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Mai v Papua New Guinea [1981] PNGLR 76 (18 March 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 76 - Pos Mai v Papua New Guinea 

[1981] PNGLR 76

N289(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

POS MAI

V

PAPUA NEW GUINEA

Mount Hagen

Pratt J

16 March 1981

18 March 1981

PRACTICE AND PROCEDURE - National Court - Judgment by default - Application for - Service of - Claim for unliquidated damages - Appearance entered - Orders for directions given - Service of notice of motion required - Rules of the National Court, O. 42, r. 7, O. 62.

In proceedings claiming unliquidated damages, where an appearance has been entered, a notice of motion to enter judgment by default pursuant to O. 42, r. 7 of the National Court Rules must be served upon the defendant in accordance with O. 62, r. 8 and regardless of whether there have been any orders for directions made in the matter.

Notice of Motion.

This was a notice of motion made ex parte, to enter judgment by default against the defendant.

Counsel:

P. Formosa, for the plaintiff.

Cur. adv. vult.

18 March 1981

PRATT J:  I have before me an ex parte notice of motion to enter judgment against the defendant and set down the matter of quantum of damages for hearing at a later date. No notice of this application has been given to the defendant. There are two other applications to the same end, one in W.S. 691 of 1980 and the other W.S. 681 of 1980. In each case appearance has been entered and in the action W.S. 681 of 1980 a defence was recently served on the Public Solicitor in Port Moresby. Such service was well over the time set out in the order on summons for directions.

In discussing the matters with counsel on 16th March, reference was made to O. 31, r. 11 and O. 42, r. 7 of the Rules of the National Court and a number of cases. Some of these are available in Mt. Hagen. Pioneer Concrete (North Coast) Pty. Ltd. v. Bennett[cxxx]¹ is unfortunately not available here, but counsel and I have referred to the note in 31 A. Digest (2nd ed.) 802. Other authorities which are of some assistance are Purcell v. Thomas[cxxxi]²; DePury v. Briggs[cxxxii]³; Redditch Benefit Building Society v. Roberts[cxxxiii]⁴ and The “Venus Destiny”[cxxxiv]⁵. The White Practice is of no assistance as there are specific rules promulgated in the United Kingdom, and these require service of such a motion on the defendant.

The major point for my determination here is whether a copy of the notice of motion should be served on the defendant before the matter is dealt with by the court. These applications are ex parte. No notice has been given to the other side that application for entry of judgment will be made during these sittings in Mt. Hagen. Mr. Formosa has argued persuasively that such notice is not necessary. Putting the submissions in a nutshell, he says that an order on a summons for directions was given back in July of 1980 in which the defendant and the plaintiff were given certain periods in which to attend to the pleadings. Mr. Formosa therefore argues that it would be an unnecessary repetition for further notice to be granted to the defendant who has already been told when he should have his defence filed. The consequences of not filing an appearance are of course set out at the conclusion of the statement of claim.

In the notice of motion reference is made to both O. 31 r. 11 and O. 42 r. 7. I would agree with counsel that these are the only two rules directly applicable to the circumstances of this case. Order 31 r. 11 reads:

“In all other actions than those in the preceding Rules of this Order mentioned, if the defendant makes default in delivering a defence, the plaintiff may set down the action as against him on motion for judgment, and such judgment shall be given as upon the statement of claim the plaintiff appears to be entitled to.”

There appears to be nothing else within that order that is applicable to a case such as the one before me where there is a claim for unliquidated damages arising out of a motor vehicle accident.

Order 42 r. 7 says:

“When judgment is desired upon default of pleading, or upon admissions, the cause shall be set down on motion for judgment, and a copy of the pleadings or admissions shall be filed.”

This rule does not apply to the cases mentioned in O. 31 rr. 2 to 9 which as I have already said do not apply to the circumstances of this case at all.

The requirements of a notice of motion simpliciter are covered in a separate order, O. 62. By r. 10 of that order, two clear days’ notice must be given to the other side. One would expect that if such notice were to be given for a motion for judgment, then that would appear in the order setting out the means whereby one obtains such judgment on motion. More particularly one would expect a rule similar to O. 62 r. 10, to appear in O. 42. I appreciate that the order on the summons for directions directs delivery of defence within twenty-eight days of the delivery of the statement of claim. I also appreciate that O. 31 r. 11 says that the plaintiff may set down the action on motion and further that the cause is set down by motion for judgment under O. 42 r. 7. But when one looks at this in the final analysis, what is a motion for judgment if it is not a motion encompassed under O. 62? Looking at O. 62 we find r. 1 stipulates that:

“When by these Rules any application is authorised to be made to the Court or a Judge, such application, if made to the Full Court or to a Judge in Court, and not required to be made by petition, shall be made by motion.”

