N8497

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 93 OF 2020

BETWEEN:
PETER MAPUA AND JASON WEITAU FOR THEMSELVES AND ON BEHALF OF 31 OTHERS EX-EMPLOYEES OF G4S SECURE SOLUTIONS (PNG) LIMITED
Plaintiff

AND:
KERRY MCNAMARA AS MANAGING DIRECTOR OF G4S SECURE SOLUTIONS (PNG) LIMITED
First Defendant

AND:
G4S SECURE SOLUTIONS (PNG) LIMITED
Second Defendant

Madang: Narokobi J
2020: 10th & 11th September
PRACTICE AND PROCEDURE – default judgment–proper considerations to consider – discretion of the court to exercise - considerations satisfied -default judgment entered against the defendants

The plaintiffs originally commenced proceedings by way of a human rights application by completing form 124 of the Human Rights Rules 2010. The court than ordered that the plaintiffs file a statement of claim and that the proceedings continue by way of pleadings. The defendants have not filed their notice of intention to defend and their defence within the prescribed time, and the plaintiffs are now before the court, applying for default judgement.
Held:

(1)	Where the court has ordered that the plaintiffs file a statement of claim and that the proceedings proceed by way of pleadings, the National Court Rules apply with respect to the filing of Notice of Intention to Defend and Defense.

(2)	Entry of default judgment is a discretionary matter for the court.

(3)	In this case the considerations as set out in Agnus Kunton v John Junias (2006) SC929 were satisfied by the plaintiffs and it would be in the interest of justice to enter default judgement against the defendants with damages to be assessed.

(4)	Liability is entered against the defendants only in respect of breach of Section 41(1)(a)(b) and (c) of the Constitution and the claims for breach of other rights and freedoms are dismissed.
Cases Cited:
Agnus Kunton v John Junias (2006) SC929
Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773
Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
John Kunkene v Michael Rangsu and The State (1999) N1917
Kante Mininga v The State & Others (1996) N1458
Kina Finance Ltd v Andiki (2017) N7052
Pama v Gens (trading as Kanagio Security Services (2020) N8358
Petrus v Telikom PNG Ltd (2008) N3373
Tiaga Bomson v Kerry Hart (2003) N2428
Urban Giru v Luke Muta and Others (2005) N2877
Legislation cited:
Companies Act 1997
Constitution
Human Rights Rules 2010
National Court Rules1983
Counsel
Mr D Wa’au, for the Plaintiff
No appearance for the defendants

					RULING
11th September, 2020

1.	NAROKOBI, J:The plaintiffs have filed a notice  of motion on 28 August 2020 seeking entry of default judgment against the defendants pursuant to Order 12 rules 1 and 25 (a), (b) and (c) of the National Court Rules against the defendants for failing to file their Notice of Intention to Defend and Defense under Order 7 and Order 8 rule 4(1)(b) of the National Court Rules.

2.	In support of their application, the defendants rely on the affidavit in support of Darius Fuxton Wa’au filed on 28 August 2020 and the affidavit of service of Samuel Yangi filed on 8 September 2020.

A	PRELIMINARY ISSUE

3.	The preliminary issue I must first consider is whether to apply the provisions of the National Court Rules. Since my order of 14 July 2020 to have this matter converted to a statement of claim and continue by way of pleadings, I am of the view that the National Court Rules apply to the further conduct of the proceedings. I am mindful of the fact that where an order is made for a statement of claim to be filed but no consequential orders to continue with pleadings and application of the National Court Rules, then the default judgment procedure may not be available.

B	THE ISSUE

4.	The issue here is whether I should in the exercise of my discretion enter default judgment against the defendants with damages to be assessed.

C	BACKGROUND 

5.	The proceedings originally commenced through filling in of a human rights enforcement application form (form 124,Human Rights Rules 2010) as HRA 93 of 2020.

6.	On 25 June 2020, I made orders for the matter to continue by way of the applicants converting their claim to a Statement of Claim, and that further proceedings be by way of pleadings, and have it served on the respondents. This order was subsequently extended on 14 July 2020. The Statement of Claim and other relevant court documents were served on 24 July 2020. The Notice of Motion for default judgment and the supporting documents were served on 4 September 2020.

7.	The plaintiff says that it properly served all relevant court documents pursuant to the requirements of section 431(1)(b) of the Companies Act 1997 at the principle place of business of the defendants. I have considered the affidavit of service of Samuel Yangi filed on 28 August 2020 and 8 September 2020, and I am satisfied that the place they served the court documents was the principle place of business. The proof of service form shows acceptance of service by the defendants and the details of the office. 

