Muriso Pokia v Mendwan Yallon and Dorothy Nanai and Senior Constable Job Eremugo and The Independent State of Papua New Guinea (2014) SC1336

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Cannings J, Kariko J
• Judgment Date: 02 May 2014
• Court: Supreme Court
• Citation: (2014) SC1336
• Docket Number: SCA NO 105 0F 2013
• Year: 2014
• Judgement Number: SC1336

Full Title: SCA NO 105 0F 2013; Muriso Pokia v Mendwan Yallon and Dorothy Nanai and Senior Constable Job Eremugo and The Independent State of Papua New Guinea (2014) SC1336

Supreme Court: Salika DCJ, Cannings J, Kariko J

Judgment Delivered: 2 May 2014

SC1336

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 105 0F 2013

MURISO POKIA

Appellant

V

MENDWAN YALLON

First Respondent

DOROTHY NANAI

Second Respondent

SENIOR CONSTABLE JOB EREMUGO

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Salika DCJ, Cannings J, Kariko J

2014: 28 April, 2 May

PRACTICE AND PROCEDURE – setting aside by National Court of default judgment on ground of defence on merits – dismissal of proceedings by National Court on ground of abuse of process – circumstances in which default judgment may be set aside – whether there was a multiplicity of proceedings, warranting a finding of abuse of process.

The appellant appealed against an order of the National Court, which set aside two default judgments entered in his favour in the same proceedings and dismissed the entire proceedings for abuse of process. He argued that the National Court should have dismissed the motion by which the respondents sought and obtained the order being appealed against as: (1) the notice of motion was incompetent; (2) the requirements for setting aside default judgment were not complied with; (3) he was denied natural justice by the National Court; and (4) the finding of abuse of process was based on the primary Judge’s misconception that he had commenced two proceedings concerning the same cause of action.

Held:

(1) The notice of motion was non-compliant with the National Court Rules, Order 4, Rule 49(8) as it did not contain a sufficient reference to the Court’s jurisdiction to grant the orders sought. It referred to irrelevant laws. It should have referred to Order 12, Rule 8 and/or Order 12, Rule 35 of the National Court Rules. However it lay within the discretion of the primary Judge to nevertheless hear and determine the motion. No error of law was involved in the primary Judge deciding to hear and determine the motion.

(2) If a default judgment is so irregularly entered as to be a nullity, a defendant is entitled to have it set aside as of right. However, if the default judgment cannot be regarded as a nullity, and whether or not there was some irregularity in the entry of judgment (eg that a rule of court was not complied with), the defendant must prove (by evidence of the defendant (not of his lawyer) that: (a) the application to set aside the default judgment was made within a reasonable time of the judgment becoming known to the defendant; (b) there is a good explanation for the judgment being allowed to be entered by default; (c) there is a defence on the merits. Here the primary Judge erred in law by not insisting on compliance with those requirements.

(3) The National Court is obliged to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are the duty to act fairly and in principle to be seen to act fairly. The appellant failed to convince the Supreme Court that those requirements were breached.

(4) An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Here the appellant had prior to commencing the proceedings that are the subject of appeal, commenced similar, related proceedings. But the causes of action – defamation, negligence and unlawful deprivation of his children – accrued on different dates. The primary Judge erred in law in regarding the appellant as being guilty of duplicating proceedings. The proceedings were dismissed in error.

(5) The appeal was substantially upheld and the order setting aside the two default judgments and dismissing the National Court proceedings was quashed and the National Court proceedings were reinstated and remitted to the National Court for directions.

Cases cited

The following cases are cited in the judgment:

Anderson Agiru v Electoral Commission (2002) SC687

Christopher M Smith v Ruma Constructions Ltd (2002) SC695

Government of Papua New Guinea & Davis v Barker [1977] PNGLR 386

Grace Lome v Allan Kundi (2004) N2776

Green & Co Pty Limited (In Liquidation) v Green [1976] PNGLR 73

North Solomons Provincial Government v Pacific Architecture Ltd [1992] PNGLR 145

Telikom PNG Ltd v ICCC (2008) SC906

APPEAL

This was an appeal against an order of the National Court, which set aside two default judgments obtained by the appellant and dismissed the entire National Court proceedings.

