Lina Kewakali v The Independent State of Papua New Guinea (2011) SC1091

• Jurisdiction: Papua New Guinea
• Judge: Davani, Kariko & Sawong JJ
• Judgment Date: 11 March 2011
• Docket Number: SCA N0. 43 0F 2009
• Court: Supreme Court
• Judgement Number: SC1091

Full Title: SCA N0. 43 0F 2009; Lina Kewakali v The Independent State of Papua New Guinea (2011) SC1091

Supreme Court: Davani, Kariko & Sawong JJ

Judgment Delivered: 11 March 2011

SC1091

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA N0. 43 0F 2009

Between:

LINA KEWAKALI

Appellant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Davani, Kariko & Sawong JJ

2011: 28 February, 11 March

APPEAL – appeal against dismissal of application for default judgement – exercise of discretion whether or not to grant application – considerations in exercising discretion – delay and inaction may amount to abuse of process - tortfeasors must be named as parties - court may make orders necessary to progress proceedings.

Facts:

The Appellant filed a suit in the National Court claiming damages for deprivation of her liberty and personal injuries caused by policemen were named in the Statement of Claim but were not included as defendants. This appeal is against a decision of the National Court refusing an application by the Appellant for default judgement.

Held:

(1) The law is well-settled that an appellate court should be slow to interfere with the exercise of a discretionary power by the lower court unless the appellate Court is satisfied that the court below:

(a) acted upon a wrong principle, or

(b) gave weight to extraneous or irrelevant matters or

(c) failed to take into account relevant considerations, or

(d) made a mistake as to the facts,

and even where there is no identifiable error, the appellate court can infer such an error if the resulting judgment is “unreasonable or plainly unjust”. Bean v Bean [1980] PNGLR 307; Curtain Brothers (PNG) Ltd v UPNG (2005) SC78; and Telikom PNG Limited v ICCC (2008) SC 906 followed.

(2) Entry of default judgement is not a matter of right even where the preconditions are satisfied, as the decision whether or not to order default judgement remains a discretionary matter for the court. Agnes Kunton & Ors v John Junias & Ors (2006) SC929; Lambu v Torato (2008) SC953 followed.

(3) The inordinate delay in filing application for default judgement and the filing of duplicate writs may amount to an abuse of process justifying the refusal to enter default judgement. Tiaga Bomson v Kerry Hart (2003) N2428 considered and applied.

(4) Where vicarious liability is claimed, the plaintiff must name the servant or agent or alleged tortfeasor as defendant and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant. Kuk Kuli v. The State (2004) N2592; Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492 considered.

(5) If a plaintiff’s cause of action or his entitlement to sue depends on a statute, he must plead all facts necessary to bring him within that statute. Sear v. Lawson (1881) 16 ch. D. 121; Read v. Brown (1988) 22 Q.B.D 128 applied.

(6) The court has inherent powers to take firm control of the proceedings to ensure that the business of the court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case, and this includes making necessary orders to progress a case. Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 applied.

(7) There being no errors by the trial judge, the appeal is dismissed.

Cases cited:

Papua New Guinea cases

Bean v Bean [1980] PNGLR 307

The Independent State of Papua New Guinea v. David Wari Kofowei and Ors [1987] PNGLR5

Kante Mininga v The State (1996) N1458

Abel Tomba v. The Independent State of Papua New Guinea (1997) SC 518

Bala Kitpa v. Vincent Auali (1998) N1773

Anton Kaluni v. Aiyale Warole (2001) N2114

Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085

Tiaga Bomson v Kerry Hart (2003) N2428

Mali Pyali v Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492

Puk Num v The Independent State of Papua New Guinea (Unreported Judgment of Salika, J delivered on 12th September 2003).

