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
• Court: National Court
• Citation: (2008) N3443
• Date: 21 May 2008
• Docket Number: WS 959 OF 2006
• Year: 2008

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

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 s5 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 O12 r35 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 s4 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:

George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140; Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Paul Tohian v Tau Liu (1998) SC566; John Bokin v The State (2001) N2111; Rabaul Shipping Ltd v The Independent State of Papua New Guinea (2004) N2709; John Kewa v Brian Mangipu (2004) N2720

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...