Obadia Buka v Jude Baisi and Notus Investments Limited (2004) N2602

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 27 August 2004
• Court: National Court
• Citation: (2004) N2602
• Year: 2004
• Judgement Number: N2602

Full Title: Obadia Buka v Jude Baisi and Notus Investments Limited (2004) N2602

National Court: Lay J

Judgment Delivered: 27 August 2004

1 PRACTICE AND PROCEDURE—Summary Judgment O12 r38—evidence of belief there is no defence—resisting summary judgment principles—Want of Prosecution—O10 r5—delay by all parties—principles for striking out—O4 r36, O10 r5 and Supreme Court O7 r53—lawyers to communicate with each other.

2 Hornibrook Construction Limited v Lihir [1998] PNGLR 53, Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 285, Curtain Bros (QLD) Pty. Ltd & Kinhill Kramer Pty. Ltd v State [1993] PNGLR 285, Provincial Government of North Solomons v Pacific Architecture Pty. Limited [1992] PNGLR 145, Ronald Nicholas v Commonwealth New Guinea Timbers Limited [1986] PNGLR 133, Marksal Ltd & Robert Needham v Mineral Resources Development Limited, Masket Iangaleo, Gerea Aopi and CharlesLepani N1807, Bank of south Pacific Limited v Rau Wok N2118, General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331, Mali Pyali v Chief Inspector Leo Kabilo (2003) N2492 referred to

___________________________

N2602

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 982/01

OBADIA BUKA

AND

JUDE BAISI

First Defendant

AND

NOTUS INVESTMENTS LIMITED

Second Defendant

KOKOPO: LAY J.

13th, 27th August 2004

PRACTICE AND PROCEDURE – Summary Judgement O12 R38 – evidence of belief there is no defence – resisting summary judgement principles – Want of Prosecution – O10 R5 – delay by all parties – principles for striking out – O4 r 36, O10 r5 & Supreme Court O7 r 53 - lawyers to communicate with each other.

Cases cited:

Hornibrook Construction Limited v. Lihir [1998] PNGLR 53

Bruce Tsang v. Credit Corporation (PNG) Limited [1993] PNGLR 285

Curtain Bros (QLD) Pty. Ltd & Kinhill Kramer Pty. Ltd v. State [1993] PNGLR 285

Provincial Government of North Solomons v. Pacific Architecture Pty. Limited [1992] PNGLR 145

Ronald Nicholas v. Commonwealth New Guinea Timbers Limited [1986] PNGLR 133

Marksal Ltd & Robert Needham v. Mineral Resources Development Limited, Masket Iangaleo, Gerea Aopi and CharlesLepani N1807

Bank of south Pacific Limited v. Rau Wok N2118

General Accident and Life v. Ilimo Farm [1990] PNGLR 331

Mali Pyali & Jim Kaiya v. Chief Inspector Leo Kabilo & The State N2492

Counsel:

Mr. Joseph Nanei for the Applicant Defendants

Mr David Lidgett for the Respondent Plaintiff

The Defendants by Notice of Motion filed 28th June 2004 seek orders that the Plaintiffs statement of claim be dismissed for want of prosecution, that the Plaintiffs Defence to the Cross Claim be struck out and that judgement be entered on the Defendants cross-claim against the Plaintiff for K62,803.16.

The Plaintiff claimed in his writ for K10, 000 unpaid rent and K6000 for other specified damages.

The Defendants claimed in their cross claim the sum of K62,803.16 being money thrown away on improvements when they were forced out of the premises by the Plaintiff, loss of profit for the same reason, loss of trade store goods, and the value of assets seized by the Plaintiff.

The writ was issued 19th July 2001 and the last pleading, which was the Reply and Defence to the Cross Claim, was filed on 3rd September 2001.

The Defendants relied on the affidavits of the First Defendant sworn 28th June 2004 and 8th July 2004 and the affidavit of Joseph B Nanei sworn 24th June 2004. Those affidavits set out the bare facts of the heads of claim and the progress of the pleadings.

The Plaintiff and his lawyer filed affidavits explaining that the Plaintiff had been away from Kokopo as a circuit pastor, then he retired due to knee joint problems and had difficulty raising finance to engage a lawyer since his former lawyers ceased to act in September 2002

I will deal first with the application for judgment. The Defendants made their application under Order 12 Rule 38. I was referred to the case of Hornibrook Construction Limited v. Lihir [1998] PNGLR 53, a decision of Sevua J. In that case the Court said:

“The law in relation to summary judgment has been settled by the Supreme Court in Bruce Tsang -v- Credit Corporation (PNG) Ltd [1993] PNGLR 112 and followed in Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd -v- The State [1993] PNGLR 285.

In both decisions of the Supreme Court, the Court said at 117 and 288 respectively:

“There are two elements involved in this rule:

(a) evidence of the facts proving the essential elements of the claim; and

(b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.

As to the second element, the plaintiff must show in absence of any defence or evidence from the defendant that in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case.”

The Defendants submitted that the First Defendants affidavits showed that there was no reasonable defence and that this fulfilled the requirement of the second element of the rule. The Defendants have certainly deposed to the broad facts of their counter claim sufficient to require the Plaintiff to “condescend upon particulars” in an answering affidavit. As the Supreme Court observed in the case of Provincial Government of North Solomons v. Pacific Architecture Pty. Limited [1992] PNGLR 145:

“We think the same principle applies in these cases as applies in the case of a defendant resisting an application for summary judgment. As Lord Blackburn said in Wallingford v Directors of the Mutual Society (1880) 5 AC 685 at p 704, the defendant must "condescend upon particulars". It is not enough to swear, "I say I owe the man nothing". Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so.”

Provincial Government of North Solomons v. Pacific Architecture Pty. Limited was concerned with an application to set aside a default judgement. But the same principle applies in both the situation of resisting summary judgement and applying to set aside default judgement; the onus of establishing that there is an arguable defence shifts to the Defendant (or Cross Defendant) once the Plaintiff (or Cross Claimant) has filed evidence of its claim. Here the Cross Defendant has not filed any affidavit in reply.

However, in both Bruce Tsang -v- Credit Corporation (PNG Ltd and Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd -v- The State the Supreme Court found that, the party seeking summary judgement must give evidence that in their opinion there is no defence. It is an essential element of successfully maintaining a claim for judgement under Order 12 Rule 38. That is the clear requirement of the Rule. I do not read those Supreme Court authorities as saying that compliance with the second element of the Rule is not required if a defence is filed. Nor do I read them as saying that the second element can be fulfilled by evidence, attacking the defence, which falls short of a clear statement that the Plaintiff believes that the Defendant has no defence. There is no evidence of such a belief in the filed affidavits despite submissions to the contrary. Accordingly the Defendants cannot have judgement under the Rule.

The Second part of the Defendants application was made pursuant to Order 10 Rule 5 to strike out the Plaintiffs proceedings and it’s Defence to the Cross Claim for failing to set the matter down for trial within 6 weeks of the close of pleadings. The Defendants say the Plaintiff has delayed for 3 years 1 month. The Plaintiff submitted that the delay was not contumelious.

On the evidence before me, this is not a case where the Applicant Cross Claimant has written to get the Plaintiff to take steps in the proceedings, nor has it taken its own steps to set the matter down for trial. The Applicant Cross Claimant...