The heading of O. 42 is “Motion for Judgment”. The heading of O. 62 is “Motions”. It would seem to me that O. 42 is dealing with a specific area but it is not intended that it should exclude the general provisions contained under O. 62 dealing with motions. We may look then at O. 62 r. 2:

“When a motion is made upon notice in a cause or matter, the notice shall be entitled in the cause or matter....”

to distinguish it from an originating notice of motion as has been done in this case. The title of the writ of summons appears on the motion for judgment. Order 62, r. 4 says that a notice of motion shall, inter alia, be “addressed to the party to be affected by the order sought”. Order 62, r. 8:

“... a motion or application shall not be made without previous notice to the party to be affected thereby. But the Court or a Judge, if satisfied that the delay caused by giving notice would or might entail irreparable or serious mischief, may make any order ex parte...”

And r. 10 stipulates that:

“Unless the Court or a Judge gives special leave to the contrary, which leave may be obtained ex parte, there must be at least two clear days between the service of a notice of motion and the day named in the notice for making the motion.”

Returning now to O. 62 r. 1 I repeat the stipulation there—”any application is authorised to be made to the Court or a Judge”. If we look at O. 42 r. 1, although the term “application to the Court or a Judge in Court” is not used in that rule, reference is made to “the judgement of the Court”. Again if one looks at O. 42 r. 6—”Upon a motion for judgment, the Court may draw any inference...” so it is clearly the court to which application is made rather than a judge. I draw attention to this matter because I do not think that such an application can be one made in Chambers under O. 65 r. 1(1) where reference is made to a judge as opposed to a judge in court. Consequently it cannot be a Chambers application either by way of motion in Chambers or summons in Chambers.

The upshot of all this reduces itself to the following. The authorities available in Mt. Hagen clearly indicate that such an application in the circumstances as at present may be made. What they do not clearly point out is whether or not notice must be given to the other side of such application. In my view, a motion for judgment must be treated like any other motion. It is a special sort of motion but must still comply with the general requirements of O. 62. It may well be that in many instances service of such a motion on the defendant may result in a defence being filed between the time the notice is served and the time it comes on for hearing. It would then be for the particular motion judge to decide whether or not to enter judgment as requested. It also seems to me to be pointless, if the defendant has (a) a good defence and (b) a valid reason for failing to file and serve his defence in time, to put the parties to the unnecessary expense of moving to set aside an order for judgment once it has been made. The difficulties created by such a situation are overcome by the plaintiff simply giving notice to the defendant that he intends to move for judgment on a particular day and then if that notice is served and the defendant does not appear, there can be seen to be little ground left on any subsequent application to set aside judgment.

I might add in conclusion that the form No. 17 appearing at p. 931 of the Laws of the Territory of New Guinea, that is the forms annexed to the present National Court Rules, sets out a “judgment upon motion for judgment”. There reference is made to the court having heard counsel for the plaintiff and counsel for the defendant. The inference from this reference in the form lends support to my belief that notice should be given by the plaintiff to the defendant of his intention to move for judgment on a named date.

Of course nothing I say here has any application to a case where no appearance has been entered. That is a different matter altogether.

Accordingly I adjourn the motion in this matter (W.S. 690 of 1980) to give time for the plaintiff, if he be so minded, to serve a copy of the notice of motion on the defendant. I make a similar order in relation to W.S. 691 of 1980 in respect of Seke Opa. In relation to Anthony Tipu (W.S. 681 of 1980), I also adjourn the matter generally to permit the plaintiff to determine whether or not he should still go ahead with the application in view of the fact that a defence has been served. As I said earlier, the fact that a defence has been served well out of time does not necessarily weaken the plaintiff’s application. It may well be however that having galvanized the defendant into finally serving a defence, the purpose of the rule has been served. In each case the matter may be mentioned on giving two days’ notice.

Orders accordingly.

Solicitor for the plaintiff: A. Amet, Public Solicitor.