, is sufficient and went on to say that there is a case that helps their application.  However, she could not point out the case that would support her argument and made no further submission.  I am therefore not persuaded to exercise my discretion in her favour.   Accordingly I have accepted the submissions by Mr. Bidar and would dismiss the motion on this basis as well.

18.	With respect to the third preliminary matter raised by Mr. Bidar that, the motion be dismissed as it is incomplete, I do not find that argument to be valid and I would dismiss that argument.

19.	With respect to the fourth preliminary matter raised by Mr. Bidar, which related to the second order sought by the Defendants, it is not necessary to address that, as the Defendants had withdrawn their application for that order. 

20.	With respect to the last preliminary matter raised by the Plaintiff, it is an extension of the first matter raised, therefore not necessary to address it. 

21.	Given that I have found in favour of the Plaintiff’s submission that the motion be dismissed on the first two (2) grounds of the objection raised by the Plaintiff/Respondent, there is no need for me to go further to consider this submission with respect to the motion as I have now found that the motion be dismissed on the basis that (1) the Defendants have not obtained leave before proceeding with this application and (2) that the Defendants have not complied with the requirement of Order 4 Rule 49 (8).

22.	The Plaintiff’s costs of and incidental to the application are to be paid by the 
Defendants.

Ordered accordingly.
_____________________________________________________________
O’Briens Lawyers:  Lawyer for the Plaintiff					
Niugini Lawyers:   Lawyer for the Defendants