Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and The Engineering Management Pty Ltd t/a Engineering Division (1998) N1773

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 25 September 1998
• Court: National Court
• Citation: (1998) N1773
• Year: 1998
• Judgement Number: N1773

National Court: Injia J

Judgment Delivered: 25 September 1998

N1773

PAPUA NEW GUINEA

[In the National Court of Justice]

WS No. 371 of 1997

BETWEEN:

BALA KITIPA

-Plaintiff-

AND:

VINCENT AUALI

-Defendant-

AND:

SUPPLY & TENDERS BOARD OF WESTERN HIGHLANDS PROVINCIAL GOVERNMENT

- Second Defendant-

AND:

THE ENGINEERING MANAGEMENT PTY LTD t/a ENGINEERING DIVISION

-Third Defendant-

Mt. Hagen: Injia, J.

1998: August 14th, September 25th

Practice and procedure - Default judgments - Discretionary - Due Service of Writ and default established - Claim alleges fraud and collusion at government level - Default judgment refused - National Court Rules O 12 4 32 & 34.

Cases cited in the judgment

Kante Mininga -v- The State & 2 Ors N1458 [1996]

T. Bongere for the Plaintiff.

No appearance for the Defendants.

25th September 1998

Injia, J: This is an application under O 12 r 28 of the National Court Rules for default judgment against the First Defendant only. On the evidence before, I am satisfied that the Writ was duly served on the First Defendant. I am also satisfied that the First Defendant has failed to file a Notice of Intention to Defend the proceedings and Defence within the period stipulated by the rules. Is the plaintiff entitled to receive judgment by default in these circumstances alone? To answer this question, O 12 r 32 and O 12 r 34 are relevant. They provide:

32. General. (17/9)

(1) Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against the defendant as the plaintiff appears to be entitled to on his writ of summons.

(2) Notwithstanding Sub-rule (1), the court shall...