Thomas Andale v Michael Suviro
Jurisdiction | Papua New Guinea |
Citation | (2017) N6971 |
Date | 06 October 2017 |
Court | National Court |
Year | 2017 |
Full : WS 143 of 2014; First Constable Thomas Andale, Senior Constable David Meren, Constable Chris Akop and Constable Benny Philip v Corporal Michael Suviro (811363) of Papua New Guinea Defence Force – Tengo Based Contingent Commander and Lieutenant Chris Nayaba (811714) of Papua New Guinea Defence Force – Awatangi Based Contingent Commander and Lieutenant Alphonse Bige (812009) of Papua New Guinea Defence Force – NIPA Based Contingent Commander and Captain Noel Hakopes (812636) of Papua New Guinea Defence Force – Group Contingent Commander and Brigadier General Gilbert Toropo – General Commander of Papua New Guinea Defence Force and Sergeant Aquila of Royal Papua New Guinea Constabulary – Police Mobile Squad 18 Commander and Inspector Kalg Maragil of Royal Papua New Guinea Constabulary – Group Police Contingent Commander and Tom Kulunga – Police Commissioner - Royal Papua New Guinea Constabulary and the Independent State of Papua New Guinea (2017) N6971
National Court: Polume-Kiele J
Judgment Delivered: 6 October 2017
N6971
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 143 OF 2014
BETWEEN
FIRST CONSTABLE THOMAS ANDALE, SENIOR CONSTABLE DAVID MEREN, CONSTABLE CHRIS AKOP AND CONSTABLE BENNY PHILIP
Plaintiffs
AND
CORPORAL MICHAEL SUVIRO (811363) OF PAPUA NEW GUINEA DEFENCE FORCE – TENGO BASED CONTINGENT COMMANDER
First Defendant
AND
LIEUTENANT CHRIS NAYABA (811714) OF PAPUA NEW GUINEA DEFENCE FORCE – AWATANGI BASED CONTINGENT COMMANDER
Second Defendant
AND
LIEUTENANT ALPHONSE BIGE (812009) OF PAPUA NEW GUINEA DEFENCE FORCE – NIPA BASED CONTINGENT COMMANDER
Third Defendant
AND
CAPTAIN NOEL HAKOPES (812636 OF PAPUA NEW GUINEA DEFENCE FORCE – GROUP CONTINGENT COMMANDER
Fourth Defendant
AND
BRIGADIER GENERAL GILBERT TOROPO – GENERAL COMMANDER OF PAPUA NEW GUINEA DEFENCE FORCE
Fifth Defendant
AND
SERGEANT AQUILA OF ROYAL PAPUA NEW GUINEA CONSTABULARY – POLICE MOBILE SQUAD 18 COMMANDER
Sixth Defendant
AND
INSPECTOR KALG MARAGIL OF ROYAL PAPUA NEW GUINEA CONSTABULARY – GROUP POLICE CONTINGENT COMMANDER
Seventh Defendant
AND
TOM KULUNGA – POLICE COMMISSIONER - ROYAL PAPUA NEW GUINEA CONSTABULARY
Eighth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant
Waigani: Polume-Kiele J
2017: 21 March & 6 October
PRACTICE AND PROCEDURE - Application for default judgment - O12, r25, r26 & r27 and O12 r28 and r32 - National Court Rules - entry of default judgment - discretionary matter for the court – relevant considerations.
PRACTICE & PROCEDURE - Service of Writ – Proof of – Effect of - O12, r34 – National Court Rules –No Judgment
PRACTICE & PROCEDURE - Pleadings - Pleading of cause of action - Negligence –Failure to plead elements constituting cause of action - Pleading of material facts on vicarious liability - Nexus or connection between employer and servant - Lack of - Effect of - Wrongs (Miscellaneous Provisions) Act, Ch 297 - s1(1) & (4) - No reasonable cause of action exist against the Ninth Defendant; the State.
