Eliakim Laki on Behalf of Himself and 167 Other Former Block Holders of Kavugara Oil Palm Block, West New Britain Province v Maurice Alaluku, Secretary Department of Lands, Utula Samana, Secretary Department of Agriculture and Livestock and Independent State of Papua New Guinea (2000) N2001

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 10 November 2000
• Court: National Court
• Citation: [2000] PNGLR 392
• Year: 2000
• Judgement Number: N2001

Full Title: Eliakim Laki on Behalf of Himself and 167 Other Former Block Holders of Kavugara Oil Palm Block, West New Britain Province v Maurice Alaluku, Secretary Department of Lands, Utula Samana, Secretary Department of Agriculture and Livestock and Independent State of Papua New Guinea (2000) N2001

National Court: Sevua J

Judgment Delivered: 10 November 2000

N2001

PAPUA NEW GUINEA

[National Court of Justice]

WS 801 of 1998

BETWEEN

ELIAKIM LAKI on behalf of himself and

167 other former Block Holders of Kavugara Oil Palm Block,

West New Britain Province

Plaintiffs

AND

MAURICE ALALUKU, Secretary

Department of Lands

First Defendant

AND

UTULA SAMANA, Secretary

Department of Agriculture and Livestock

Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Sevua, J

16th August & 10th November, 2000

Practice & Procedure — Default Judgment — Defence filed out of time — No leave granted — Order 12 Rule 25 (1) National Court Rules.

Pleadings — Insufficient and general allegations — Insufficient particulars against each defendant — 168 plaintiffs but no allegation by each plaintiff — No cause of action — Order 8 Rule 29 (1) National Court Rules.

Case cited and applied:

Luke Tai v. Australia & New Zealand Banking Group (PNG) Limited, Unreported, N.1979, 17th July, 2000 (Kapi, DCJ).

P. Parkop for Plaintiffs

D. Lambu for Defendants

SEVUA J : There were two applications that were heard on 16th August, this year.

The first application was by the plaintiffs, and it was for default judgment on the basis that the defendants did not file a defence within the 60 days period stipulated in the Claims By and Against the State Act 1996. The second application by the defendants, was for the proceedings to be dismissed on the grounds that the plaintiffs failed to give notice pursuant to s.5 of the Claims By and Against the State Act, and secondly, the statement of claim did not disclose a cause of action against each defendant.

I will deal with the plaintiffs' application first. The plaintiffs filed their writ of summons on 26th August, 1998. No affidavit of service was filed until 12th April this year after the application for default judgment was filed on 2nd March, 2000. An amended writ or schedule to the writ of summons was filed on 24th September, 1999, but again there was no affidavit of service until 12th April, 2000. But then, the service of the amended writ was effected on 23rd September, 1999, the day before it was actually filed in Court on 24th September. The affidavit of Seri Mitige sworn on 12th April, 2000, deposes to that fact in paragraph 2, but the plaintiffs have not clarified that anomaly, so it seems that the amended writ was served before it was filed. The date of filing a defence would therefore run from 24th September, 1999.

The defendants filed a defence on 8th April, 2000, some seven months and fourteen days outside the 60 days limit stipulated by s.9 (a) (i) of the Claims By and Against the State Act. No leave was sought and therefore the defendants filed their defence without leave. The defendants have therefore not filed a defence in accordance with the Rules thus they are in default.

I concur with the Deputy Chief Justice's reasons in Luke Tai v. Australia & New Zealand Banking Group (PNG) Ltd, Unreported, N.1979, 17th July, 2000, and apply the principle in this case. The defendants have defaulted and there is therefore no...