SC1336

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 105 0F 2013

MURISO POKIA
Appellant

V

MENDWAN YALLON
First Respondent

DOROTHY NANAI
Second Respondent

SENIOR CONSTABLE JOB EREMUGO
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika DCJ, Cannings J, Kariko J
2014: 28 April, 2 May

PRACTICE AND PROCEDURE – setting aside by National Court of default judgment on ground of defence on merits – dismissal of proceedings by National Court on ground of abuse of process – circumstances in which default judgment may be set aside – whether there was a multiplicity of proceedings, warranting a finding of abuse of process.

The appellant appealed against an order of the National Court, which set aside two default judgments entered in his favour in the same proceedings and dismissed the entire proceedings for abuse of process. He argued that the National Court should have dismissed the motion by which the respondents sought and obtained the order being appealed against as: (1) the notice of motion was incompetent; (2) the requirements for setting aside default judgment were not complied with; (3) he was denied natural justice by the National Court; and (4) the finding of abuse of process was based on the primary Judge's misconception that he had commenced two proceedings concerning the same cause of action.

Held:

(1)	The notice of motion was non-compliant with the National Court Rules, Order 4, Rule 49(8) as it did not contain a sufficient reference to the Court's jurisdiction to grant the orders sought. It referred to irrelevant laws. It should have referred to Order 12, Rule 8 and/or Order 12, Rule 35 of the National Court Rules. However it lay within the discretion of the primary Judge to nevertheless hear and determine the motion. No error of law was involved in the primary Judge deciding to hear and determine the motion.

(2)	If a default judgment is so irregularly entered as to be a nullity, a defendant is entitled to have it set aside as of right. However, if the default judgment cannot be regarded as a nullity, and whether or not there was some irregularity in the entry of judgment (eg that a rule of court was not complied with), the defendant must prove (by evidence of the defendant (not of his lawyer) that: (a) the application to set aside the default judgment was made within a reasonable time of the judgment becoming known to the defendant; (b) there is a good explanation for the judgment being allowed to be entered by default; (c) there is a defence on the merits. Here the primary Judge erred in law by not insisting on compliance with those requirements.

(3)	The National Court is obliged to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are the duty to act fairly and in principle to be seen to act fairly. The appellant failed to convince the Supreme Court that those requirements were breached.

(4)	An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Here the appellant had prior to commencing the proceedings that are the subject of appeal, commenced similar, related proceedings. But the causes of action – defamation, negligence and unlawful deprivation of his children – accrued on different dates. The primary Judge erred in law in regarding the appellant as being guilty of duplicating proceedings. The proceedings were dismissed in error.

(5)	The appeal was substantially upheld and the order setting aside the two default judgments and dismissing the National Court proceedings was quashed and the National Court proceedings were reinstated and remitted to the National Court for directions.

Cases cited

The following cases are cited in the judgment:

Anderson Agiru v Electoral Commission (2002) SC687
Christopher M Smith v Ruma Constructions Ltd (2002) SC695
Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386
Grace Lome v Allan Kundi (2004) N2776
Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR 73
North Solomons Provincial Government v Pacific Architecture Ltd [1992] PNGLR 145
Telikom PNG Ltd v ICCC (2008) SC906

APPEAL

This was an appeal against an order of the National Court, which set aside two default judgments obtained by the appellant and dismissed the entire National Court proceedings.

Counsel

M Pokia, the appellant, in person

2nd May, 2014 

1. BY THE COURT: Muriso Pokia appeals against an order of the National Court that set aside two default judgments entered in his favour in the proceedings, WS No 148 of 2011, and dismissed the entire proceedings for abuse of process.

NATIONAL COURT PROCEEDINGS
2. In WS No 148 of 2011 the appellant was claiming damages for defamation, negligence and unlawful deprivation of custody of his children, against:

•	his former wife, the first respondent;
•	a child welfare officer with the National Capital District Family Welfare Service, the second respondent;
•	a member of the Police Force, the third respondent;
•	the State, the fourth respondent, which was claimed to be vicariously liable for the conduct of the second and third respondents.

3. The appellant claimed that on 27 August 2009 the second respondent, acting on a false complaint from the first respondent, wrote a defamatory letter to the third respondent, making unfounded allegations against him, and that the third respondent acted negligently on the letter and came to his house and unlawfully removed from his custody his two-year-old daughter.

4. On 7 July 2011 default judgment on liability was entered in his favour against the first, third and fourth respondents (the first, third and fourth defendants). On 25 July 2011 default judgment on liability was entered in his favour against the second respondent (the second defendant).