Counsel

M Pokia, the appellant, in person

2nd May, 2014

1. BY THE COURT: Muriso Pokia appeals against an order of the National Court that set aside two default judgments entered in his favour in the proceedings, WS No 148 of 2011, and dismissed the entire proceedings for abuse of process.

NATIONAL COURT PROCEEDINGS

2. In WS No 148 of 2011 the appellant was claiming damages for defamation, negligence and unlawful deprivation of custody of his children, against:

· his former wife, the first respondent;

· a child welfare officer with the National Capital District Family Welfare Service, the second respondent;

· a member of the Police Force, the third respondent;

· the State, the fourth respondent, which was claimed to be vicariously liable for the conduct of the second and third respondents.

3. The appellant claimed that on 27 August 2009 the second respondent, acting on a false complaint from the first respondent, wrote a defamatory letter to the third respondent, making unfounded allegations against him, and that the third respondent acted negligently on the letter and came to his house and unlawfully removed from his custody his two-year-old daughter.

4. On 7 July 2011 default judgment on liability was entered in his favour against the first, third and fourth respondents (the first, third and fourth defendants). On 25 July 2011 default judgment on liability was entered in his favour against the second respondent (the second defendant).

5. On 28 February 2013 the second, third and fourth respondents filed a notice of motion seeking an order that the two default judgments be set aside and that the entire proceedings be dismissed for being an abuse of process. The motion was heard by the primary Judge on 3 June 2013 and determined on 12 July 2013. The primary Judge upheld the motion and ordered that the two default judgments were set aside and that the whole proceedings were dismissed and that the appellant pay the respondents’ costs of the proceedings. It is that order that the appellant is appealing against.

GROUNDS OF APPEAL

6. The notice of appeal contains 17 grounds of appeal, many of which are repetitious or overlap. They can be reduced to four. The appellant argues that the National Court should have dismissed the motion by which the respondents sought and obtained the order of 12 July 2013 as:

(1) the notice of motion was incompetent (notice of appeal, grounds 1 and 2);

(2) the requirements for setting aside default judgment were not complied with (grounds 9 to 17) ;

(3) he was denied natural justice (ground 3); and

(4) the finding of abuse of process was based on the misconception that he had commenced two proceedings concerning the same cause of action (grounds 4 to 8).

1 THE NOTICE OF MOTION WAS INCOMPETENT

7. The appellant argues that the notice of motion filed on 28 February 2013 was incompetent as it failed to comply with the National Court Rules, Order 4, Rule 49(8) as it did not contain a sufficient reference to the Court’s jurisdiction to grant the orders sought.

8. The notice of motion sought orders that:

1 Pursuant to Section 149 of the Lukautim Pikinini Act, Section 113 of the Child Welfare Act, the inherent powers of the Court under Section 155(4) of the Constitution and pursuant to the Supreme Court decisions in Maku v Maliwolo (2012) SC1171 and William Mel v Coleman Pakalia (2005) SC790, an order that the default judgments entered against the defendants on 24 June 2011 and 13 July 2011 be set aside.

2 Consequently an order pursuant to Section 155(4) of the Constitution, Section 149 of the Lukautim Pikinini Act and Order 12, Rule 40 of the National Court Rules, that the entire proceedings be dismissed for abuse of process.

9. The National Court Rules, Order 4, Rule 49(8) (form of motions) states:

All motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.

The motion must state the following: “...move the Court for Order pursuant to (eg section 5 of the Claims By and Against the State Act...) ...”.

10. The effect of Order 4, Rule 49(8) is that the motion cannot simply state the orders being sought by the mover of the motion. The motion must state the law,...