John Kunkene v Micheal Rangsu and The State (1999) N1917

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 08 September 1999
• Court: National Court
• Citation: (1999) N1917
• Year: 1999
• Judgement Number: N1917

National Court: Kirriwom J

Judgment Delivered: 8 September 1999

N1917

PAPUA NEW GUINEA

(In the National Court of Justice)

WS No. 312 of 1999

Between:

JOHN KUNKENE

(Plaintiff)

And:

MICHEAL RANGSU

(First Defendant)

And:

THE STATE

(Second Defendant)

GOROKA: KIRRIWOM J

1999: 8 September

Counsels:

Mr D. Umba for the Plaintiff

Ms H D Polume-Kiele for the Defendants

DECISION

8 September 1999

KIRRIWOM J: This is an application for default judgement to be entered against the Defendants for failing to file their Defence within time. There is no question about the notice being given by the acting Solicitor General of his intention to defend this action. This was filed on 10th May 1999. The Defendants were required to file their Defence by 13th July 1999 but they failed to do so until 3rd of August 1999. At the time this application was pursued the Defendants’ Defence was already registered with the Court.

It was pointed out to the Plaintiff’s counsel that there was already a defence on the file in the hope that he could consider the merits of the defence and decide whether he needed to pursue his application or not. Afterall a default judgement can be set aside if the Court is convinced that the Defendant has defence on the merits to warrant the case going to a full trial. Counsel chose not to take the hint and proceeded with the application.

As the Court’s jurisdiction imposed by the Rules in these applications are discretionary, I exercise my discretion against granting the relief for default judgement. I am satisfied that the Defendant’s defence has merits as it raises contributory negligence on the part of the Plaintiff.

There are ample authorities on this aspect. Thus, while the Defendants have technically failed to meet the deadline by some weeks, I don’t think applying strict technical rules would help both parties. It only exacerbates and procrastinates the delay for earlier settlement. As I do hold the view that the defence has some merits. I dismiss the Plaintiff’s application but order that the parties continue with the pleading and consequently can reach the solution.

I award no costs.

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