Agnus Kunton and Betty Kunton and Kunton Pon and Pat Kunton, Peter Kunton & Konda Kunton, all infants by their next friend Tho Kunton v John Junias, Correctional Officer, Baisu Correctional Institution and The Independent State of Papua New Guinea (2006) SC929

• Jurisdiction: Papua New Guinea
• Judge: Los J, Jalina J, Cannings J
• Judgment Date: 28 September 2006
• Docket Number: SCA NO 158 0F 2004
• Citation: (2006) SC929
• Court: Supreme Court
• Year: 2006
• Judgement Number: SC929

Full Title: SCA NO 158 0F 2004; Agnus Kunton and Betty Kunton and Kunton Pon and Pat Kunton, Peter Kunton & Konda Kunton, all infants by their next friend Tho Kunton v John Junias, Correctional Officer, Baisu Correctional Institution and The Independent State of Papua New Guinea (2006) SC929

Supreme Court: Los J, Jalina J, Cannings J

Judgment Delivered: 28 September 2006

SC929

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 158 0F 2004

BETWEEN

AGNES KUNTON

First Appellant

BETTY KUNTON

Second Appellant

KUNTON PON

Third Appellant

PAT KUNTON, PETER KUNTON & KONDA KUNTON,

ALL INFANTS BY THEIR NEXT FRIEND THO KUNTON

Fourth Appellant

AND

JOHN JUNIAS,

CORRECTIONAL OFFICER,

BAISU CORRECTIONAL INSTITUTION

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Los J, Jalina J, Cannings J

2006: 29 August, 28 September

APPEAL

PRACTICE AND PROCEDURE – default judgment – refusal to enter despite defendant being in default – discretion of primary Judge – whether public policy considerations are relevant in exercise of discretion – whether to enter default judgment.

STATE SERVICES – Correctional Service – death of detainee in the course of escape – alleged shooting by correctional officer – liability of correctional officers – liability of the State.

A remandee at a correctional institution attempted to escape and was shot dead, allegedly by a correctional officer. The plaintiffs, the dependants of the deceased, commenced a civil action against the correctional officer and his employer, the State. They served the writ on the second defendant, the State, but not on the first defendant, the correctional officer. The State neither gave notice of intention to defend the action nor filed a defence thus being in default of the National Court Rules. The plaintiffs filed a motion for default judgment against the State. The primary Judge refused the motion as a matter of discretion, on grounds that this was one of the first cases of its kind and public policy considerations had to be carefully taken into account before concluding that the State was liable. This was an appeal against the refusal to enter default judgment.

Held:

(1) 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.

(2) When exercising the discretion the range of relevant considerations is not closed. In the present case the primary Judge reasonably took into account that this was a novel case, perhaps the first of its kind, and public policy made it desirable that the issue of liability be argued in a trial.

(3) The plaintiff was also in default of the National Court Rules as the writ and other court documents were not served on the first defendant.

(4) The motion for default judgment was properly refused.

(5) However, the primary Judge erred by remitting the matter to the call-over list without granting the defendants time to file a defence, so orders in those terms were made by the Supreme Court.

(6) Costs were awarded to the appellants, to be taxed if not agreed.

Cases cited

Papua New Guinea Cases:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773

Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001

John Kunkene v Michael Rangsu and The State (1999) N1917

Kante Mininga v The State & Others (1996) N1458

Ombudsman Commission v Peter Yama (2004) SC747

Tiaga Bomson v Kerry Hart (2003) N2428

Urban Giru v Luke Muta and Others (2005) N2877

Overseas Cases:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

APPEAL

This was an appeal from a judgment of the National Court refusing a motion to enter default judgment.

Counsel

A Kongri, for the appellants

K Kawat, for the 2nd respondent

28 September, 2006

1. BY THE COURT: This is an appeal against a decision of Kandakasi J in the National Court in which his Honour refused a motion to enter default judgment. The appeal raises the issue of the power of a Judge of the National Court to refuse to enter default judgment when the party against whom judgment is sought is clearly in default.