D	THE LAW

8.	The manner in which the court ought to approach default judgment is settled in this jurisdiction, and they are set out in Agnus Kunton v John Junias (2006) SC929. In Agnus Kunton v John Junias, the Supreme Court stated that the Court can take into account a wide range of considerations, which was not closed, in deciding how to exercise its discretion and these include (and I am grateful to David J for setting them out in this way in Kina Finance Ltd v Andiki (2017) N7052):

•	whether the statement of claim raises serious allegations of fraud or deceit, in which case the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits (Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773);

•	the extent of the default by the defendant (John Kunkene v Michael Rangsu and The State (1999) N1917);

•	whether the defendant appears to have a good defence (Kunkene);

•	whether the statement of claim amounts to an abuse of process (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001);

•	whether the pleadings are vague, ie whether the statement of claim discloses a reasonable cause of action (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001, Urban Giru v Luke Muta and Others (2005) N2877);

•	whether the plaintiff has prosecuted his case diligently (Tiaga Bomson v Kerry Hart (2003) N2428);
•	whether the entry of judgment would prejudice the rights of co-defendants (Kante Mininga v The State & Others (1996) N1458, Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561);

•	whether the interests of justice would be served by the entry of default judgment (Urban Giru v Luke Muta and Others (2005) N2877).

9.	I turn now to each of these considerations in relation to the application.

E	APPLICATION OF THE LAW TO THE FACTS OF THE CASE

10.	Firstly, this is not a cause of action in relation to fraud or deceit, so it is not necessary to go to trial to have the allegations proven.

11.	Secondly, what is the extent of default by the defendants? I note that under Order 8 Rule 4 (b) of the National Court Rules, since the statement of claim is not endorsed on the writ, the defendants have 14 days to respond. That would be on or about 7 August 2020. It is now 11 September 2020, and no defence has been filed. This is confirmed from the affidavit of Darius Fuxton Wa’au filed on 28 August 2020 who conducted a search on the court files. That affidavit also confirms that a forewarning letter dated 4 August 2020 was sent to the defendants.   

12.	Thirdly, in relation to whether there is a good defence on the merits, since there is no defence filed, I conclude that there is no good defence on the merit.

13.	Fourthly, I examine the statement of claim. I am satisfied that it is not an abuse of process. It is a representative action and consent has been given from all the plaintiffs to mount the action. The statement of claim pleads that the defendants should properly calculate their entitlements and pay it to them, and it further claims that the manner in which they were treated offended a number of their human rights and freedoms, including section 41(1)(a),(b) and (c) of the Constitution. 

14.	I have noted the circumstances in which the plaintiff claims they were dealt with, that is:

•	No proper explanation given before signing the cessation notice;
•	No fortnightly salaries were paid during the lockdown period;
•	Threaten to get the police mobile squad to deal with them;
•	No explanation given for non-payment during the lockdown period
•	They were dealt with during the lockdown period; and
•	Failed to make proper payments and grossly underpaid them.

15.	The circumstances of this case are somewhat similar to Petrus v Telikom PNG Ltd (2008) N3373 and Pama v Gens (trading as Kanagio Security Services (2020) N8358. I therefore find that the plaintiffs have established a cause of action under s 41(1)(a),(b) and (c) of the Constitution, and dismiss the other claims pleaded as being inappropriate to the circumstances of this case. Most of the rights pleaded arise in the context of the rights of an accused in a criminal proceeding and so generally, are not relevant in an employer/employee relationship type of case. 

16.	Fifthly, I note the statement of claim is pleaded clearly, and not vague, and I am able to follow the series of events which the plaintiffs feel aggrieved over.

17.	Sixthly, after examining the activities in the file, I am able to see that the plaintiffs have diligently prosecuted their case, so I find this consideration in their favour. They have filed their application for default judgment soon after the occasion of the default arose.

18.	Seventhly, although there a co-defendants, the first defendant is an officer of the second defendant, and so the default judgment will not prejudice any co-defendants.

19.	Finally, in terms of the interests of justice, the plaintiffs appear to have a genuine claim, and after due service, the defendants have not responded, so the interests of justice would favour the grant of the default judgement.

E	CONCLUSION, COSTS AND ORDERS
20.	The rule of thumb is that costs follow the event, and I do not see anything going against costs being awarded against the defendants, and so award costs in the fixed sum of K1,000.00.

21.	I therefore order as follows:

1.	Default judgment is entered against the defendants with damages to be assessed for breach of the plaintiff’s rights under section 41(1)(a), (b) and (c) of the Constitution;

2.	Costs is awarded against the defendants at a fixed sum of K1,000;
3.	Matter is adjourned to 22 September 2020 at 9.30am for directions hearing for trial on assessment of damages; and
4.	Time is abridged. 

Orders accordingly.
 
D.F.W Lawyers:  Lawyers for the Plaintiff