N7508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF   JUSTICE]

WS NO 79 OF 2016

JEROLYN TIKAL
Plaintiff

V

PAUL EDDIE PAU as POLICEMAN
First Defendant

And
PETER PHILIP as PROVINCIAL POLICE COMMANDER
Second Defendant

And
GARI BAKI as COMMISSIONER FOR POLICE
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Wewak: Geita J
2018, 4, 11 July

PRACTICE AND PROCEDURE — application for default judgment — defence filed out of time — preconditions for entry of default judgment — checklist to be satisfied — court has discretion whether to enter default judgment when defendant in default —National Court Rules, Order 12, Rule 32.
Cases cited:
Bredmeyer J.Kunton v Judias [2006] SC929
Chief Collector of Taxes v Dickson Panel Works Pty Ltd [1988] PNGLR 186 
Kewakali v Independent State of Papua New Guinea [2011] SC SC109
Mapmakers Pty Ltd v BHP Co Pty Ltd [1987] PNGLR 78 
Urban Giru v Luke Muta and 2 Others (2005) N2877
Counsel: 
Mr. Otto Ogen Dekas, for the Plaintiff 
Mr. Enoch Manihambu, for the Defendants 

RULING ON MOTION

11 July, 2018
1.	GEITA J:	This is an application for default judgment. The plaintiff filed a writ of summons. She served it on the defendants, only the Third and Fourth defendants filed a notice of intention to defend. The First and Second Defendants have yet to file their notice of intention to defend. 
Background
2.	In the substantive case the plaintiff is claiming damages against the defendants for losses, pain and suffering she claims to have incurred because of the unlawful and negligent actions of the defendants. 
3.	On Thursday 1 January 2015 during the early morning hours, the first defendant and other policemen conducted a police raid at Sepik Timber settlement to capture certain suspects believed to be hiding in that settlement. In the course of the police operations the plaintiff and her family members were approached and roughed up. The first defendant discharged his assault rifle with bullets penetrating the floor and seriously wounded the plaintiff’s thigh and forearm. The plaintiff sustained a deep wound on her left thigh which bled heavily at the time of the bullet impact and later left with a big ugly scar on her body.
4.	On 17 February 2016 the plaintiff filed a writ of summons with a statement of claim. On 21 June 2016 the writ was served on the third and fourth defendants through the Solicitor General’s Office in Port Moresby. On 18 June 2016 the writ was served on the first defendant in person at Wewak Police Station. On 13 September 2016 the writ was served on the second defendant at Wewak Police Station but refused to accept receipt and service but was eventually received by his personal assistant.
5.	On 3 October 2016 the third and fourth defendants filed notice of intention to defend. No defence was filed by the first and second defendants. Notwithstanding varying service dates on defendant’s they all have defaulted by 4 months to file and serve defence. (See National Court Rules Order 8, Rule 4 (a) and Order 4, Rule 11 (b) (i).) 
6.	The plaintiff says that she has complied with and satisfied all the pre-conditions set out under Order 12 rule 34 & Order 4 rule 49 (19) (3) (a)-(iv) of the National Court Rules and now seeks default judgment against the defendants. Although the State has filed a notice of intention to defend on 3 October 2016, it has failed to files its defence which resulted in default on the part of the State. (Order 12, Rule 25 National Court Rules). The first and second defendants have not filed a Notice of Intention to Defend or filed a Defence.
7.	Counsel of plaintiff Mr. Otto Ogen Dekas however concede that no fresh search of the court files and fresh affidavits of search were done prior to moving its motion. (See Order 4, Rule 49 (19) (3) National Court Rules.) He attributed this lack due to the uncertainty surrounding when civil cases would be fixed here in this court. He however submitted that the grant or denial of default judgments was a discretionary matter and not as a matter of right and implored upon the court for a favorable consideration.(Kunton v Judias [2006] SC929 and Kewakali v Independent State of Papua New Guinea [2011] SC SC109.
8.	The Third and Fourth Defendants concede that they were late in filing their defence. They also concede and elected not to contest the preconditions for entry of default judgment but take issue with the requirements of service as required by law. The First and Second Defendants continue to make no appearance despite service.
9.	Numerous judgments have emerged over time crystallizing what ought to be a checklist of pre-conditions for courts to use when dealing with applications for default judgments. To this end I am indebted to His Honour Cannings J and his simplified look into the necessary rules governing default judgments in the case of Urban Giru v Luke Muta and Others (2005) N2877. I quote:
“...In most cases where the Court deals with an application for default judgment, there is a checklist of at least six pre-conditions to consider. All the items in the checklist must be satisfied or ticked ÓK’ before the Court can exercise its discretion to enter a default judgment. If one is not satisfied, the court will refuse the application, unless there are special circumstances. (See generally National Court Rules, Division 12.3 	(default judgment).)”
10.	The six checklists in the Urban Giru v Luke Muta and Others (supra) are adopted and applied in this case; 
No 1: Proper form
Is the notice of motion for default judgment in the proper form and is it supported by affidavit, as required by Division 4.5 (motions) of the National Court Rules, in particular Rules 40 (contents of motion) and 44 (affidavits)?
No 2: Service of notice of motion and affidavits  
(a)	Has the notice of motion and the affidavit(s) in support and all other documents the plaintiff is relying on, been served on the defendant three days before the motion is heard, and is proof of service provided by an affidavit of service? (National Court Rules, Order 4, Rules 38 (notice necessary), 42 (time for service of notice), 43 (service) and 44 (affidavits).) OR
(b)	Has the defendant 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?
No 3: Default
The defendant must be ‘in default’.
(a)	Has a notice of intention to defend NOT been filed or been filed late? (The normal time limit for giving a notice of intention to defend is 30 days 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)	Has a defence 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).)