BACKGROUND

2. The event that led to these proceedings was an attempted breakout at Baisu Jail, Western Highlands, on 7 September 2001. Two remandees attempted to escape and one of them, Win Kunton, of the Yamka Pepka tribe, Dobel village, WHP, was shot dead. His dependants say that one of the warders, John Junias, who pursued the deceased, shot him even though he had surrendered.

3. On 27 February 2004 the lawyers for the deceased’s dependants, Nonggorr & Associates, filed proceedings in the National Court, known as WS No 173 of 2004.

4. The plaintiffs are:

· Agnes Kunton – first plaintiff – a wife of the deceased;

· Betty Kunton – second plaintiff – another wife of the deceased;

· Kunton Pon – third plaintiff – the deceased’s father;

· Pat, Peter and Konda Kunton, infants, by their next friend Tho Kunton – fourth plaintiff – Tho is the deceased’s brother and Pat, Peter and Konda are the deceased’s children.

5. The defendants are:

· John Junias – first defendant – the correctional officer who allegedly shot the deceased;

· The State – second defendant – it is claimed to have ownership and control of Baisu Jail and to be the employer of the first defendant.

6. The statement of claim pleads that the first defendant:

· committed the tort of negligence, resulting in the death of the deceased;

· breached the deceased’s constitutional rights (the right to life, the right to freedom from inhuman treatment and the right to the full protection of the law); and

· acted harshly, oppressively and unlawfully contrary to Section 41 of the Constitution.

7. The statement of claim also pleads that the second defendant – the State – is vicariously liable for the conduct of the first defendant.

8. Remedies sought are:

· damages;

· a declaration that the deceased’s constitutional rights were breached; and

· compensation for breach of those rights under Section 58 of the Constitution.

9. Acting for the plaintiffs, Nonggorr Lawyers served the writ and statement of claim on the second defendant in accordance with the Claims By and Against the State Act but did not serve the first defendant. The second defendant failed to give notice of its intention to defend the claim and failed to file a defence.

10. In September 2004 Nonggorr Lawyers filed and served a notice of motion and supporting affidavits, seeking entry of default judgment. This was also served only on the second defendant.

11. The motion was moved ex parte before Kandakasi J at Waigani on 13 October 2004. Mr Kongri appeared for the plaintiffs. His Honour was satisfied that the motion was properly served and that other formal requirements for entry of default judgment were satisfied but expressed concern about the implications of making the State liable without a trial:

There is proof of compliance of Section 5 [of the Claims By and Against the State Act] requirements. So that forms the basis for ground of default judgment. However, that is not the end of the matter. Non-compliance of the Rules does not mean that judgment should automatically follow. There is discretion in the court whether to not grant such an application even if it is satisfied that the Rules or the application is perfect on the consideration of the relevant rules. I note this is one of the first cases I have come to deal with, if not the court, arising out of a prison escape. Prisoner is shot. Allegations of negligence or deliberate shooting. If it is to be resolved by default it might bring about a number of implications. Matter of public policy comes into consideration as well.

In those circumstances, I decline to exercise discretion in favour of default judgment. Instead I will order the plaintiff to go to proof of its case by now ordering that this matter be progressed to listing for trial and order costs of today’s application against the defendants.

THE APPEAL

12. Three grounds of appeal are relied on. It is claimed that the primary Judge erred by:

1 unreasonably exercising his discretion, given that he acknowledged that the appellants had done everything required by law to secure default judgment;

2 taking account of irrelevant considerations, by stating that this was the first case of its kind;

3 after refusing the application for default judgment – not ordering the State to file and serve a defence before the case was put on the callover list.

APPELLANTS’ SUBMISSIONS

13. Mr Kongri acknowledged that a Judge hearing a motion for default judgment has a discretion to exercise even when all preconditions to the entry of default judgment are satisfied. However, he argued that in the present case the primary Judge had exercised that discretion unreasonably as the State was flagrantly in default. Not only was there no notice of intention to defend or defence filed by the State but there was no appearance for the State when the motion was moved.

14. As to the primary Judge’s concern about this being the first time that the dependants of a detainee killed during the course of a prison escape were suing the State,...