Danny Totamu v Small Business Development Corporation (2009) N3702

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 07 May 2009
• Citation: (2009) N3702
• Docket Number: W.S. NO. 768 OF 1998
• Court: National Court
• Year: 2009
• Judgement Number: N3702

Full Title: W.S. NO. 768 OF 1998; Danny Totamu v Small Business Development Corporation (2009) N3702

National Court: David, J

Judgment Delivered: 7 May 2009

N3702

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 768 OF 1998

BETWEEN

DANNY TOTAMU

Plaintiff

AND:

SMALL BUSINESS DEVELOPMENT CORPORATION

Defendant

Mt Hagen : David, J

2009 : 27 March & 7 May

PRACTICE & PROCEDURE – application to set aside default judgment – first application dismissed for want of prosecution- an order dismissing an action for want of prosecution made ex-parte is not a decision on the merits – dismissal does not operate as res judicata – second application in order - O.12 r.7 (1) National Court Rules.

PRACTICE & PROCEDURE – application to set aside default judgment – O.12 r.35 National Court Rules - default judgment regularly entered – exercise of discretion – applicable principles – defence on the merits shown – no reasonable explanation given why judgment was allowed to go by default - application not made promptly and within a reasonable time – application refused.

Cases cited:

Papua New Guinea Cases

Green & Co. Pty Ltd v. Green [1976] PNGLR73

The Government of PNG & Davis v. Barker [1977] PNGLR 386

George Page Pty Limited -v- Malipu Bus Balakau [1982] PNGLR 140

Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145

Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Leo Hannet v. ANZ Banking Group (PNG) Ltd (1996) SC505

Leo Duque v. Avia Andrew Paru [1997] PNGLR 378

Andrew Baing v. PNG National Stevedores Pty Limited (2000) SC627

Christopher Smith v. Ruma Construction Ltd (2002) SC695

Lihir Civil Construction Limited v. New Ireland Provincial Government (2005) N2914

Kerry Lerro v. Philip Stagg (2006) N3050

Matthew Kamana Tuntafa v. John Kayapo (2008) N3277

Overseas cases cited:

Evans v. Bartlam [1937] AC 473

Newmont v. Laverton Nickel NL (No.2) [1981] 1 NSWLR 221

Andrew v. Baradom Holdings Pty Ltd [1995] 36 NSWLR 700

Bailey v. Bailey [1983] 3 All ER 495

Rosing v. Ben Shemesh [1960] VR 173

North v. Shielaw (1897) 13 WN (NSW) 163

Term Sales Pty Ltd v. Joseph (1949) 67 WN (NSW) 44

Counsel:

K. J. Peri, for the Plaintiff

C. A. Kuira, for the Defendant

RULING ON MOTION

7 May, 2009

1. DAVID, J: INTRODUCTION: The Defendant has applied on notice to have the default judgment granted ex-parte in favour of the Plaintiff on 6th November 1998 and entered on 8th November 1998 set aside pursuant to O.12 r.35 of the National Court Rules and to allow the Defendant to defend the proceedings.

2. In support of its application, the Defendant relies on the following Affidavits:-

1. Affidavit of Steven Maken sworn on 2nd October 2003 and filed on 21st October 2003;

2. Affidavit of Justin Issack sworn on 2nd October 2003 and filed on 21st October 2003.

3. Affidavit of Diri Kobla sworn on 25th September 2008 and filed on 14th October 2008;

3. The Plaintiff contests the application. He has not filed any answering Affidavit.

4. Mr. Peri of counsel for the Plaintiff has objected to the use of the Affidavits of Messrs Maken and Issack because; they were filed in support of the previous application to set aside the default judgment which was filed on 21st October 2003 (the first application) and dismissed for want of prosecution on 13th June 2008; and they have not been incorporated into the only Affidavit filed in support of the present application. There is in fact a reference by Mr. Kobla at paragraph 7 of his Affidavit to the Affidavit of Mr. Maken relying on the latter’s Affidavit to explain why default judgment was allowed to be entered. So what Mr. Peri says in the latter part of his objection is not totally correct. Nonetheless, I think, in exercising the judicial authority of the people vested in the courts under s.158 of the Constitution and the mandate they are given in interpreting the law to give paramount consideration to the dispensation of justice and the fact that the Affidavits concerned were never used in the first application, I will reject the objection, but allow their use, consider the evidence contained in them and give appropriate weight where it is due.

5. At the hearing, Mr. Kuira of counsel for the Defendant handed up his client’s written submissions for my assistance for which I am grateful. I have perused and considered those submissions together with his oral submissions as well as those advanced by Mr. Peri.

