Telikom PNG Limited v Thomas Tulin (2004) SC748

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ, Sakora J, Batari J
• Judgment Date: 02 June 2004
• Citation: (2004) SC748
• Docket Number: SCA No 44 of 2000
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC748

Full Title: SCA No 44 of 2000; Telikom PNG Limited v Thomas Tulin (2004) SC748

Supreme Court: Injia DCJ, Sakora J, Batari J

Judgment Delivered: 2 June 2004

1 Supreme Court Appeal—Civil Law—Practice and procedure—Distinction between summary judgment and default judgment—Misconception of procedure—Error in exercise of discretion—Summary judgment quashed.

2 No cases cited in the judgment

___________________________

SC748

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE

AT WAIGANI ]

SCA NO. 44 OF 2000

BETWEEN:

TELIKOM PNG LIMITED

Appellant

AND:

THOMAS TULIN

Respondent

WAIGANI : Injia Dep. CJ, Sakora & Batari JJ.

2004 : April 27, June 2

Supreme Court Appeal – Civil Law – Practice and procedure – Distinction between summary judgement and default judgment – Misconception of procedure – Error in exercise of discretion – Summary judgement quashed.

No cases cited in the judgement

I. Molloy with S. Ketan for the Appellants

E. Waisaf for the Respondent

2 June 2004

BY THE COURT: This is an appeal against a summary judgement given by the National Court on 15th June 2000. The Court granted summary judgement on liability for damages to be assessed on a claim for breach of contract of employment.

The short facts are that on 8th July 1999, the Respondent commenced proceedings against Minister for Communications (First Defendant) and the Appellant (2nd Defendant) seeking specific performance or damages for breach of Employment Contract. The claim arose out of the Appellants’ employment as the Managing Director of the Appellant. The Writ was served on the Defendants and both Defendants filed Notices of Intention to Defend. It is not clear when the Writ was served and notices of intention to defend filed. On 22nd September the Appellant filed an Interim Defence. The first Defendant did not file his Defence. On 23rd September 1999 the Respondent moved a Notice of Motion for summary judgment but it did not

specify if summary judgment was being sought against the First Defendant or Second Defendant, jointly or severally. The Notice of Motion was supported by an affidavit of the Respondent sworn on “5th June 1999” and affidavit of Philip Kuimb.

The motion was fully argued before the Court. The Defendants were separately represented. The Respondent’s counsel informed the Court that he was unaware of any Defences being filed by either Defendants. Mr Parkop for the Second Defendant referred to his Interim Defence filed in Court the previous day, which he had not served yet, in which his client raised the defence of lack of authority of the person acting for the Appellant to contract. He said he would file and serve “a confirmed defence.” Mr Tuva for the First Defendant relied on s.9 of the Claims By and Against the State Act. He submitted since the Writ was filed on 9th July 1999, he had 90 days to file a defence which fell due on 12th October 1999, and he would file the Defence before the due date. The Respondents’ counsel had no response to this submission.

The judgement of the Court appealed from is very brief. We set out the judgement in full:

“Mr Kuimb moved on behalf of the Plaintiff to enter summary judgement for K1,186,487.90. In the alternative, an order was sought for Specific performance under Clause 6.4(f) and 6.5 of the Contract that is to pay the Plaintiff the sum of K1,186,497.90 forthwith. No defence has been filed by either Defendant. This suit is on contract and no defence had been shown except general assertion in court that contract was not approved and hence void. The second defendant did not want to know anything pleading lack of notice under Claim Against the State Act. I therefore enter summary judgment against the defendants. The Summary judgement is on liability only for the amount claimed to be appropriately assessed.”

There are three (3) grounds of appeal but they raise the same point - that the Court erred in law and in fact in finding that the Appellant did not file a Defence. On the contrary, the Appellant did file a Defence to the claim and had the Court considered the defences raised in the Defence, summary judgment would not have been granted.

Both counsel made submissions on the nature of the Respondent’s claim, the merits of the defences and on other procedural issues but we do not consider it is necessary to deal with all of them. We consider that our determination on the issues of whether the Appellants filed their defences, and if so, whether they were considered by the Court, may be dispositive of this appeal.

The Court found that “No defence was filed by either Defendant” but it failed to address its mind to the interim Defence filed by the Appellant which was before the Court. The Court failed to find the Appellant had defaulted in filing its Defence. The finding that the Appellant did not file a Defence is clearly wrong because it did file a Defence in the form of an interim Defence which was before the Court. His Honour did not consider the defences raised in that Interim Defence. We are satisfied that this failures amount to a grave error of fact and law, which vitiates the very foundation on which the summary judgement against the Appellant is based.

The First Defendant, the Minister for Communication, has not appealed against the summary judgement entered against him. Nonetheless, the summary judgment as it states now cannot lawfully apply to it. The Court failed to address the First Defendant’s indication that it would file its Defence by the due date. The Court failed to find the First Defendant had defaulted in filing its Defence. No judgment should have been given against the First Defendant because its time period to file its Defence was still...