5. On 28 February 2013 the second, third and fourth respondents filed a notice of motion seeking an order that the two default judgments be set aside and that the entire proceedings be dismissed for being an abuse of process. The motion was heard by the primary Judge on 3 June 2013 and determined on 12 July 2013. The primary Judge upheld the motion and ordered that the two default judgments were set aside and that the whole proceedings were dismissed and that the appellant pay the respondents' costs of the proceedings. It is that order that the appellant is appealing against.

GROUNDS OF APPEAL

6. The notice of appeal contains 17 grounds of appeal, many of which are repetitious or overlap. They can be reduced to four. The appellant argues that the National Court should have dismissed the motion by which the respondents sought and obtained the order of 12 July 2013 as:

(1)	the notice of motion was incompetent (notice of appeal, grounds 1 and 2);

(2)	the requirements for setting aside default judgment were not complied with (grounds 9 to 17);

(3)	he was denied natural justice (ground 3); and

(4)	the finding of abuse of process was based on the misconception that he had commenced two proceedings concerning the same cause of action (grounds 4 to 8).

1	THE NOTICE OF MOTION WAS INCOMPETENT

7. The appellant argues that the notice of motion filed on 28 February 2013 was incompetent as it failed to comply with the National Court Rules, Order 4, Rule 49(8) as it did not contain a sufficient reference to the Court's jurisdiction to grant the orders sought.

8. The notice of motion sought orders that:

1	Pursuant to Section 149 of the Lukautim Pikinini Act, Section 113 of the Child Welfare Act, the inherent powers of the Court under Section 155(4) of the Constitution and pursuant to the Supreme Court decisions in Maku v Maliwolo (2012) SC1171 and William Mel v Coleman Pakalia (2005) SC790, an order that the default judgments entered against the defendants on 24 June 2011 and 13 July 2011 be set aside.

2	Consequently an order pursuant to Section 155(4) of the Constitution, Section 149 of the Lukautim Pikinini Act and Order 12, Rule 40 of the National Court Rules, that the entire proceedings be dismissed for abuse of process.

9. The National Court Rules, Order 4, Rule 49(8) (form of motions) states:

All motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.

The motion must state the following: "...move the Court for Order pursuant to (eg section 5 of the Claims By and Against the State Act...) ...".

10. The effect of Order 4, Rule 49(8) is that the motion cannot simply state the orders being sought by the mover of the motion. The motion must state the law, ie the court's jurisdiction, that the mover of the motion wants invoked to empower the court to make the order being sought. The reference to the court's jurisdiction must be concise, and it must be a correct and relevant reference to the source of jurisdiction. The reference must be to a written law. A reference to a decision of a court will not suffice.

11. We agree with the appellant that the notice of motion failed to meet the requirements of Order 4, Rule 49(8), in that:

•	The laws referred to were not the correct source of jurisdiction to be relied on in a motion to set aside a default judgment. Such a motion should contain a concise reference to the relevant provisions of the National Court Rules: Order 12, Rule 8 and/or Order 12, Rule 35.

•	The references to the two Supreme Court decisions were irrelevant and improper.

•	The reference to Section 155(4) of the Constitution was largely irrelevant.

•	The reference to Order 12, Rule 40 of the National Court Rules was vague and imprecise.

12. We do not agree, however, that the notice of motion was necessarily incompetent or that the primary Judge erred in hearing the motion. Order 4, Rule 49(8) vests a judge with a discretion to hear a motion that is non-complaint with this rule. Provided that the Judge is satisfied that the party responding to the motion (the appellant in this case) has been put on notice as to the case to be met and that no unfairness to that party will arise from hearing such a non-compliant motion, it is proper to hear the motion.

13. We consider that the primary Judge was so satisfied here and decided to hear the motion despite its non-compliance with the Rule. No error of law was involved in the primary Judge deciding to hear and determine the motion. Grounds of appeal 1 and 2 are dismissed.

2	REQUIREMENTS FOR SETTING ASIDE DEFAULT JUDGMENT WERE NOT COMPLIED WITH

14. The appellant relied on the decision of Lay J in Grace Lome v Allan Kundi (2004) N2776 to argue that the primary Judge erred in law by not insisting on compliance by the respondents with the requirements for setting aside default judgments.

15. In that case Lay J remarked that the law on setting aside default judgments is well settled. His Honour referred to the classic decision of O'Leary AJ in Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR 73 and to the leading decisions of the Supreme Court in Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386, North Solomons Provincial Government v Pacific Architecture Ltd [1992] PNGLR 145 and Christopher M Smith v Ruma Constructions Ltd (2002) SC695. His Honour summarised the requirements as follows:

•	If a default judgment is so irregularly entered as to be a nullity, a defendant is entitled to have it set aside as of right.