BRIEF BACKGROUND AND FACTS

Plaintiff’s allegations

6. The Plaintiff was the owner of a PMV, a grey 15 seater Toyota Hiace bus bearing registration number P435R (the Plaintiff’s motor vehicle) which operated along the Okuk Highway between Wabag and Mt. Hagen and as far as Madang and Lae. On or about 11th November 1994 along the Wapenamanda Station Road, the Plaintiff’s motor vehicle was involved in an accident with a motor vehicle owned by the Defendant which is described as a green Toyota Hilux bearing registration number HAB 497 (the Defendant’s motor vehicle). The Defendant’s motor vehicle was driven by one Maima Kumulkop, a servant or agent of the Defendant when it bumped into the front right side of the Plaintiff’s motor vehicle. The accident was caused by Maima Kumulkop who drove the Defendant’s motor vehicle without a valid driving licence and without due care and attention. Maima Kumulkop was convicted on 15 December 1997 for driving without due care and attention and fined K100.00, in default three (3) months imprisonment.

7. The Plaintiff claims that; the Defendant is vicariously liable for the actions of Maima Kumulkop; and he is therefore entitled to claim from the Defendant, damages for loss of earnings, costs for the repair of his motor vehicle, interest and costs.

Chronology of events

8. It will be of much assistance to set out the chronology of events from the commencement of these proceedings to the filing of the present application. To do that, apart from the evidence before the Court, I have taken judicial notice of a number of documents filed in the Court file which are also referred to below as they relate to events that are really not in dispute.

1. On 18th August 1998, the Plaintiff’s Writ of Summons and Statement of Claim dated 17th August 1998 (the writ) was filed.

2. On 16th November 1998 at about 11:28 am a Barry Kiway served the writ on the Defendant by leaving a sealed copy at the Defendant’s Office which is situated on Allotment 19 Section 53, Ume Street, Gordon: see Affidavit of Service of Barry Kiway sworn on 1st December 1998 and filed on 7th December 1998.

3. On 11th May 1999, the Plaintiff applied for default judgment to be entered against the Defendant because of the Defendant’s failure to file a Notice of Intention to Defend and Defence: see Notice of Motion filed on 11th May 1999 and the Affidavit in Support of Notice of Motion of Koeya J. Peri sworn on 10th May 1999 and filed on 11th May 1999.

4. Default Judgment was granted against the Defendant on 6th November 1999 and entered on 8th November 1999 for damages to be assessed and leave was also granted to set the matter down for trial for assessment of damages without the consent of the Defendant: see Order filed on 8th November 1999.

5. On 16th February 2000, a Notice to Set Down for Trial dated 2nd February 2000 for assessment of damages was filed.

6. On 31st July 2003, Paraka Lawyers filed a Notice of Appearance dated 24th July 2003 giving notice of their appointment as lawyers for the Defendant.

7. On 21st October 2003, the Defendant through Paraka Lawyers filed a Notice of Motion dated 10th October 2003 to set aside the default judgment.

8. On 11th May 2006, Paraka Lawyers filed a Notice of Ceasing to Act giving notice that they had ceased to act as lawyers for the Defendant as of the time of filing.

9. On 13th June 2008, the application to set aside the default judgment was dismissed for want of prosecution: see Order filed on 17th September 2008.

10. On 26th August 2008, Ketan Lawyers filed a Notice of Change of Lawyers giving notice that the Defendant had changed lawyers and they were acting for the Defendant as of the date of filing.

11. On 14th October 2008, the Defendant through Ketan Lawyers filed a Notice of Motion dated 25th September 2008 to set aside the default judgment.

THE ISSUES

9. The major issues are:-

· Whether the Court should entertain the application given this is the Defendant’s second application which was filed after the first application was dismissed for want of prosecution ex-parte.

· If the answer to the first issue is in the affirmative, whether the default judgment should be set aside.

ANALYSIS OF THE ISSUES, LAW AND EVIDENCE

Whether the Court should entertain the application given this is the Defendant’s second application which was filed after the first application was dismissed for want of prosecution ex-parte.

10. Mr. Peri submitted that because the first application was dismissed for want of prosecution as opposed to it being struck out, the Defendant could not return to the same forum to apply for the same relief the second time. To this, Mr. Kuira contended that whether the first application was struck out or dismissed for want of prosecution was irrelevant as what was significant was that the dismissal was made ex-parte and not on the merits.

11. An order dismissing an...