Timothy Tima and Jack Tima for and on Behalf of Themselves and Tima, Kala, Kaloban, Samuel, Ismael, William, Waki Simeon, and Jop Families of Yakananda Village v Chief Inspector Thomas Korohan—P3368 (PPC Enga Province), Inspector Timothy Pomoso—P 4761 (PSC—Wabag), Sergeant Muiken Kakas P8472 (PSC—Laiagam), Inspector Nembenat Flex—P4694 (Commander, M/S 14—Laiagam), Sam Inguba, Commissioner for Police and The Independent State of Papua New Guinea (2006) N3045

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 03 April 2006
• Court: National Court
• Citation: (2006) N3045
• Docket Number: WS 450 of 2005
• Year: 2006
• Judgement Number: N3045

Full Title: WS 450 of 2005; Timothy Tima and Jack Tima for and on Behalf of Themselves and Tima, Kala, Kaloban, Samuel, Ismael, William, Waki Simeon, and Jop Families of Yakananda Village v Chief Inspector Thomas Korohan—P3368 (PPC Enga Province), Inspector Timothy Pomoso—P 4761 (PSC—Wabag), Sergeant Muiken Kakas P8472 (PSC—Laiagam), Inspector Nembenat Flex—P4694 (Commander, M/S 14—Laiagam), Sam Inguba, Commissioner for Police and The Independent State of Papua New Guinea (2006) N3045

National Court: Davani J

Judgment Delivered: 3 April 2006

N3045

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

WS 450 of 2005

BETWEEN:

TIMOTHY TIMA and JACK TIMA for and on behalf of themselves and TIMA, KALA, KALOBAN, SAMUEL, ISMAEL, WILLIAM, WAKI SIMEON, and JOP families of YAKANANDA Village

Plaintiffs

AND:

CHIEF INSPECTOR THOMAS KOROHAN – P3368 (PPC Enga Province), INSPECTOR TIMOTHY POMOSO – P 4761 (PSC – Wabag), SERGEANT MUIKEN KAKAS P8472 (PSC – Laiagam), INSPECTOR NEMBENAT FLEX – P4694 (Commander, M/S 14 – Laiagam)

First Defendants

AND:

SAM INGUBA, COMMISSIONER FOR POLICE

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Davani, .J

2006: 24 March

3 April

Practice and Procedure – Default judgment – strict compliance with rules of court et al – proper service – address for service – O. 12 Rs 24, 25 of National Court Rules (‘NCR’) – NCR 1/87 – NCR 5/97

Practice and Procedure – Default judgment – proper procedure – recent affidavit of search – letter of forewarning – Rule 19 (3) (a) iii of Motions (Amendment) Rules 2005

Writ of Summons – Personal service – Address for service – lack of address for service – writ irregular – O. 6 R. 2 of NCR

Cases cited:

?Bella Kitipa v. Vincent Uali and 3 ors N1773;

?Healey v Ballarat East Bowling Club [1961];

?Kante Mininga v. the State and 2 ors N1458 of 1996;

?Eriare Lanyat, Henry James Tamarua, Naiven Yato & 9 ors v George Wagulo and the State N1481;

?Anton Kaluni v Aiyale Warole and Whatolo Business Group Inc. (2001) N2114;

?Philip Wikai v Bopo Kumbati and Anglo Coffee Pty Ltd dated 11th June, 2001;

?Kabil Worim and 101 others v Sergeant Koben and the State N1417;

Counsel:

P. Korowi for the plaintiffs

D. Lambu for the defendants

RULING

3rd April, 2006

Davani .J: The plaintiff applies for default judgment moving on their Notice of Motion filed by Korowi Lawyers on 3rd August, 2005. The Motion seeks that judgment be entered by default and for damages to be assessed. The application is made pursuant to O. 12 R. 25, 26 & 28 of the National Court Rules (‘NCR’).

The defendant also moves by motion filed by the Office of the Solicitor-General on 20th September, 2005 for leave to file its Defence out of time.

The both applications are opposed. I reserved my ruling to today.

Application

The application for default judgment is supported by several affidavits. They are;

1. Affidavit of service of Robert Kopi sworn on 28th April, 2005;

2. Affidavit of service of Jack Yenege sworn on 23rd June, 2005;

3. Affidavit of service of Jeffrey Korowa sworn on 21st April, 2005;

4. Affidavit of search of Jeffrey Korowa sworn on 2nd August, 2005;

5. Affidavit of Timothy Tima sworn on 19th August, 2005;

6. Affidavit of Mark Gilbert sworn on 6th September, 1965;

The defendant in opposing the application, relies on the affidavit of the Acting Solicitor-General then, Francis Kuvi, sworn on 20th September, 2005.

The defendant also filed its Notice of Intention to Defend on 4th May, 2005.