Kuk Kuli v The State (2004) N259

Beecroft No. 51 Ltd v. Neville Seeto (2004) N2561

Urban Giru v. Luke Muta (2005) N2899

Curtain Brothers (PNG) Ltd v UPNG (2005) SC78

Agnes Kunton & Ors v John Junias & Ors (2006) SC929

Telikom PNG Limited v ICCC (2008) SC 906

Lambu v Torato (2008) SC953

Overseas cases

Read v. Brown (1988) 22 Q.B.D. 128

Sear v. Lawson (1881) 16 ch. D. 12

Counsel:

Mr J Talopa, for the appellant

Mrs R Gelu, for the respondent

DECISION

11 March, 2011

1. BY THE COURT: This appeal is against a decision of the National Court refusing an application by the Appellant for default judgement in the proceeding WS 1524 of 2006 (“WS 1524”).

Background

2. The Appellant filed WS 1524 on 19 October 2006 claiming damages against the Respondent for deprivation of her liberty and personal injuries she suffered as a result of the wrongful imprisonment and rape committed upon her on 23 January 2001 and 24 February 2001 (which apparently should read 24 January 2001) at Baiyer River, Western Highlands Province.

3. These acts were alleged to have been perpetrated by two auxiliary policemen then based at the Baiyer River District Rural Police Station.

4. The Appellant further alleged that the two policemen were acting in the normal course of their duties and the Respondent is therefore vicariously liable for the wrongs committed by the policemen as servants and agents of the State by virtue of the Wrongs (Miscellaneous Provisions) Act.

5. Although, the Respondent was properly served the Writ of Summons, no Notice of Intention to Defend or a Defence was filed by the State.

6. This proceeding was still pending when the Appellant filed another suit WS 755 of 2007 on 5 May 2007 for the same matter which named the same parties, and contained the same statement of claim and relief sought (“WS 755”).

7. In response to being served WS 755, the Respondent filed a Notice of Intention to Defend on 9 July 2007 and a Defence on 24 July 2007 which included a defence that the claim by the Appellant was statute-barred.

8. By letter dated 23 October 2008, the Appellant advised the State that it had wrongly filed WS 755 when WS 1524 was still pending. The Appellant also informed the State that it intended to withdraw WS 755 and forewarned that she would consider seeking default judgement if a Notice of Intention to Defend and a Defence in respect of WS 1524 were not filed.

9. On 4 March 2009, leave was granted for WS 755 to be withdrawn.

10. By letter of 17 March 2009, the Appellant advised of the withdrawal of WS 755 and again forewarned of her intention to apply for default judgement in WS 1524.

11. The State failed to file the documents and the Appellant filed her application for default judgement on 31 March 2009.

12. This application came on for hearing before His Honour Gavara-Nanu J on 15 April 2009 and was declined by His Honour, who also ordered that the State file its defence within 14 days. In coming to the orders, His Honour held:

“There appears to be an abuse of process in these proceedings. Also the statement of claim does reveal that there are other parties who should be named in the proceedings and have not been named.”

13. It is this decision that gives rise to the present appeal.

Grounds of appeal

14. The grounds of appeal set out in the Notice of Appeal are:

Ground 4.1

The trial judge erred in law and in fact in refusing the application for default judgment. Factually, there was overwhelming evidence of default by the Defendant/Respondent, despite numerous adequate forewarnings required by law. In the circumstances, the trial judge was required by law to exercise discretion in favour of the Plaintiff/Appellant by entering judgment in her favour. In refusing to do so, the appellants the trial judge erred both in law and in fact.

Ground 4.2

The trial judge in the exercise of discretion erred in law and in fact in refusing the application for default judgment, by taking into account the consideration that the policemen responsible were not individually named as parties/co-defendant to the proceedings.

Ground 4.3

The trial judge in the exercise of discretion erred in law and in fact in, making orders granting leave to the Defendant to file its Defence out of time, when there was no formal application before the judge, either oral or in writing, supported by affidavit evidence seeking such orders, and granting such orders the trial judge denied the Plaintiff procedural fairness and natural justice.

15. The grounds of appeal may be summarised as follows:

(a) That the trial judge erred in dismissing the application for default judgement as the respondent had defaulted in filing its defence and the appellant had met the necessary requirements to be granted default judgement.

(b) That the trial judge erred in dismissing the application for default judgement on the basis that the alleged policemen tortfeasors were not named...