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Stran Investment Ltd (trading as Stran Travel) v Papua New Guinea Electoral Commission [2022] PGNC 408; N9862 (15 August 2022)

N9862

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 539 OF 2018 (CC1)

BETWEEN:

STRAN INVESTMENT LIMITED trading as STRAN TRAVEL

- Plaintiff-

AND:

PAPUA NEW GUINEA ELECTORAL COMMISSIOM

-Defendant-

Waigani: Tamade AJ

2022: 12^th & 15^th August

PRACTICE AND PROCEDURE – default judgment – refusal to enter despite defendant being in default – alternatively summary judgment – requirements for summary judgment not met – application for both default judgment and summary judgment refused.

Cases Cited

The following cases are cited in the judgment:

Kunton v Junias [2006] PGSC 34; SC929
Prosec Security v Amalgamated general Workers Union of Papua New Guinea [2003] PGSC 5; SC714
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Counsel:

Mr Chrisman Sumba, for the Plaintiff

Mr Joppo Simbala, for the Defendant

12^th August, 2022

1. TAMADE AJ: This is a ruling on the Plaintiff’s Notice of Motion filed on 20 December 2018 seeking default judgment against the Defendant for failing to file a Defence in accordance with the time allowed to do so under the National Court Rules and in the alternative, seeking a summary judgment to be entered pursuant to the Rules against the Defendant.
   
2. It is admitted by the Defendant that they have not filed a Defence to the Claim. Mr Simbala of the Defendant relies on an Affidavit of himself filed on 10 June 2022 that is in support of an application to consolidate these proceedings and another proceeding by the Plaintiff in which Mr Simbala says are proceedings on the same cause of action and or the same subject matter. Mr Sumba has objected to the use of this Affidavit however I had ruled that the Affidavit of Mr Simbala in so far as it is relevant to the matters at hand to arrive at a decision on default judgment and or summary judgment, the Court will consider the Affidavit of Mr Simbala.
   
3. A perusal of the Statement of Claim reveals that the Plaintiff was engaged by the Defendant through the Late Sir Andrew Trawen (as Electoral Commissioner then) for provision of 6 x 20 foot Containers purchased from Consort Shipping Ltd to be supplied to the Electoral Commission and which was transported to the highlands region to be used as storage containers by the Electoral Commission to store ballot papers and election related items for the 2007 National General Elections.
   
4. The Plaintiff alleges that sometime in the month of September of 2007 after the return of Writs, the Defendant returned four of the said containers however two of the containers were retained in Mt Hagen by the Election Manager Mr Kala Rawali for the purpose of storage of disputed ballot papers and other related election documents and materials for Southern Highlands and Enga Province under an agreement of hire. The Plaintiff alleges that the Defendant hired the 2 x 20 foot container at a rate of K800 per day for each container commencing on the date of agreement on 29 September 2007. The Plaintiff alleges that the Defendant paid for invoices for 2008, 2009, 2010 and 2011.
   
5. The Plaintiff then states that he again issued invoices for the years 2013, 2014, 2015, 2016 and 2017 however the Defendant did not pay these invoices. On 13 July 2015, the Plaintiff states that it issued Section 5 notice pursuant to the Claims By and Against the State Act to make a claim against the State. It is stated that the State has been removed as a party to these proceedings by agreement of parties as the claim is essentially against the Electoral Commission. These proceedings were filed on 16 May 2018 and the Plaintiff has decided to apply for default judgment some four years later.
   
6. In the related proceedings filed as WS 3 of 2022 by the Plaintiff against the Electoral Commission and the State, the Plaintiff is claiming based on the same agreement entered into in 2007 but claims for unpaid invoices for the same containers for the years 2018, 2019, 2020, 2021 and 2022. The Plaintiff also claims for security costs over these two containers, airfares, accommodation and travelling allowances for the periods 2018 to 2021 for the costs in pursuing these unpaid invoices.
   
