Mapmakers Pty Ltd v Broken Hill Proprietary Company Ltd [1987] PNGLR 78

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ
• Judgment Date: 12 May 1987
• Court: National Court
• Citation: [1987] PNGLR 78
• Year: 1987
• Judgement Number: N588

Full Title: Mapmakers Pty Ltd v Broken Hill Proprietary Company Ltd [1987] PNGLR 78

National Court: Kidu CJ

Judgment Delivered: 12 May 1987

1 Practice and procedure—Application to set aside default judgment

PRACTICE—Application to set aside judgment by default—Practice of forewarning opposing lawyers of intention to enter judgment ought to be adopted—Failure to adopt practice not grounds for setting aside judgment—National Court Rules, O12, r8.

Whilst it is a desirable practice that should be adopted, that lawyers intending to have a judgment entered in default of pleadings, should forewarn the lawyer on the record for the other party of his intentions, in the absence of Rules of Court or other statutory provisions in relation to such a practice, a judgment by default regularly entered cannot be set aside ex debito justitiae for failure to adopt such practice.

George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140, Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73, The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386 referred to

Notice of Motion

This was an application on notice seeking to set aside a judgment entered in default of pleadings.

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Kidu CJ: This is an application under O12, r8 of the National Court Rules to set aside a default judgment entered on 26 March 1987.

BACKGROUND

On 3 November 1986 the respondent filed a writ of summons. As the applicant is an overseas company (Australia) the respondent applied for and obtained, on 12 November 1986, leave to serve the applicant with a notice in lieu of the writ of summons outside Papua New Guinea. A sealed copy of this notice in lieu of the writ was forwarded by registered mail to the applicant on 3 December 1986. The applicant was given 45 days from the receipt of the notice to file a notice of intention to defend.

The applicant's notice of intention to defend was filed by its lawyers (Beresford Love Francis & Co) on 23 December 1986.

Unfortunately, for the applicant, no defence was subsequently filed as required by O8, r4 of the National Court Rules. The reason for this appears in Mr Goodman's affidavit dated 15 April 1987. One of his colleagues, a Mr Bolam, has filed the notice of intention to defend. Mr Goodman was then on recreation leave and knew nothing about the matter. It appears that after the notice of intention to defend was filed the case was allocated to Mr Goodman. But when he returned from leave he was not informed of the matter. And because of this time ran against his...