Muriso Pokia v Mendwan Yallon and Dorothy Nanai and Senior Constable Job Eremugo and The Independent State of Papua New Guinea (2014) SC1336

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 02 May 2014
• Citation: (2014) SC1336
• Docket Number: SCA NO 105 0F 2013
• Year: 2014

Full Title: SCA NO 105 0F 2013; Muriso Pokia v Mendwan Yallon and Dorothy Nanai and Senior Constable Job Eremugo and The Independent State of Papua New Guinea (2014) SC1336

Supreme Court: Salika DCJ, Cannings J, Kariko J

Judgment Delivered: 2 May 2014

PRACTICE AND PROCEDURE—setting aside by National Court of default judgment on ground of defence on merits—dismissal of proceedings by National Court on ground of abuse of process—circumstances in which default judgment may be set aside—whether there was a multiplicity of proceedings, warranting a finding of abuse of process.

The appellant appealed against an order of the National Court, which set aside two default judgments entered in his favour in the same proceedings and dismissed the entire proceedings for abuse of process. He argued that the National Court should have dismissed the motion by which the respondents sought and obtained the order being appealed against as: (1) the notice of motion was incompetent; (2) the requirements for setting aside default judgment were not complied with; (3) he was denied natural justice by the National Court; and (4) the finding of abuse of process was based on the primary Judge’s misconception that he had commenced two proceedings concerning the same cause of action.

Held:

(1) The notice of motion was non-compliant with the National Court Rules, O4, r49(8) as it did not contain a sufficient reference to the Court’s jurisdiction to grant the orders sought. It referred to irrelevant laws. It should have referred to O12, r8 and/or O12, r35 of the National Court Rules. However it lay within the discretion of the primary Judge to nevertheless hear and determine the motion. No error of law was involved in the primary Judge deciding to hear and determine the motion.

(2) If a default judgment is so irregularly entered as to be a nullity, a defendant is entitled to have it set aside as of right. However, if the default judgment cannot be regarded as a nullity, and whether or not there was some irregularity in the entry of judgment (eg that a rule of court was not complied with), the defendant must prove (by evidence of the defendant (not of his lawyer) that: (a) the application to set aside the default judgment was made within a reasonable time of the judgment becoming known to the defendant; (b) there is a good explanation for the judgment being allowed to be entered by default; (c) there is a defence on the merits. Here the primary Judge erred in law by not insisting on compliance with those requirements.

(3) The National Court is obliged to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are the duty to act fairly and in principle to be seen to act fairly. The appellant failed to convince the Supreme Court that those requirements were breached.

(4) An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Here the appellant had prior to commencing the proceedings that are the subject of appeal, commenced similar, related proceedings. But the causes of action—defamation, negligence and unlawful deprivation of his children—accrued on different dates. The primary Judge erred in law in regarding the appellant as being guilty of duplicating proceedings. The proceedings were dismissed in error.

(5) The appeal was substantially upheld and the order setting aside the two default judgments and dismissing the National Court proceedings was quashed and the National Court proceedings were reinstated and remitted to the National Court for directions.

Cases cited

The following...