John Kul v The Independent State of Papua New Guinea (2010) N3898

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 February 2010
• Court: National Court
• Citation: (2010) N3898
• Docket Number: WS NO 978 OF 1999
• Year: 2010
• Judgement Number: N3898

Full Title: WS NO 978 OF 1999; John Kul v The Independent State of Papua New Guinea (2010) N3898

National Court: Makail, J

Judgment Delivered: 22 February 2010

N3898

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 978 OF 1999

JOHN KUL

Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Mount Hagen: Makail, J

2008: 7th March &

2010: 22nd February

PRACTICE & PROCEDURE - Application for judgment - Admissions in pleadings - Admissions in defence - Admissions in affidavit - Whether judgment should be entered - Out of court settlement negotiations - Agreement on quantum of damages - Deed of settlement - Consent order - Evidence of - Lack of - Power to enter judgment - Grounds of - National Court Rules - Order 12, rule 1, Order 5, rule 28 & Order 9, rule 30.

CLAIMS AGAINST THE STATE - Authority of Solicitor General to settle claims out of court - Agreement - Evidence of - Lack of - Written submissions of lawyer in Solicitor General’s office on quantum not binding - Lack of authority of Solicitor General - Attorney-General Act, 1989 - Section 13.

Cases cited:

The State -v- Zachary Gelu & Manoburn Earthmoving Limited (2003) SC716

Polem Enterprises Limited -v- Attorney General of Papua New Guinea & Ors (2008) SC911

Counsel:

Mr P Kopunye, for the Plaintiff

Mr G Odu, for the Defendant

RULING

22nd February, 2010

1. MAKAIL, J: This is an application for judgment in the sum of K260,000.00 to be entered against the defendants pursuant to the plaintiff’s notice of motion filed on 05th March 2008. The substantive action arises from an alleged negligent conduct of one Constable David Takpe of Minj Police Station where it is alleged that, on 11th December 1998, Constable David Takpe negligently drove a State owned motor vehicle bearing, registration number ZGR 340 and crashed into the plaintiff’s Toyota Hiace Bus (“bus”) on the road towards Banz town market. The alleged accident was referred to Minj Police Station and Constable David Takpe was arrested, charged and found guilty of driving without due care and attention by the Minj District Court on 06th July 1999.

2. The plaintiff makes the application pursuant to Order 12, rule 1, Order 5, rule 28 and Order 9, rule 30 of the National Court Rules. In support of the application, he relies on following affidavits:

1. Affidavit of Peter Kopunye sworn on 17th October 2007 and filed on 22nd October 2007;

2. Affidavit of the plaintiff sworn on 4th July 2007 and filed on 5th July 2007; and

3. Affidavit in support of Peter Kopunye sworn on 12th December 2007 and filed on 13th December 2007.

3. The defendant opposes the application and relies on the affidavit of Constable David Takpe sworn on 10th December 2003 and filed on 3rd May 2004.

4. Mr Kopunye of counsel for the plaintiff submits that from these affidavits and defence, there is overwhelming evidence of admission of liability by the defendant and judgment should be entered against it. He further submits that there is evidence that the defendant admitted that Constable David Takpe was negligent when he drove the motor vehicle and crashed into the plaintiff’s bus. Further, Constable David Takpe was convicted by the Minj District Court for driving without due care and attention on 6th July 1999. The conviction confirms the admissions made by the defendant in its defence filed on 16th December 1999. All these considerations make this case ripe for judgment now than later as to refuse the application would further delay the plaintiff’s right to an early judgment, especially where the case has dragged on for almost 11 years since it was commenced on 09th September 1999 and gross injustice would occur.

5. For these reasons, Mr Kopunye submits that this Court has power to enter judgment based on admissions of parties pursuant to Order 12, rule 1, Order 5, rule 28 and Order 9, rule 30 of the National Court Rules. If the Court enters judgment against the defendant, it would settle liability and the next issue would be damages. How much should be awarded in terms of damages to the plaintiff for the loss suffered? He submits that this case is peculiar as it would not require a separate date for trial on assessment of damages where evidence would be called to establish the damages of the plaintiff. This is because the parties have successfully negotiated quantum of damages out of Court. All that is required now is for the Court to endorse the agreement of the parties in a judgment pursuant to Order 12, rule 1, Order 5, rule 28 & Order 9, rule 30 of the National Court Rules.

6. Mr Kopunye’s submission is very persuasive, I must admit. It is also tempting at first sight as when it is considered in the light of the history of the case, there would be no hesitation for the Court to enter judgment on liability and also on damages. Here is a case that has been outstanding for a very long time and parties have decided to settle their dispute by agreeing to settle it out of Court. But when the entire case is considered in the light of the law, another side of the argument appears and creates some doubts as to the propriety of the application.

7. First is the Court’s power to enter judgment on admissions. There is no doubt in my mind that the Court has power to enter judgment based on admissions and that power is found in Order 9, rule 30(1) of the National Court Rules which states:

“30 Judgment on admissions. (18/3)

(1) Where admissions are made by a party, whether by his pleadings or otherwise, the Court may, on application of any party, direct the entry of any judgment or make any order to which the applicant is entitled in the admission.

(2) …………….”

8. On what grounds may the Court invoke its power under Order 9, rule 30(1) to enter judgment based on admissions? First, judgment may be entered against a party in cases where admissions are made in the pleadings whether in the statement of claim, defence or cross claim and secondly, in other circumstances. The use of the word “otherwise” empowers the Court to also enter judgment in other circumstances where admissions are made like for example where admissions are made in affidavits of a party’s witness or witnesses. In the present case, the plaintiff claims that the defendant made admissions in its pleadings and affidavits hence, judgment on liability should be entered against it on both grounds.

9. Should the Court enter judgment against the defendant based on these two grounds under Order 9, rule 30(1)? First, upon review of the pleadings in the defendant’s defence, I am not satisfied that this is a case where judgment on liability should be entered against the defendant. Whilst the defendant admits at paragraphs 6(a)-6(c) of the defence that Constable David Takpe was the driver of the motor vehicle involved in the accident and that there was a motor vehicle accident, it did not admit that it was responsible for the accident. That is, it did not plead that Constable David Takpe drove without due care and attention when he crashed the motor vehicle into the plaintiff’s bus on that day. So I am unable to find any admission of fault in the pleadings, except admissions in relation to Constable David Takpe been the driver of the motor vehicle and the motor vehicle accident itself.

10. In relation to admissions in the evidence of the defendant, a review of the affidavit of David Takpe sworn on 10th December 2003 and filed on 3rd March 2004 neither show the defendant’s admission of liability nor fault. On the contrary, it is apparent that Constable David Takpe as the driver of the motor vehicle denied that he drove the motor vehicle negligently or was at fault. This...