Frank Onga v The Independent State of Papua New Guinea (2008) N3705

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 20 August 2008
• Court: National Court
• Citation: (2008) N3705
• Docket Number: WS No. 13 of 1993
• Year: 2008
• Judgement Number: N3705

Full Title: WS No. 13 of 1993; Frank Onga v The Independent State of Papua New Guinea (2008) N3705

National Court: David, J

Judgment Delivered: 20 August 2008

N3705

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 13 OF 1993

BETWEEN:

FRANK ONGA

Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Mt Hagen: David, J

2008: 20 August

PRACTICE AND PROCEDURE – Amended Statement of Claim not served upon Defendant – breach of O.8 r.58 National Court Rules does not render proceedings void – O.1 r.8 National Court Rules applied.

PRACTICE AND PROCEDURE – Amended Statement of Claim not served upon Defendant – breach of O.8 r.58 National Court Rules - default judgment entered irregularly - application to set aside default judgment entered irregularly must be made within a reasonable time – O.1 r. 9 National Court Rules applied.

PNG cases cited:

Green & Co. Pty Ltd v. Green [1976] PNGLR 73

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

George Page Pty Ltd v. Balakau [1982] PNGLR140

Mapmakers Pty Limited v. Broken Hill Pty Co. Ltd [1987] PNGLR 78

Paul Marinda v. The State (1991) N1026

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

Sengi Laki & Ors v. The Commissioner of Police (1996) N1432

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

Brown Pinoko v. The State (1997) N1520

Thomas Paraka & Ors v. Mathew Kawa & The State (2000) N1987

Overseas cases cited:

Sneade v. Wotherton [1904] 1KB 295

Eshelby v. Federated European Bank Ltd [1932] 1 KB 254

Warner v. Sampson [1959] 1 QB 297

Mitchell v. Harris Engineering Co. Ltd [1967] 2 QB 703

Counsel:

P. Mawa, for the Plaintiff

K. Sino, for the Defendant

RULING ON MOTION

20 August, 2008

1. DAVID, J: INTRODUCTION: By an Amended Notice of Motion filed on 10 October 2003, the Defendant sought the following principal orders:-

1. That the default judgment of 22 June 1999 be set aside as being irregularly entered pursuant to O.8 r.58 of the National Court Rules.

2. The proceedings are void for want of service of the Amended Statement of Claim within a reasonable time after the amendments.

3. Alternatively, the proceedings be dismissed for the deceased Plaintiff lacking locus standi in this action.

4. Alternatively, the proceedings be dismissed for want of prosecution under O.10 rr.4 and 5 and O.4 r.36 of the National Court Rules.

5. Alternatively, the proceedings be dismissed for non disclosure of a cause of action pursuant to s.1 (2) of the Wrongs (Miscellaneous Provisions) Act, Chapter 297.

2. The Defendant only pursued the reliefs sought in paragraphs 1 and 2 of the Amended Notice of Motion.

3. The Defendant relied on the Affidavit of Kumoro Sino sworn and filed on 18 September 2003 and also the Supplementary Affidavit of Kumoro Sino sworn on 9 October 2003 and filed on 10 October 2003. The Plaintiff did not file any Affidavit in rebuttal.

4. The application was moved on the day the matter was scheduled for trial for assessment of damages.

BACKGROUND

5. The Plaintiff, by his Writ of Summons and Statement of Claim filed on 16 February 1993, claims against the Defendant loss and damage suffered or incurred by himself including exemplary damages and loss of profit as a result of alleged illegal actions of some policemen. The Defendant is sued in its vicarious capacity. The Plaintiff alleges that:-

· at the material time he was operating a tavern business called Kumbugl Tavern at his village namely, Keta in the Western Highlands Province;

· on 8 September 1991, policemen, whilst acting in the course of their employment with the Defendant and acting within the scope of their authority, conducted a raid of his village without legal or any justification at all;

· during the raid, the policemen destroyed and/or misappropriated property belonging to him valued at K20,338.90.

6. The Writ of Summons and Statement of Claim was served upon the Defendant on 9 March 1994.

7. On 9 June 1994, the Plaintiff filed his Amended Statement of Claim pursuant to O.8 r.51 of the National Court Rules amending the date of the alleged raid from “8 December 1991” to “8 September 1991”.

