N9864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 426 OF 2018

BETWEEN:
DAPHNE RIKIS FOR AND ON BEHALF OF THE ESTATE OF THE LATE RALP RORE RIKIS
- Plaintiff-

AND:
KORA NOU, AS MANAGING DIRECTOR FOR NATIONAL BROADCASTING COMMISSION
-First Defendant-

AND:
NATIONAL BROADCASTING COMMISSION
-Second Defendant-

Waigani: Tamade AJ
2022: 19th & 22nd August

PRACTICE & PROCEDURE – default judgment – statement of claim discloses a cause of action in negligence – self-represented litigant – plaintiff not able to seek services of a lawyer – default judgment entered on liability.

Cases Cited

Motor Vehicles Insurance Ltd v Nominees Niugini Ltd [2015] PGSC 22; SC1435 
Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399  
Kasper v Kiap [2020] PGSC 134; SC2047 
Telikom (PNG) Ltd v Wamara [2019] PGSC 4; SC1762 

Counsel:	

Ms Daphne Rikis, Plaintiff in Person
Mr Christopher Kup-Ogut, for the Defendants

22nd August, 2022

1. 	TAMADE AJ: This is a ruling on an application by the Plaintiff seeking default judgment against the Defendants. What should be stated about this case is that the Plaintiff is self-represented. The proceedings were previously instituted by the Plaintiff’s late father. Upon the passing of the Plaintiff’s late father, the Plaintiff being the daughter took it upon herself to maintain and pursue this matter. The Plaintiff’s claim concerns sewerage leaks from the nearby property belonging to the Defendants which the Plaintiff claims has affected her family dwelling structure, her home, her pets and her families’ livelihood. The proceedings were initially instituted in 2018 and after the passing of Ms Riki’s late father, she obtained letters of administration and substituted her late father as the Plaintiff. The proceedings had also evolved with the removal of the State and named Ministers and an Amended Writ of Summons was filed on 9 May 2022.

2. 	The Defendants have filed a Notice of Intention to Defend on 16 February 2021 however to date, no Defence has been filed nor is there an application to file Defence out of time. 

3. 	As Ms Rikis is a lay person, there have been many adjournments on this matter to allow negotiations and any out of court settlements to happen between the parties and to also to allow the Plaintiff to seek the services of a lawyer. Ms Rikis had informed the Court previously that engaging a private lawyer was not possible due to financial constraints and she was also informed to enquire at the Public Solicitor’s Office to engage legal aide. Notwithstanding that, Ms Rikis diligently attended every court session be it for motions and adjournments. The Defendants cannot be said to be so diligent. They had appeared previously through their inhouse counsel and then through counsel being Mr Kup-Ogut and it is their submission that they cannot file a  Defence as they are carrying independent assessment of the sewerage leak on the property and they have sought an adjournment stating that the matter should be adjourned for them to forward to Ms Rikis a copy of their report on the sewer leak as the leak could be from a leakage from the main sewerage pipe from Eda Ranu and not from the Second Defendant’s property. These are submission from Mr Kup-Ogut from the bar table in the absence of any Affidavit evidence where no defence has been filed.  The Defendants also submit that the Plaintiff should revisit her pleadings in the Statement of Claim to plead an identifiable cause of action and to properly plead her claim and they submit that the Plaintiff should really engage the service of a lawyer as her pleadings are not up to scratch so to speak.

4. 	The Courts have a duty to listen to every litigant and give a fair opportunity to every litigant to make out their case. Where litigants are self-represented and refuse legal representation for whatever reason be it financial constraints etc, the Courts still have to accord to them justice on the scale of fairness and accord to them the fairness that every litigant receives when coming to Court. On lawyers, the duty to the Court and to their clients is on a very high standard as it is a profession. It is my opinion that where litigants are self-represented and take it upon themselves to do the work of lawyers, they are subjected to the same due process of all the Court processes and the law is applicable equally even as to penalties resulting in costs. The approach to self-litigants may take an ounce more of some teaching, direction and translating the legal language and ensuring the litigant understands the process and the decisions of the Court but at the same time, maintaining a fair approach to counsel on the other side and same is the approach when dealing with a lawyer however sometimes the admonishment on lawyers is more firm and albeit severe than usual because  lawyers are expected to know and understand the law better. Be that as it is, the Court is tasked to rule on the Plaintiff’s application for default judgement and the objections by Mr Kup-Ogut. 

5. 	Ms Rikis at the hearing of her application for default judgment was very emotional and perhaps this is reflective of her attempts to come to closure on the matter and the disappointments of the many adjournments on the matter and one can only conclude that she is being emotionally vested in the matter as she is pursuing a matter that her late father had pursued concerning her home. The Court can acknowledge her dilemma however in coming to a ruling, the principles of the law are the dictates of what is fair and just in the case. 