Note 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)). 
No 4: Warning
(a)	Has the defendant NOT given a notice of intention to defend? OR
(b)	If the defendant has given notice of intention to defend, has the plaintiff given the defendant at least seven days’ notice of the intention to apply for default judgment, as required by Practice Direction No 1 of 1987? (See 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, National Court, Bredmeyer J.)
No 5: Proof of service of writ 
(a)	Has the plaintiff filed an affidavit proving due service of the writ of summons or notice of the writ on the defendant? (National Court Rules, Order 12, Rule 34(a) (proof of service of writ).) OR
(b)	Has the plaintiff produced 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).)
No 6: Proof of default
Has the plaintiff filed an affidavit proving the default upon which the plaintiff relies? (National Court Rules, Order 12, Rule 34(c) (proof of service of writ).)
11.	Since there is no contest on all other pre-conditions by the State save service requirements and remarks on some aspects of the plaintiffs affidavit material now before the Court. Counsel of State has correctly pointed out he is precluded from giving evidence from the bar table as the State has not filed any affidavit material from which to rely upon.
12.	As regards service Mr Manihambu argues that since all named defendants in the writ and statement of claim were not properly served, such service cannot be deemed proper service. This is more so with the tortfeasor as he must be properly served in order for him to defend himself. Mr. Manihambu submitted that the plaintiff has not sufficiently demonstrated to the Court that all relevant documents were served to all named defendants with properly attested acknowledgments. The Court therefore should not exercise its discretion in favour of the plaintiff. 
13.	As regards the plaintiff’s inaction in prosecuting its notice of motion for default judgment after a lapse of two year from when the writ was first filed on 17 February 2016, the plaintiff has again not sufficiently demonstrated to Court for its inactions. Hence this motion should not be granted, notwithstanding the Courts discretionary power to do so taking into account other considerations necessary brought to its attention.
The present case
14.	Has the plaintiff filed an affidavit proving due service of the writ of summons or notice of writ on the defendant? (National Court Rules, Order 12, Rule 34(a) (proof of service of writ.
15.	Proof of service of the writ is contained in the affidavits of Mr Otto Deke sworn on 20 April 2016 for the third and fourth defendants. Proof of Service of the writ is contained in the affidavit of Jerry Tikal sworn on 18 June 2016 and 4 October 2016 for the first and second defendants. The plaintiff has indeed complied with the necessary proof of service requirements therefore the defendants contention in this regard is struck out.
16.	The defendants’ contention that the plaintiff has not taken pro-active steps to prosecute his motion has some merit however the fault does not lie solely on his actions or inactions. His inactions in my view can easily be explained away in that all civil cases in this Court have not been properly scheduled and allocated time slots to be determined. This ad-hoc arrangement in scheduling civil cases has contributed to lawyers failing to comply with the accepted practice and procedure in civil proceedings. For instance in this case the plaintiff filed writ and statement of claim on 17 February 2016 on all named defendants. It filed this notice of motion on 12 January 2018, two years after the write was filed. In their haste to have their day in Court this month they have not complied with default judgment requirements as envisaged by Order 4, Rule 49 (19) (3) National Court Rules: the conduct of fresh file search before the filing on its notion. Ideally such omission would be one of the reasons why the plaintiff’s application for default judgment is turned down. I have deliberately decided against penalizing the plaintiff for the same reasons given earlier.
17.	Both Counsels have correctly pointed out that the grant of default judgment is not a matter of right and is subjected to courts exercise of discretion. Both Counsels concede that glaring flaws and omissions exist on their part in this motion. The Court is not free from blame worthiness. Our actions and or inactions have also contributed to the confused state of not diligently scheduling and attending to civil cases in this province including the two other provinces which come under our jurisdiction. Lawyers therefore have not be greatly assisted by this Court in my view. This Court has now taken steps to immediately schedule a civil case call-over in the month of September. To my mind the interest of justice would not be served by the entry of default judgment in all the circumstances I have alluded to above. 
18.	Due to the foregoing reasons and in the exercise of my discretion I will refuse to enter default judgment and allow the matter to proceed to trial. Both parties therefore are now given an equal playing field or a clean slate to proceed with the following consequential directions:
•	This matter is adjourned to the September 2018 call-over for Mention.
•	The plaintiff is to file and serve on the defendants any affidavits they wish to rely on by 25 July 2018.
•	The four defendants are to file and serve on the plaintiff any affidavits they wish to rely on by 10 August 2018.
Costs
19.	Under normal circumstances costs follow the event. However the defendants default in failing to file a defense over a period of two years is inexcusable and very unreasonable. It follows in my view that the plaintiff’s attempt to obtain default judgment was reasonable. As a matter of discretion I will award costs of these proceedings to the plaintiff.  
ORDER
20.     The order of the Court is in the following manner:
•	The plaintiffs application for default judgment is refused; and
•	Costs of these proceedings shall be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed.

__________________________________________________________________
Murray & Associates : Lawyers for the Plaintiff	 
Solicitor General : Lawyers for the Defendants