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Ambau v Kepa [2018] PGNC 410; N7526 (21 September 2018)

N7526

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1617 OF 2015
JAMES AMBAU
Plaintiff

V
MARTIN KEPA in his capacity as the Manager for Fraud Investigation of Telekom (PNG) Limited
First Defendant

CHRIS TERUPO in his capacity as the Manager for Human Resources of Telekom (PNG) Limited
Second Defendant

PETER LOKO in his capacity as the Chief Executive Officer of Telekom (PNG) Limited

Third Defendant
TELIKOM (PNG) LIMITED
Fourth Defendant

Vanimo: Geita J
2018: 21September

PRACTICE AND PROCEDURE — unliquidated damages - application for default judgment — no defence nor notice to defend filed – more than 2 years has lapsed –pre-conditions for entry of default judgment successfully met- need for forewarning prior to moving motion within seven days waived by court — court has discretion whether to enter default judgment when defendant in default — Order 12 Rule 25 (a) (b) and Order 12, Rule 28 of the National Court Rules.

Cases Cited:
Chief Collector of Taxes v Dickson Panel Works Pty Ltd [1988] PNGLR 186 Kewakali v Independent State of Papua New Guinea SC109" title="View LawCiteRecord" class="autolink_findcases">[2011] SC SC109
Kunton v Judias [2006] SC929
Mapmakers Pty Ltd v BHP Co Pty Ltd [1987] PNGLR 78
Urban Giru v Luke Muta and 2 others (2005) N2877

Counsel:
Kennedy Masket ,for the Plaintiff
No representation for the Defendants

RULING ON MOTION

21 September, 2018

1. GEITA J: This is an application for default judgment. The plaintiff filed a writ of summons and duly served on all the defendants. None of them filed notice of intention to defend or their defence.

Background

2. In the substantive case the plaintiff is claiming that the Defendants be ordered to process and complete his retrenchment benefits and that the defendants be restrained from terminating him. Furthermore he seeks general damages for mental anguish, pain and suffering including special damages for loss of and deprivation of retrenchment benefits. This includes exemplary and punitive damages.

3. The Plaintiff was given notice on 16 May 2011after internal investigations were completed on allegations for the sale and misuse of company assets. He was subsequently terminated on Friday 27 May 2011.

4. On 12 November 2015 the plaintiff filed a writ of summons with a statement of claim and served on the defendants on 20 January 2015. As of 28 February 2017 a file search by the plaintiff revealed that none of the defendants had filed notice of intention to defend or filed defence. At that point in time one year one month had lapsed. By the time of the hearing of this motion 2 years and approximately 9 months have lapsed. All defendants have therefore defaulted. (See National Court Rules Order 8, Rule 4 (a) and Order 4, Rule 11 (b) (i).)

5. The plaintiff says that he 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. Counsel of plaintiff Mr. Masket 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 &Kewakali v Independent State of Papua New Guinea SC109" title="View LawCiteRecord" class="autolink_findcases">[2011] SC SC109.

6. Counsel of plaintiff Mr Masket has referred me to the often quoted case of Urban Giru v Luke Muta and Others (2005) N2877 when applications of this nature are moved. That case by His Honour Cannings J has 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 will adopt and apply the principles in that case. 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).)”

7. 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

1. 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
2. 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’.

1. 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
2. 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

100. 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

1. Has the defendant NOT given a notice of intention to defend? OR
2. 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

1. 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
2. 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).)

The Present Case

8. Since there is no contest on all other pre-conditions by the defendants and remarks on some aspects of the plaintiffs affidavit material now before the court, the plaintiff as a matter of rules and process the motion ought to be granted. I am satisfied that all condition precedents have been met with all necessary supporting affidavits. The plaintiff has 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. The plaintiff has provided proof of service of the writ as contained in the affidavits to all defendants at their registered office in Port Moresby. The plaintiff has indeed complied with the necessary proof of service requirements to the satisfaction of this court.

9. Ideally a plaintiff in this types of cases must ensure compliance of the requirements of Order 4, Rule 49 (19) (3) National Court Rules: the conduct of fresh file search before the filing on its notion. My view is that very strict compliance of such rules in monthly circuit locations ought to be waived because of their uncertain nature. 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 20January 2015 on all named defendants. It filed this notice of motion on 3 January 2017, 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 . I have deliberately decided against penalizing the plaintiff for the same reasons given earlier.

10. Since the grant or refusal of default judgment applications is not a matter of right but subjected to courts exercise of discretion I will exercise my discretion in the plaintiffs favour. Might I add here that the court is not free from blameworthiness? Our actions and or inactions have also contributed to the confused state of not diligently scheduling and attending to civil case in this province including the two other provinces which come under our jurisdiction. Lawyers therefore have not be greatly assisted by this court I my view. This court has now taken steps to immediately schedule a civil case call-over in the month of November 2018. To my mind the interest of justice would be served by the entry of default judgment in all the circumstances I have alluded to above.

11. Due to the foregoing reasons and in the exercise of my discretion I will grant the entry of default judgment against all four defendants forthwith and allow the matter to proceed to trial at a later date for assessment of damages.

1. This matter is adjourned to the November 2018 call-over for Mention.
2. The plaintiff is to file and serve on the defendants any affidavits they wish to rely on by 9 October 2018.

100. The four defendants are to file and serve on the plaintiff any affidavits they wish to rely on by 25October 2018.

Costs

12. Under normal circumstances costs follow the event. However the defendants default in failing to file a defence over a period of two years is inexcusable and very unreasonable. It follows in my view that the plaintiff’s attempts to obtain default judgment was reasonable. As a matter of discretion I will award costs of these proceedings to the plaintiff.

ORDER

13. The order of the court is in the following manner:

1. The plaintiff’s application for default judgment is granted; and
2. Costs of these proceedings shall be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed.

_____________________________________________________________
Public Solicitor : Lawyers for the Plaintiff
N/A : Lawyers for the Defendants