Case cited:
Papua New Guinea Cases
Abel Tomba v The Independent State of Papua New Guinea (1997) SC518
Agnes Kunton v John Junias (2006) SC929
Bank South Pacific Ltd v Robert Tingke (2012) N4901
Chief Collector of Taxes v Dickson Panel Works Pty Ltd [1988] PNGLR 186
David Lambu v Paul Torato (2008) SC953
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Giru v Muta (2005) N2877
Jacob Simbuaken v Neville Egari (2009) N3824
Karl Paul v. Aruai Kispe, The Regional Manager, PNG Forest Authority (2001) N2085
Kunkene v Rangsu & The state (1999) N1917
Kante Mininga v Independent State of Papua New Guinea, Dr Ponifasio and Doctor Scotty Maclfish (1996) N1458
Kuk Kuli v The State (2004) N2592
Kuk v Yanga (2005) N2764
Laki v Alaluku (2000) N2001
Mapmakers Pty Ltd v BHP Ltd [1987] PNGLR 78
Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492
Motor Vehicle Insurance Ltd v Nominees Niugini Ltd (2015) SC1435
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Pamenda Ipi Pangu v Mak Korr (2015) N6069
Paul Marinda v The Independent State of Papua New Guinea (1991) N1026
Tima v Korohan (2006) N3045
The Independent State of Papua New Guinea v David Wari Kofewei and Ors [1987] PNGLR 5)
Overseas cases cited:
Caparo Industries PLC -v- Dickman [1990] 2 AC 605
Electrical Generating Board [1981] 3 All ER 826
Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53
Read v. Brown (1988) 22 Q.B.D 128
R -v- Metropolitan Police Commander, ex parte Blackburn [1968] 1 All ER 763
R -v- Chief Constable of Devon and Cornwall Constabulary, ex parte Central
Read v. Brown (1988) 22 Q.B.D 128)
Sear v. Lawson (1881) 16 Ch. D. 121
Sear v. Lawson (1881) 16 Ch. D. 121
Smith -v- Chief Constable of Sussex Police (2008) EWCA CIV 39
Sutradhu -v- Natural Environment Research Council [2006] 4 All ER 490
Counsel:
Mr Ayako, for the Plaintiffs
Mr Maniambu, for the Defendants
Interlocutory ruling
6th October, 2017
1. POLUME-KIELE J: This is my ruling on a motion moved by the Plaintiffs on the 21st of March 2017 seeking orders pursuant to Order 12 Rule 25 of the National Court Rules that default judgment be entered against the Eighth and Ninth Defendants plus costs.
Background facts
2. The plaintiffs alleged that they were assaulted, injured, and detained unlawfully during an illegal road block set up on the night of the 18th of October 2013, at Tari, Southern Highlands Province (more specifically at the Tengo Gap Base Camp); by the defendants. The plaintiffs say that they were subjected to inhuman treatment contrary to their basic constitutional rights.
3. All Defendants failed to file a Notice of Intention to defend and Defence to the Claim within the requisite time stipulated under s 9 (a) (i) of the Claims By and Against the State Act 1996 and or Order 8, Rules 4(b) whichever is applicable to each of them severally and individually.
4. Default judgment had already been entered against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants on the 7th of July 2015.
5. The application before this Court is for entry of default judgment against the Eighth and Ninth Defendants only.
Plaintiffs’ submissions
6. Mr Ayako of counsel for the Plaintiffs submitted that the Eighth and Ninth Defendants have failed to file a Defence. Further, they also have not sought leave to file a defence out of time. The plaintiffs seek orders in terms of the reliefs sought in their notice of motion filed on the 9th of November 2016 and they rely on several affidavits in support of their application.
Plaintiffs’ evidence in support of application
7. The documents relied upon to support their application are:
(i) The Notice of Motion filed on the 9th of November 2016 and served on one, Margaret Jakis of the Office of the Solicitor General (Document No. 36) as deposed to in his affidavit sworn on the 11th of November 2016 and filed on the same date;
(ii) Affidavit of First Constable Thomas Andale sworn on the 8th of November 2016 and filed on the 9th of November 2016 deposes to the service of the Notice of Motion and supporting Affidavit on the Office of the Solicitor General on the 9th of November 2016;
(iii) Affidavit of Search of Tabe Jugari sworn on 10th November 2016 and filed on 10th November 2016 December deposing to the facts that the Eighth and Ninth Defendants had not filed any documents in regard to defending these proceedings nor filed a Defence to the Claim.
Defendants’ submission
8. Mr. Maniambu for the Ninth Defendant submitted that the Plaintiffs’ application for default judgment is in compliance with the principles established in the case of Giru v Muta (2005) N2877.
9. Mr Maniambu submitted that the plaintiffs are presumed to have met all these requirements. In any event, the application is basically the same as similar application has been moved and default judgment entered for the plaintiffs already against the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants on the 7th of July 2015. He submits further that this application is in regard to the Eighth and Ninth Defendants only; the remaining named Defendants to the proceedings.
Relevant law
10. The application is moved pursuant to Order 12 Rule 25 of the National Court Rules. Order 12 Rule 25 of the National Court Rules states:
“(1) A Defendant shall be in default for the purposes of this division:
(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or
(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or
(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that rule (has expired but he has not verified his defence”.
11. Other relevant applicable rules for default procedures includes:
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Ga Kumiye & 5 Others v Independent State of Papua New Guinea and the National Road Safety Council and the National Roads Authority and the Secretary, Department of Works (2018) SC1693
...The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 388; SC123 Thomas Andale v. Michael Suviro (2017) N6971 Counsel: P. Kopunye for the appellants T. Tanuvasa for the first, second and fourth respondents M. Maitang for the third respondent. 27th June 20......
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Ga Kumiye & 5 Others v Independent State of Papua New Guinea and the National Road Safety Council and the National Roads Authority and the Secretary, Department of Works (2018) SC1693
...The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 388; SC123 Thomas Andale v. Michael Suviro (2017) N6971 Counsel: P. Kopunye for the appellants T. Tanuvasa for the first, second and fourth respondents M. Maitang for the third respondent. 27th June 20......