Tiaga Bomson v Kerry Hart, Ben Mane and New Britain Palm Oil Limited (2003) N2428

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 14 July 2003
• Court: National Court
• Citation: (2003) N2428
• Year: 2003
• Judgement Number: N2428

Full Title: Tiaga Bomson v Kerry Hart, Ben Mane and New Britain Palm Oil Limited (2003) N2428

National Court: Kirriwom J

Judgment Delivered: 14 July 2003

N2428

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 145 of 2001

BETWEEN:

TIAGA BOMSON

-Plaintiff-

AND:

KERRY HART

First Defendant

AND:

BEN MANE

Second Defendant

AND:

NEW BRITAIN PALM OIL LIMITED

Third Defendant

LAE: KIRRIWOM, J.

2003: 7 & 14 July

PRACTICE AND PROCEDURE – Default Judgment – Notice of Intention to Defend filed within time – Defence filed outside time prescribed – No leave sought before filing – Delay in applying for default judgment – Application for leave to file defence out of time – Motion for dismissal of motion for delay in prosecution – Discretion to accept defence filed outside prescribed time on basis of defence on the merits – Failure to explain delay – Application for default judgment dismissed with costs – National Court Rules, O.1 r.15. O. 12 rr. 25 & 27

Cases cited:

1. Thomas Koral v Alex Kavie and Petrus Alex [1999] Unreported National Court Judgment – W.S. 286 of 1998.

2. Luke Tai v Australia and New Zealand Banking Group (PNG) Limited [2000] Unreported National Court Judgment N1979

3. Robin Kipane v Felix Anton and PNG Waterboard [2003] Unreported National Court Judgment – W.S. No. 1675 of 2002

M. Mumure for the Plaintiff/Applicant

P.Ousi for the 1st, 2nd and 3rd Defendants/Respondents

14th July 2003

Kirriwom, J: There are two motions before me. The plaintiff’s motion is for the defendants’ defence to be struck out as being filed out of time and that default judgment be entered for the Plaintiff. This motion has been on foot since 15 October 2002. The defendants’ motion which was filed a little under a month from the Plaintiff’s motion prays for that motion of 15 October 2002 to be dismissed and prays for leave to be given to the defendants to file their defence out of time.

It is now about seven months since these two motions have been lying about in the file awaiting prosecution. Both parties are guilty of procrastination and I don’t know who comes with clean hands if equity has any say in both these applications. There is no explanation either way as to why the matter had been left in abeyance for months and finally came before the court.

This is a case commenced by writ of summons and the plaintiff is seeking amongst other associated and incidental reliefs damages for unlawful termination of employment with the Third Defendant. In order to appreciate the nature of the case and its prospects it is important to point out few pertinent dates and events as sign-posts for determining the direction in which the court must as a matter of law or equity follow to do justice in the circumstances.

CHRONOLGY OF EVENTS

1. 15/2/00 - Plaintiff was terminated by letter signed by Personnel Manager of New Britain Palm Oil Limited (NBPOL) Ben Mane

2. 3/3/00 - Letter written by Plaintiff to NBPOL Personnel Manager withdrawing threat of legal action and requesting assistance

3. 15/02/01 - Commencement of legal proceedings by Plaintiff through Jackson Gah and Associates by issuing writ of summons

4.. 7/3/01 - Defendants filed Notice of Intention to Defend

5. 24/09/01 - Defendants filed Defence.

6. 8/01/02 - Notice of Change of Lawyers filed by Gamoga Lawyers on behalf of the Plaintiff

7. 15/10/02 - Plaintiff filed Motion to strike out defendants’ defence and to enter judgment

8. 5/11/02 - Defendants filed Motion, inter alia, for leave to file defence out of time and for dismissal of Plaintiff’s motion for judgment

Neither of the parties is relying on any new material other than those that have been filed since the proceedings were either commenced or assumed by the lawyers on behalf of the parties. I say this because the plaintiff was initially represented by Jackson Gah and Associates but this law firm has ceased operating and the plaintiff has since 8 January 2002 engaged Gamoga & Co Lawyers as his lawyers. The defendants have always been represented by Warner Shand Lawyers since 7 March 2001.

Default Judgment

Plaintiff’s application is made under O.12 rr.25 and 27 National Court Rules for default judgment be entered against the defendants in that they have not filed their defence within time as required under the Rules. It is contended that the defence filed on 24 September 2001 be rejected as no leave has been sought and obtained for defence to be filed out of time.

Under the Rules, after giving notice of intention to defend on 7 March 2001 the defendants had 14 days to file their defence, which means by the 22nd March, 2001- O.8 4(1)(a) and (b) of the National Court Rules. However if the plaintiff was also alert at the time, he could have through his lawyers at the time acting for him reminded the defendants through their lawyers that they had already defaulted after 22 March, 2001 and unless they did so within the next 14 days he would move to file judgment in default. His former lawyers were obligated to pursue this if the Rules were to strictly apply. But the plaintiff was content to let the matter take its slow pace as it suited his convenience and I will explain this shortly.

The need to obtain leave to file defence out of time is mandatory as I ruled in Thomas Koral v Alex Kavie and Petrus Alex [1999] Unreported National Court Judgment – W.S. 286 of 1998. In that case the defendants were eleven days out of time when they took steps to file their defence without obtaining leave which was objected to by the plaintiff. The court said ‘…whilst the defendants were at liberty to give notice of intention to defend at any time outside the time prescribed, that notice was conditional on the defendants obtaining leave from the court to file their defences. The defendants had not obtained such leave before proceeding to file their defences, as such the defence filed is ultra vires O.7 r.6(2) of the National Court Rules. This Rule is expressed in mandatory terms.’ This decision was followed in Luke Tai v Australia and New Zealand Banking Group (PNG) Limited [2000] Unreported National Court Judgment N1979 by Kapi, DCJ and in my very recent judgment I adopted the same reasoning in Robin Kipane v Felix Anton and PNG Waterboard [2003] Unreported National Court Judgment – W.S. No. 1675 of 2002. Unlike the present case, in Robin Kipane v Felix Anton and PNG Waterboard (supra) the defendants did not appear and oppose the motion for default judgment.

The defendants in this case are vigorously opposing the plaintiff’s motion and moved a counter motion to dismiss the plaintiff’s application and are also seeking orders that their defence filed out of time be accepted or in the alternative, leave be given to them to file their defence out of time. The defendants rely on the affidavits of Kerry Hart sworn 15th December, 2002, Himson Waninara sworn 5th December 2002, Himson Waninara, sworn 1st November, 2002, Ben Mane, 1st November, 2002, Kerry Hart sworn 5th November 2002. there is also an affidavit reply sworn by the plaintiff on 14 November 2002 and filed 15th November, 2002. I have read the affidavits filed in support which I need not set out in the judgment.

The combined evidence deposed to in all the affidavits filed in defence and in support of the defendants’ motion is that the plaintiff had foregone his right of legal action against the third defendant or all the defendants for that matter by letter dated 3rd March 2000 when he withdrew his threat of legal action and sought favours from the third defendant. This was just a little under a month after his termination of employment by the third defendant. As the result of the letter that he wrote and subsequent dealings with the defendants, several large contracts were given to the plaintiff as the contractor under the name Sarakolok West Transport Limited by the third defendant from June 2001 to December 2001 to the total value of K999,384.00. The contracts were...