Analysis of facts and the law

The Writ of Summons and Statement of Claim was filed by Korowi Lawyers for the plaintiff, on 1st September, 2005 (‘Writ’). The Statement of Claim pleads that on 5th August, 2004, the defendants after a (police) raid upon their village, destroyed their homes and properties and also killed and injured some villagers. The plaintiff claims losses to the value of K4,043,675.81 and other damages to be assessed.

Apart from the provisions of the NCR that the plaintiff relies on, there are practice directions which clearly set out the procedure for default judgment, namely Practice Direction NCR 1/87 and NCR 5/97.

Firstly, I should point out that when an applicant applies for default judgment, he is saying that stipulated procedures have not been complied with. So he must strictly prove the non-compliance of these procedures or compliance with procedures before he can get judgment, notwithstanding the fact that in some situations, parties may have been negotiating or exchanging correspondence on either settlement or the filing of a Defence etc. I will discuss the relevance of this statement, later.

O. 12 R. 24 and 25, state that where a defendant is required to file a Defence within the period specified and he has not done that, then the defendant shall be in default. Or where a defendant is required to verify his Defence and he fails to do that, then he shall be in default. In this case, the endorsement on the writ states;

“You are liable to suffer judgment or an Order against you unless the prescribed form of your intention to defend this claim is received in the registry with thirty (30) days after service of this Writ of Summons upon you and comply with the Rules of Court relating to your Defence.

You are required to verify your Defence.”

Apart from the endorsement on the Writ, Practice Direction NCR 1/87 issued on 15th June, 1997 and Practice Direction NCR 5/97 issued on 17th September, 1999 are very specific on procedure in relation to default judgments.

Practice Direction NCR 1/87 reads;

“PRACTICE DIRECTION NC 1/87 (Issued 15th June, 1987)

DEFAULT JUDGMENT – OBLIGATION TO NOTIFY PERSON OR LAWYER FILING NOTICE OF INTENTION TO DEFEND

In N588 – Mapmakers Pty Limited v. Broken Hill, Proprietary Company Limited, the Chief Justice has laid down the following principle to be followed when entering default judgments, namely that there must be a practice of forewarning lawyers of the opposite side (or the Defendant if in person) before entering judgment where there is a Notice of Intention to Defend filed.

In the event that this does not occur, then this failure may be a ground for setting aside the judgment.”

Practice Direction 5/97 reads;

“(g) PRACTICE DIRECTION NC 5/97 (issued 17th September 1997)

DEFAULT JUDGMENT PROCEDURE

As of the date of this Practice Direction the practice of the Court for the entry of Default Judgment will be that on meeting the requirements of Order 12 Division 3 of the National Court Rules, the Registrar will give a date for a Motion to be heard.

Under the decision of Paraka v Madang Provincial Government N1596 (Doherty J, September 12, 1997) the Registrar of the National Court is deemed not to have had the power to enter a Default Judgment. Only a Judge of the National Court can direct the entry of a Default Judgment.

Those persons submitting a Default Judgment will be required to provide the following:

? An Affidavit of Service;

? An Affidavit of Search;

? An Affidavit in support (including a letter to the other party if a Notice of Intention to Defend is filed);

? A form of Default Judgment;

? A Notice of Motion

A date for hearing the Motion will be given by the Registrar at a date at least 3 days after the requirements of Order 12 Division 3 (and in respect of service on the State, the Claims By and Against the State Act 1996) are complied with.

Service of the Motion in accordance with Order 4 Division 5 – Motions of the National Court Rules will be required.”

Has the plaintiff complied with stipulated, mandatory procedure in relation to obtaining default judgment? To do that, I will review the steps the plaintiffs lawyer should have taken, to then be an eligible applicant for default judgment.

i. Notice under s. 5 of the Claims By and Against the State Act (‘CBASA’) – Because this is a claim against the State, the plaintiff must satisfy the court that he has given notice under s. 5 of the CBASA. The plaintiffs pleads at paragraph 16 of their Statement of Claim that they gave notice to the Attorney-General under cover of their letter dated 20th December, 2004. The Solicitor-General has acknowledged receipt of this letter which is confirmed in Francis Kuvi’s affidavit sworn on 20th September, 2005. Mr Kuvi, the then acting Solicitor-General, deposed in his affidavit of par. 2 that his personal secretary received that letter on 5th January, 2005.

However there is an issue in relation to the number of plaintiffs who have given notice. Mr Lambu submits that each plaintiff must give notice of the claim under s. 5 of the CBASA and that s. 5 of the CBASA only states that Notice of Intention to make a claim must be given to the State. The relevant section, s. 5, reads;

“5. NOTICE OF CLAIMS AGAINST THE STATE

…

(2) A notice under this section shall be given –

...

(c) within such further period as –

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.”

Mr Korowi submits that this provision does not state that each plaintiff must be served, especially in cases where there are numerous plaintiffs. And I accept Mr Korowi’s submissions because it would not make sense in a case where there are...