Wellcos Engineering Limited v Hami Yawari - Governor of Southern Highlands Province and Brian Pebo - Administrator of Southern Highlands Province and Southern Highlands Provincial Government and The Independent State of Papua New Guinea (2008) N3443

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, J
• Judgment Date: 21 May 2008
• Court: National Court
• Docket Number: WS 959 OF 2006
• Citation: (2008) N3443
• Year: 2008
• Judgement Number: N3443

Full Title: WS 959 OF 2006; Wellcos Engineering Limited v Hami Yawari - Governor of Southern Highlands Province and Brian Pebo - Administrator of Southern Highlands Province and Southern Highlands Provincial Government and The Independent State of Papua New Guinea (2008) N3443

National Court: Hartshorn, J

Judgment Delivered: 21 May, 2008

N3443

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 959 OF 2006

BETWEEN:

WELLCOS ENGINEERING LIMITED

Plaintiff

AND:

HAMI YAWARI – GOVERNOR OF SOUTHERN HIGHLANDS PROVINCE

First Defendant

AND:

BRIAN PEBO – ADMINISTRATOR OF SOUTHERN HIGHLANDS PROVINCE

Second Defendant

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Hartshorn, J.

2007: 15 December,

2008: 21 May

Application to Dismiss Proceedings when Default Judgment Entered - Application to Set Aside Default Judgment - Provincial Legislation - Claims By and Against the Southern Highlands Provincial Government Act – Failure to give notice of intention to make a claim - Failure to personally serve writ of summons -whether irregularity or nullity

Facts:

The first, second and third defendants made an application to dismiss the proceedings for non-compliance with s.5 of the Claims By and Against the Southern Highlands Provincial Government Act 2000 and alternatively that the default judgment that had been entered be set aside pursuant to Order 12 rule 35 of the National Court Rules.

Held:

1. The court cannot determine an application aimed at dismissing the plaintiff's case after the court has already entered judgment in the plaintiff's favour, without first setting aside the judgment.

2. Notwithstanding that the first and second defendants were not served personally with the writ of summons, as they had taken fresh steps in the proceedings with knowledge of the service irregularity and had not deposed to a proposed defence on the merits, the application to set aside the default judgment against them was refused.

3. No notice of intention to make a claim was given to the Southern Highlands Provincial Government as required under s.4 of the SH Claims Act. The giving of such a notice is a condition precedent to the issuing of a writ of summons against the Southern Highlands Provincial Government.

4. The default judgment against the third defendant is set aside.

5. Leave is granted for the third defendant to file its notice of intention to defend and defence within 14 days of this decision.

Cases cited:

Page P/L v. Malipu Balakau [1982] PNGLR 140

Leo Hannett & Anor v. Australia and New Zealand Banking Group (PNG) Ltd (1996) SC505

Tohian and the State v. Tau Liu (1998) SC566

Bokin v. Independent State of Papua New Guinea (2001) N2111

Rabaul Shipping Ltd v. The State (2004) N 2709

John Kewa v. Brian Mangipu (2004) N 2720

Counsel:

Mr. J. Koi, for the Plaintiff

Mr. J. Kiwai, for the First, Second and Third Defendants

21 May, 2008

1. HARTSHORN, J: This is an application by the first, second and third defendants (Defendants) to:

a) dismiss the proceedings for non-compliance with relevant provisions of the Claims By and Against the Southern Highlands Provincial Government Act 2000 (SH Claims Act),

b) in the alternative, that default judgment be set aside pursuant to Order 12 rule 35 National Court Rules.

2. Although the notice of motion filed by Jerry Kiwai lawyers refers to the “Defendants” making the application, it is noted that the notice of motion is signed on behalf of “Lawyers for the First and Second Defendants”, that the notice of change of lawyers filed by Jerry Kiwai lawyers is filed on behalf of the “First, Second and Third Defendants” and that the notice of ceasing to act filed by the Acting Solicitor General is in respect of the “First, Second & Third Defendants” and not the fourth defendant. Accordingly this application is treated as being made on behalf of the first, second and third defendants only.

3. The first question is whether this court can entertain the application to dismiss after judgment has been entered.

4. The cases of Rabaul Shipping Ltd. v. The State (2004) N 2709 and John Kewa v. Brian Mangipu (2004) N 2720 are authorities to the effect that once a judgment has been entered by this court, the court cannot determine an application aimed at dismissing the plaintiff's case after the court has already entered judgment in the plaintiff's favour, without first setting aside the judgment.

5. I am in agreement with this statement of the law and respectfully adopt it. Accordingly the orders sought in paragraph 1 of the notice of motion of the Defendants dated and filed 1 November 2007 are refused.

Default Judgment -setting aside

6. In support of the Defendants’ application were inter alia, 2 affidavits sworn by Mr. William Powi. The Defendants were not permitted to rely upon these affidavits however, as the plaintiff had filed and served a notice to cross examine and Mr. Powi was not present in court for that purpose.

7. As to the first defendant, the evidence filed on behalf of the plaintiff is that the writ of summons was served personally upon Mr. Kevin Kora, house boi, on 28 August 2006.

8. As to the second defendant, the evidence filed on behalf of the plaintiff shows that the writ of summons was sent by “TNT airmail” on 17th August 2006.

9. Clearly there has been a breach of Order 6 rule 3 National Court Rules as the first and second defendants were not served personally with the writ of summons.

10. Pursuant to the Supreme Court decision of Leo Hannett & Anor v. Australia and New Zealand Banking Group (PNG) Ltd (1996) SC505, this is an irregularity that falls within Order 1 rule 8 National Court Rules, but is not a nullity.

11. The discretion to set aside in such circumstances is,

“….subject to the practice that an applicant must show a defence on the merits. In this regard we adopt the opinion of Greville Smith in Page P/L v. Malipu Balakau”[1982] PNGLR 140.

12. In this instance no defence on the merits has been filed by or on behalf of the first and second defendants.

13. A further consideration here is that the first and second defendants have taken steps in the proceedings after a fresh step has been taken in the proceedings by them with knowledge of the irregularity, Order 1 Rule 9 National Court Rules, Leo Hannett’s case (supra).

14. A notice of intention to defend was filed on behalf of the first and second defendants by Ame Lawyers on 24 November 2006, a further notice of intention to defend was filed on behalf of the defendants by the Acting Solicitor General and on 12 June 2007, and notice of ceasing to act was filed by the Acting Solicitor General on 7 July 2007.

15. This documentation would not have been filed without the instructions and consent of the first and second defendants. To give those instructions or consent, the first and second defendants had to be aware of the proceedings although given the above evidence, that did not come from personal service.

16. In the circumstances therefore, although there was an irregularity in the service of the proceedings upon the first and second defendants, as they have not deposed to a proposed defence on the merits and as they have taken fresh steps in the proceedings as referred to, the application to set...