7. There is no issue that the Plaintiff has received some payment from the Electoral Commission in the sum of K52 800. This payment to my mind exceeds the costs of the containers itself. This payment was received by the Plaintiff on 28 March 2014 for invoices for the period 2007 to 2011.
   

Is the Plaintiff entitled to default judgment due to the Defendant’s failure to file a Defence?

8. The case of Kunton v Junias^[1] sets out clearly the law that a Plaintiff is not entitled to default judgment by way of a right. The grant of a default judgment is in the exercise of the Court’s discretion taking into account relevant considerations. The Supreme Court therefore said this:
   

“Entry of default judgment is not a matter of right. There are certain preconditions that have to be satisfied but even when all are satisfied, the decision whether to enter default judgment is a matter for the discretion of the primary Judge.

When exercising the discretion the range of relevant considerations is not closed...”

9. I consider the submissions by Mr Simbala and the evidence of the related proceedings that the cause of action is one and the same being on the letter of engagement by the Electoral Commission entered into in 2007. The Plaintiff is essentially claiming for the use of the two storage containers past the election period in 2007 and well into three election periods. It therefore raises the issue as to matters of evidence on the nature and intent of the agreement entered into with the Electoral Commission then in 2007 and as to when the agreement should have ended as the duration of the agreement refers to “at the pleasure of the PNGEC or when services are no longer required”. Perhaps a relevant consideration is whether at the outset, parties only intended for the agreement to last as long as the disputed ballot papers were to be held for the 2007 election and or perpetually as long as the container is in the custody or use of the Electoral Commission as is claimed by the Plaintiff in WS 3 of 2022? Those are matters that should be properly heard at a trial proper. It has also taken about four years since the filing of these proceedings for the Plaintiff to seek default judgment.
   
10. In the exercise of the discretion of the Court, I will therefore refuse the application for default judgment in this regard as the matter should be properly tried at trial.
    

Is the Plaintiff entitled to summary judgment?

11. Where there is a dispute on facts, there can not be a summary judgment entered as is stated in the Supreme Court case of Prosec Security v Amalgamated General Workers Union of Papua New Guinea^[2]. The Plaintiff has relied on Order 12 Rule 38 seeking summary judgment on the claim. Order 12 Rule 38 therefore requires that the Plaintiff or some responsible person in the Plaintiff must give evidence that in their belief, the Defendant has no defence in the claim. The grant of summary judgment is therefore discretionary. I find that the Plaintiff’s main contention is on a letter dated 16 June 2015 from the Electoral Commission from it’s Director of Finance to the Plaintiff that their outstanding payments are still held at the Finance Division. The letter is unclear as to what invoices the payments are for and for which periods etc.
    
12. The two elements required for summary judgment in Order 12 Rule 38 is as stated in the case of Tsang v Credit Corporation (PNG) Ltd^[3] where the Court said that:
    

There are two elements involved in this rule;

(a) evidence of the facts proving the essential elements of the claim; and
(b) that the plaintiff or some responsible person gives evidence that (in) his belief there is no defence.”

13. The Supreme Court also said that the discretion to enter summary judgment should be exercised sparingly and with great care and in the clearest of cases. If there are triable issues raised, an application for summary judgment should be refused. Having refused default judgment that this matter raised triable issues on the agreement for provision of services entered in 2007, I will also refuse the application for summary judgment.
    
    14. The Court therefore makes the following orders:
        
    1. The Plaintiff’s claim for default judgment and or alternatively summary judgment is refused.
    2. The Plaintiff shall meet the Defendant’s costs of the application.
       

Orders accordingly.

________________________________________________________________

Stran Investment Limited Inhouse Lawyers: Lawyers for the Plaintiff

Harvey Nii Lawyers: Lawyers for the Defendant

^[1] [2006] PGSC 34; SC929 (28 September 2006)

^[2] PGSC 5; SC714 (3 April 2003)
^[3] [1993] PNGLR 11