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Barker v The State [1976] PNGLR 340 (20 August 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 340 - Stanley Barker v The State, Richard H Davis, and Danis William Bux 

[1976] PNGLR 340

N54

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BARKER

V

THE GOVERNMENT OF PAPUA NEW GUINEA

FIRST DEFENDANT

DAVIS

SECOND DEFENDANT

AND

BUX

THIRD DEFENDANT

Waigani

Saldanha J

17 August 1976

20 August 1976

PRACTICE AND PROCEDURE - Application to set aside judgment by default - Practice rules to be complied with - Defence on merits - Explanation for default - Promptness of application - No reference to defence on merits - Application refused.

An application to set aside interlocutory judgment regularly signed in default of filing a defence, will not be granted unless the following practice rules are complied with:

(1)      there must be an affidavit stating facts showing a defence on the merits:

(2)      there must be a reasonable explanation why judgment was allowed to go by default; and

(3)      the application must be made promptly and within a reasonable time.

English practice prescribed by O. 2 r. 2 of the English Rules adopted and applied; Evans v. Bartlam, [1937] A.C. 473 at p. 480, Farden and Another v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124 at p. 130 and Smith v. Dobbins (1878) 37 L.T. (N.S.) 777 referred to.

Held

Accordingly that where an application to set aside a judgment entered regularly in default of filing a defence was made promptly and there was a reasonable explanation why the judgment was allowed to go by default, but where the affidavit in support did not advert to any matter of defence on the merits but merely went to the question of quantum, the application should be refused.

Application to set aside Judgment

This was an application by the third defendant, in an action for conversion and negligence, to set aside an interlocutory judgment entered against him in default of his filing a defence.

Counsel

IR Molloy for the plaintiff (respondent)

JA Ross for the first and second defendants

GJ Cartledge for the defendant (applicant)

Cur. adv. vult.

30 August 1976

SALDANHA J:  This is an application by the third defendant to set aside an interlocutory judgment signed against him in default of his filing a defence.

The plaintiff issued a writ of summons against the defendants claiming K50,000.00 for the total loss of his catamaran by conversion and negligence.

It was served on the third defendant who handed it over to his solicitor at Lae, Mr. Rissen, with instructions to defend the suit. Messrs. McCubbery Train Love and Thomas, acting as city agents for Mr. Rissen, entered an appearance for the third defendant and required that a statement of claim be delivered. The statement of claim was delivered to the city agents on the 14th November, 1975. It was sent to Mr. Rissen by post but never reached him. The order on summons for directions required the defendants to deliver their defences within 28 days from the date of delivery of the statement of claim. The third defendant did not deliver a defence, and, after the time for filing the defence had elapsed, on plaintiff’s application an interlocutory judgment was signed against the third defendant on 19th February, 1976.

In his affidavit in support of his application to set aside this interlocutory judgment the third defendant states that he was not aware that judgment had been signed against him until he received a telephone call on 1st June, 1976, from Mr. Ross of the State Solicitor’s Office. (The State Solicitor was representing the first and second defendants.) The third defendant promptly informed his solicitors who filed an application on 20th June, 1976, for an order to set aside the judgment.

In his statement of claim the plaintiff avers as follows. He was the owner of a catamaran which he had left moored at Voco Point, Lae. On or about the 30th April, 1974, the second defendant acting as servant and/or agent of the first defendant, without the authority of the plaintiff, delivered the vessel or, alternatively authorized the delivery of the vessel to the third defendant and to another person or persons unknown to the plaintiff. Neither the third defendant nor the other person or persons with him had authority from the plaintiff to take possession of the vessel. The defendants converted the vessel to their own use and the third defendant personally and by his servants or agents after taking possession of the vessel so negligently and unskilfully handled the vessel that it was wrecked.

Both counsel agree that the judgment was regular and both say that where a judgment is regular before such an application can be granted there must be a compliance with the following rules:

(1)      There must be an affidavit stating facts showing a defence on the merits;

(2)      There must be a reasonable explanation why judgment was allowed to go by default; and

(3)      The application must be made promptly and within a reasonable time.

The third requirement, above is the English practice prescribed by O. 2, r. 2 of the English Rules. In the absence of a similar provision in our Rules I am of the view that the English practice should be followed. In this case the application was in fact made promptly.

With regard to (2) above the correct statement of the law appears in the following passage from the judgment of Lord Atkin in Evans v. Bartlam[cccxciv]¹:

“... It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default ... I do not think that any such rule exists, though obviously, the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion ... The supposed second rule does not in my opinion exist ...”

However, the applicant does have an explanation. The city agents sent the statement of claim to Mr. Rissen by post but Mr. Rissen did not receive it.

One of the earliest authorities in support of rule (1) is Farden and Anor v. Richter[cccxcv]². In this case Manisty J. said at p. 130:

“... in the absence of an affidavit showing that he has a good defence on the merits, the judgment against him ought not to be set aside. ...”

Huddleston B. in the same case[cccxcvi]³ said that in Smith v. Dobbins[cccxcvii]⁴ the Master of the Rolls appeared to have stated that it was “an inflexible rule” that a regular judgment properly signed could not be set aside without such an affidavit. A later authority in support is Evans v. Bartlam[cccxcviii]⁵ where Lord Atkin said:

“... The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence....”

The relevant parts of the third defendant’s affidavit which relate to the question of defence on the merits are contained in paragraphs 6 (iii) and 7 (i) and (ii). They are as follows:

“6(iii)   The vessel the subject of the claim was, in my opinion and in the opinion of the then Harbour Master, Lae, the second defendant herein, of little or no value.”

“7(i)    The damage that was occasioned to the said vessel was due solely to its condition, the construction of the vessel and weather conditions and not to any want of care or negligence on my part or on the part of any other person or persons, and

(ii)      No loss or damage was incurred by the plaintiff since the vessel was of no commercial value.”

Paragraphs 6 (iii) and 7 (ii) merely go to the question of quantum. Counsel for the respondent asserts, counsel for the applicant not dissenting, that the plaintiff has issued a writ of inquiry for the assessment of damages and that the third defendant will have an opportunity at the hearing to canvass his view that the vessel was of little or no commercial value.

The plaintiff has alleged that the catamaran was his, that the first defendant without authority delivered it or authorized its delivery to the third defendant, that the third defendant had no authority to take possession of it. The applicant has not adverted to any of these matters. He has chosen to ignore them. He has given no indication of what his defence is going to be to the charge of conversion. The bald assertion made in paragraph 7 (i) of his affidavit that the damage to the vessel was occasioned solely by its condition and construction and weather conditions and not by want of care or negligence on his part is not sufficient to meet the requirement that the affidavit must state facts showing a defence on the merits.

The application is dismissed with costs to the respondent.

Application dismissed with costs.

Solicitor for the plaintiff: Craig Kirke & Wright.

Solicitor for the first defendant: B. W. Kidu, State Solicitor.

Solicitor for the second defendant: B. W. Kidu, State Solicitor.

Solicitor for the third defendant: McCubbery Train Love & Thomas.

[cccxciv] [1937] A.C. 473 at p. 480.

[cccxcv][1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124 at p. 130.

[cccxcvi][1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124 at p. 129.

[cccxcvii](1878) 37 L.T. (N.S.) 777.

[cccxcviii] [1937] A.C. 473 at p. 480.