6. 	The Plaintiff’s claim essentially is that there were building and plumbing defects in the Second Defendant’s property which resulted in raw sewerage being leaked to the Plaintiff’s property and polluted their property. The Plaintiff’s home was demolished on 26 June 2015 because of the sewerage leak from the Second Defendant’s property as the Plaintiff had to relocate the Plaintiff’s family as the Plaintiff claims that the Defendants did nothing to stop their sewer from leaking. 

7. 	Several letters and follow ups were done by the Plaintiff for the Defendants to rectify the issue sine 2016 and on 31 January 2017, NCDC Acting Chief Health Surveyor wrote a letter to the First Defendant to take remedial measures to alleviate the plumbing defects however nothing has been done by the Defendants. The Plaintiff therefore claims expenses in maintaining the sewerage pipes from spiling on their property, reimbursement of scientific investigation costs, medical expenses, loss of pets and costs for demolishing and relocating their house etc.

8. 	Mr Kup-Gut concedes that the Defendants are in default as they have only filed a Notice of Intention to Defend and have not filed a Defence and the time for filing a Defence has lapsed. Mr Kup-Ogut however states that the pleadings do not disclose a reasonable cause of action. In the case of Motor Vehicles Insurance Ltd v Nominees Niugini Ltd the Supreme Court held that after being satisfied as to the formal requirements of default judgement, the Court has a duty to be reasonable satisfied that a cause of action is disclosed in the Statement of Claim.

9. 	What then is a cause of action? The Supreme Court in the case of Patterson Lowa & Ors v Wapula Akipe & Ors   defined cause of action as underlined below:

“The phrase “cause of action” has been used in many pieces of legislation and has been the subject of judicial consideration in other jurisdictions. In Read v Brown (1888) 22 QBD 128, the Court of Appeal considered the meaning of the phrase “cause of action”. Lord Esher MR, with whom Fry LJ and Lopes LJ agreed, at p 131 said:
“It has been defined in Cooke v Gill to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition is too broad, but I cannot assent to this, and I think that the definition is right.”
The phrase “cause of action” has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s 58 of the Constitution. This is what is referred to as the “form of action”. Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action.

10. 	The Statement of Claim could be drafted by a lay person and could be done so poorly but what is clear is that there is a sewerage leak from the Second Defendant’s property which is affecting the Plaintiff and her family, and she is claiming for the loss of the impact the leak as had on her family property and on their livelihood. Perhaps this is a claim in negligence though not specifically pleaded however what the Court can see is a right as to full enjoyment of a home and the facts giving rise to the cause of action is the leakage from the Defendants sewerage that is causing havoc to the Plaintiffs home and affecting the Plaintiff’s right to full enjoyment of their home and is also affecting their livelihood, including their health and their pets. The pleadings therefore form the foundation of a claim and drive the evidence in a claim. Though the pleadings could be better improved cosmetically as they appear to be loose and poorly drafted, they are tenable in my view as they do not leave the Court guessing as to what it is they are claiming. 

11. 	I am satisfied that regarding the formalities of a default judgment, no Defence has been filed by the Defendants even though a Notice of Intention to Defend was filed and the time for filing a Defence to the Amended Writ of Summons has since lapsed, the Defendants have admitted to this. Service of the Writ of Summons and the Amended Writ as well as the application for default judgement has been duly caried out and there is no issues on this raised by the Defendants. Mr Kup-Ogut’s submissions on a technical report being carried out on the sewerage leak is not supported by any Affidavit. The Defendants are aware that there is a default judgement application pending by the Plaintiff however they have done nothing to file an application seeking to file a Defence out of time. 

12. 	The considerations for the grant of default judgment are discretionary and having been satisfied that the Defendants concede that they are in default of filing a defence, the question to ask is are the pleadings sufficient to enter default judgment as against the Defendants. I am satisfied that at the centre of a poorly drafted Statement of Claim, there is an identified cause of action and taking into account the Plaintiff’s efforts to seek redress of an issue they are so affected by, there is a right to a quiet enjoyment of a property which has been seriously affected by a leaking sewerage from a neighbourly property owned by the Second Defendant. I will therefore grant default judgement against the Defendants with damages to be assessed as the Plaintiff’s claims in the amount sought are unsubstantiated to my mind and the Plaintiff should be tasked to prove her claim on a trial proper.

13. 	The Court therefore makes the following orders:

i)	Default judgment is entered for the Plaintiff with damages to be assessed.
ii)	The Defendants shall meet the Plaintiff’s costs of the proceedings.

Orders accordingly.
_____________________________________________________________	
Ms Daphne Rikis: Plaintiff In Person 	
Kup & Co Lawyers: Lawyers for the Defendants