Kerenge Kaupa alias Kerenga Kun v Independent State of Papua New Guinea (2004) N2491

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 07 January 2004
• Citation: (2004) N2491
• Court: National Court
• Year: 2004
• Judgement Number: N2491

Full Title: Kerenge Kaupa alias Kerenga Kun v Independent State of Papua New Guinea (2004) N2491

National Court: Davani J

Judgment Delivered: 7 January 2004

N2491

IN THE NATIONAL COURT ]

OF JUSTICE AT MT HAGEN ]

PAPUA NEW GUINEA ]

WS 979 OF 1999

BETWEEN:

KERENGE KAUPA alias

KERENGA KUN

Plaintiff

AND:

INDEPENDENT STATE OF

PAPUA NEW GUINEA

Defendant

Mt. Hagen: Davani .J

2003: 18 December

2004: 7 January

Counsel:

M. Konge for the Plaintiff/Respondent

J. Kiwai for the Defendant/Applicant

Practice and Procedure – Application to set aside judgment irregularly entered – should be set aside as of right – application under O. 12 R. 35 of the National Court Rules.

Practice and Procedure – Judgment irregularly entered – application must be made within a reasonable time – affidavit in support must depose to reasons why judgment allowed to be entered by default – who deposes the affidavit in support.

O. 1 R. 9 of the National Court Rules.

Practice and Procedure – Judgment irregularly entered – will not be set aside if party took fresh step with knowledge of irregularity.

O. 1 R. 9 of the National Court Rules.

Cases cited:

•Anlaby v Praetorious (1888) 20 QBD 764

•Bank South Pacific Limited v. Spencer [1989] PNGLR 239

•Leo Hannet and Elizabeth Hannet v. ANZ Banking Group (PNG) Ltd SC 505 per Kapi DCJ, Los and Salika JJ dated 16.8.96

RULING

(Application to Set Aside Default Judgment)

7 January 2004

DAVANI .J: The Defendant/Applicant (‘Applicant’) moves by Notice of Motion filed by Paraka Lawyers on 3.11.03 seeking to set aside default judgment obtained by the Plaintiff on 13.12.99 as being irregularly entered, such application being moved pursuant to O. 12 R. 35 of the National Court Rules (‘NCR’). This application is supported by the affidavit of Luke Vava Jnr sworn on 23.10.03 and filed in this court on 3.11.03.

O.12 R. 35 of the NCR reads;

“35 Setting aside judgment

The Court may, on such terms as it thinks just, set aside or vary a judgment entered in pursuance of this Division.”

The Plaintiff/Respondent (‘Plaintiff’) opposes the application.

The Application

The Applicant submits that Default judgment was irregularly entered because the time period within which it was to have filed its Notice of intention to Defend had not yet expired when the Plaintiff applied for Default judgment which was granted.

It is necessary that I set out a chronology of the pleadings filed to then appreciate the Applicants submissions. These are;

1. The Writ of Summons and Statement of Claim was filed on 9.9.99 (‘Summons’);

2. Personal service of the summons was effected on the personal secretary to the Solicitor-General Kisolel Kiapin on 11.11.99;

3. On 13.12.99, the Plaintiffs lawyer filed application for Default Judgment, for failure to file Notice of intention to Defend;

4. On 13.12.99, the court heard the application for Default judgment, awarded judgment and which was entered on 14.12.99.

The Applicants submits that after the Office of the Solicitor-General was served with the Summons on 11.11.99, that it had 60 to 90 days to serve its Notice of intention to Defend. The Applicant submits this relying on s. 9 (a) (i) (ii) of the Claims By and Against the State Act No. 52 of 1996 (‘Claims Act’). This section reads;

“9. FILING OF DEFENCE BY THIS STATE

Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear in response to a summons on complaint (as the case may be) shall be –

(a) in a claim commenced by writ in the National Court –

(i) where the statement of claim is endorsed on the writ – before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or

(ii) where the statement of claim is not endorsed on the writ – before the expiry of 60 days from the date of service of the statement of claim or

…

or such further time as the court before which the action is instituted, upon sufficient cause being shown, allows.”

(my stress)

The State submits the time period of 60 to 90 days within which to file and serve Notice of Intention to Defend would have expired on 24.3.00, excluding the court vacation period which would run from 20.12.99 to 31.1.00. It submits the Plaintiff should not have applied for default judgment at the expiration of the 30 day period because the Defendant/Applicant still had time within which to file.

The Plaintiff however submits that the summons carries a notice that the prescribed Notice of intention to Defend must be received in the National Court Registry within 30 days after service of the summons upon the Defendant. In submitting that, the Plaintiff relies on O. 12 R. 25 (a) of the NCR which states;

“25 Default (17/2)

A defendant shall be in default for the purposes of this Division –

(a) where the originating process bears a note under Rule 9 of Order 4, and the time for him to comply has expired but he has not given the notice;

…”

However s. 9 of the Claims Act is specific in that it states in no uncertain terms that “Notwithstanding anything in any other law…”. That means O. 12 R. 25 (a) does not apply. The Claims Act prevails.

The Claims Act overrides O. 12 R. 25 (a) and in this case that meant the Applicant still had a further 30 days to file its Notice of intention to Defend. Applicants counsel referred me to several authorities, one of which was Bank South Pacific Limited v. Spencer [1989] PNGLR 239 where a principle of law in applications to set aside irregularly entered judgments was set. In that case, the court held;

“there is a strong distinction between setting aside a judgment for irregularity, in which case the court has no discretion to refuse to set it aside, and setting it aside where the judgment, though regular, has been obtained through some slip or error on the part of the Defendant, in which case the court has a discretion to impose terms as a condition of granting the defendant relief.”

I find the court erred when it entered judgment before the expiration of the mandatory 90 days as provided in s. 9 of the Claims Act which means the Default Judgment is irregular and should be set aside, as of right.

However, O. 1 R. 9 of the NCR qualifies the right to set aside an irregularly entered judgment. O. 1 R. 8 and 9 read;

“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 upon such terms, as the Court thinks fit.”

“9 Application to set aside for irregularity

An application to set...