•	However, if the default judgment cannot be regarded as a nullity, and whether or not there was some irregularity in the entry of judgment (eg that a rule of court was not complied with), the defendant must prove (by evidence of the defendant (not of his lawyer) that:

(a)	the application to set aside the default judgment was made within a reasonable time of the judgment becoming known to the defendant;

(b)	there is a good explanation for the judgment being allowed to be entered by default; and

(c)	there is a defence on the merits, which must be particularised.

16. Here, neither of the two default judgments could be regarded as a nullity and the primary Judge properly set out the above requirements. However, with respect, we find ourselves in agreement with the submissions of the appellant that the primary Judge did not insist on compliance by the respondents with those requirements. We highlight the following matters:

(a)	The application to set aside the default judgments (made in February 2013) was made 19 months after their entry (in July 2011). That was an inordinate delay for which there was no proper explanation.

(b)	No good explanation was provided by the respondents for allowing the judgments to be entered by default.

(c)	There was a possible defence on the merits arising in particular from Section 113 (indemnity) of the Child Welfare Act, which states:

(1)	No civil proceedings may be commenced against the Director or an officer for or on account of an act, matter or thing done by him, or under his direction, and purporting to be done for the purpose of carrying out the provisions of this Act if the Director or officer acted in good faith and with reasonable care.

(2)	No civil proceedings referred to in Subsection (1) may be commenced more than six months after—

(a)	the time when the alleged cause of action arose; or

(b)	the person aggrieved by the act, matter or thing ceased absolutely to be a ward,

whichever last occurs.

(3)	Where, pending civil proceedings against the Director or an officer for or on account of an act, matter or thing done by him or under his direction and purporting to be done for the purpose of carrying out the provisions of this Act—

(a)	application to stay the proceedings is made to the court in which the proceedings are pending or were commenced; and

(b)	the court is satisfied that—

(i)	there is no reasonable ground for alleging want of good faith or reasonable care; or

(ii)	the suit or action was commenced out of time,

the court may stay the proceedings in the suit or action on such terms as to costs or otherwise as the court thinks proper.

17. However, the defence was not particularised in an affidavit by any of the respondents. Furthermore, the defence was only capable of indemnifying the second and fourth respondents. As for an equivalent provision, Section 149, in the Lukautim Pikinini Act 2009, we agree with the appellant that it could not provide a defence as that Act did not commence operation until 9 October 2009 and the indemnity it confers could not operate retrospectively to provide a defence to a cause of action that accrued on 27 August 2009.

18. With respect the primary Judge erred in law by not insisting on compliance with those requirements. This was a significant error and warrants an order quashing the part of the National Court order that set aside the default judgments. Grounds of appeal 9 to 17 are upheld.

3	DENIAL OF NATURAL JUSTICE

19. The National Court is obliged to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are the duty to act fairly and in principle to be seen to act fairly. The appellant has failed to convince us that those requirements were breached by the primary Judge. Ground of appeal 3 is dismissed.

4	ABUSE OF PROCESS

20. An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a "second bite at the cherry" to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).

21. Here the appellant had prior to commencing the proceedings that are the subject of appeal, commenced similar, related proceedings, WS No 687 of 2010, against the same respondents, which had not been withdrawn. The primary Judge took the view that the causes of action were the same and that the appellant was engaged in a multiplicity of simultaneous proceedings. Hence the abuse of process finding. That was the reason the primary Judge dismissed the entire proceedings.

22. We uphold the appellant's submission that the causes of action in the two proceedings – defamation, negligence and unlawful deprivation of his children – were similar, but they accrued on different dates. WS No 687 of 2010 was concerned with a letter written on 24 March 2009 by the second respondent to the third respondent. WS No 148 of 2011 was concerned with a letter written on 27 August 2009 by the second respondent to the third respondent.

23. We find with respect that the learned primary Judge erred in law in regarding the appellant as being guilty of duplicating proceedings. The basis on which the finding of abuse of process was made, was erroneous. The proceedings were dismissed in error. Grounds of appeal 4 to 8 are upheld.

CONCLUSION

24. The bulk of the grounds of appeal (Nos 4 to 17) have been upheld. Only grounds 1 to 3 have been dismissed. The appeal must be allowed and the order of 12 July 2013 setting aside the default judgments and dismissing the entire National Court proceedings will be quashed. The proceedings will be reinstated in the National Court. Costs will follow the event.

ORDER

(1)	The appeal is allowed.

(2)	The order of the National Court of 12 July 2013 in WS No 148 of 2011 is quashed.

(3)	The proceedings WS No 148 of 2011 are reinstated and remitted to the National Court for directions.

(4)	Costs of the appeal shall be paid by the respondents to the appellant on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
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