8. The Court actually entered judgment by default in favour of the Plaintiff and for damages to be assessed on 22 May 1999 and not on 22 June 1999 as is pleaded in the Amended Notice of Motion.

9. The Plaintiff died at about the time default judgment was entered and the Court file indicates that on 15 December 2003, it was ordered that the Plaintiff’s father Onga Rokpa be substituted as the plaintiff in lieu of his late son.

THE ISSUES

10. The major issues are:-

1. Has the Defendant made out a case to set aside the default judgment?

2. Are the proceedings void for want of service of the Amended Statement of Claim?

11. I will discuss the issues in the reverse order.

ANALYSIS OF THE ISSUES, LAW AND EVIDENCE

Are the proceedings void for want of service of the Amended Statement of Claim?

Defendant’s submissions:

12. Mr. Sino of counsel for the Defendant deposes in his Supplementary Affidavit that on 29 September 2003, he conducted a search of the Court file at the Registry which revealed, amongst other things, that there was no document filed indicating service of the Amended Statement of Claim upon the Defendant. He submitted that the proceedings are therefore void and should be struck out because:-

1. the Amended Statement of Claim was not served on the Defendant on the date the document was filed contrary to O.8 r.58 of the National Court Rules;

2. the Amended Statement of Claim was not served on the Defendant within 2 years taking O.4 r.13 of the National Court Rules as a guide.

Plaintiff’s submissions:

13. Mr. Mawa of counsel for the Plaintiff basically submitted that; the Solicitor General who had the carriage of the matter on behalf of the Defendant prior to briefing out to Paraka Lawyers should have filed an Affidavit deposing to not receiving the Amended Statement of Claim; and this was an argument that should have been raised at the time the application for default judgment was moved.

Remarks on submissions of counsel:

14. The Plaintiff has not provided any evidence to show that the Amended Statement of Claim was served upon the Defendant either on the day it was filed or anytime after that. Instead, the only evidence before the Court, which I accept, is that the Amended Statement of Claim was not served upon the Defendant at all.

15. Clearly the Plaintiff in not serving the Amended Statement of Claim on the day it was filed was contrary to O.8 r.58 of the National Court Rules. I set out below the relevant rule.

“58. Service after amendment (20/9)

Where a document has been served and is afterwards amended, the party making the amendment shall, on the day on which the amendment is made, serve on the parties on whom the document was served—

(a) if the amendment is made under Rule 56—the notice mentioned in Rule 56(1); or

(b) if the amendment is made under Rule 57—the fresh document.”

16. An amendment to a writ or pleading takes effect not from the date when the amendment is made, but from the date of the original document which it amends: Sneade v. Wotherton [1904] 1KB 295; Eshelby v. Federated European Bank Ltd [1932] 1 KB 254, Warner v. Sampson [1959] 1 QB 297 and Mitchell v. Harris Engineering Co. Ltd [1967] 2 QB 703. In Warner, Hodson, LJ said:-

“Once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried.”

17. So the argument advanced by the Defendant that because the Amended Statement of Claim was not served within 2 years thus rendering the proceedings void is misconceived.

18. According to O.1 r. 8 of the National Court Rules, non-compliance with the National Court rules will not render the proceedings void, but the effect of non-compliance is that the proceedings may be set aside, either wholly or in part, as irregular: see also Sengi Laki & Ors v. The Commissioner of Police (1996) N1432. I set out O.1 r.8 below.

“8. Non-compliance with Rules not to render proceedings void.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.”

19. Are the proceedings void for want of service of the Amended Statement of Claim? The answer is no.

Has the Defendant made out a case to set aside the default judgment?

Defendant’s submissions:

20. Mr. Sino submitted that the default judgment was irregularly entered for reasons adverted to already and therefore should be set aside.

21. He submitted that the law was settled in that Courts have set aside judgments irregularly entered as of right. He cited as authorities supporting that legal proposition the cases of Mapmakers Pty Limited v. Broken Hill Pty Co. Ltd [1987] PNGLR 78, Thomas Paraka & Ors v. Mathew Kawa & The State (2000) N1987, Paul Marinda v. The State (1991) N1026 and Brown Pinoko v. The State (1997) N1520.

Plaintiff’s submissions:

22. Mr. Mawa submitted that; this was a clear case of the Defendant doing nothing or was not interested in defending the proceedings which resulted in...