Esther Imatana v David Manayau and Milne Bay Provincial Health Authority and Independent State of Papua New Guinea (2019) N7984

• Jurisdiction: Papua New Guinea
• Judge: Toliken J
• Judgment Date: 23 August 2019
• Court: National Court
• Citation: (2019) N7984
• Docket Number: WS NO. 1658 OF 2015
• Year: 2019
• Judgement Number: N7984

Full Title: WS NO. 1658 OF 2015; Esther Imatana v David Manayau and Milne Bay Provincial Health Authority and Independent State of Papua New Guinea (2019) N7984

National Court: Toliken J

Judgment Delivered: 23 August 2019

N7984

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1658 OF 2015

BETWEEN

ESTHER IMATANA

Plaintiff

AND

DAVID MANAYAU

First Defendant

AND

MILNE BAY PROVINCIAL HEALTH AUTHORITY

Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Alotau: Toliken, J.

2019: 23rd August

PRACTICE AND PROCEDURE - Default judgment – Requirement for – Whether satisfied – Plaintiff satisfies requirements for default judgment – National Court Rules, Order 12 Rules 25, 28, 32,

VICARIOUS LIABILITY – Statutory Authority – Provincial Health Authorities Act 2007 - Whether State vicariously liable for torts committed by provincial health authorities and their boards and employees – Section 4 of Provincial Health Authorities Act binds the State – State vicariously liable – Default judgment entered – Damages to be assessed.

Cases Cited:

Bank of South Pacific Ltd v Tingke (2014) SC 1355

Bala Kitipa v Vincent Auali & Ors (1998) N1773

Eliakim Laki & 167 Ors v Alaluku (2000) N2001

John Kunkene v Michael Rangsu & The State (1999) N1917

Kante Mininga v The State & Ors (1996) N1458

Kante Mininga v The State & Ors (1996) N1458; Beecroft No. 51 Ltd trading as Ronnie’s Hot Bread v Neville Seeto & Ors (2004) N2561

Keimali v Akema (2010) SC 1061

Kimisopa v Paraka (2009) SC 1325

National Capital District Capital v Dademo (2013) SC 1260

National Executive Council v Williams (2005) SC 819

Pokia v Yallon (2014) SC 1336

Ronnie’s Hot Bread v Neville Seeto & Ors (2004) N2561

Tiaga Bomson v Kerry Hart (2003) N2428

Yamanka Multi-Services Ltd v National District Commission (2010) 3904

Yer, Secretary, Department of Finance v Yama (2009) SC 996

Counsel:

T Ilaisa, for the Plaintiff

Nil appearance by the Defendants

RULING ON MOTION

23rd August, 2019

1. TOLIKEN J: This is a motion for default judgment pursuant to Order 12 Rules 25 and 28 of the National Court Rules (the Rules) filed on 05th January 2017.

2. I heard the motion on 12th April 2017 and on 23rd October 2017 I ruled that the motion could not proceed as the Plaintiff had not by then served the Notice of Motion on the Defendants. I adjourned the matter for hearing to 08th November 2017. The matter did not proceed on that date and has been left in abeyance since then. The Motion has since been served on the Defendants and the Plaintiff had moved the Court for a substantive ruling on her Motion. This is my ruling.

BACKGROUND

3. The Plaintiff filed her Writ of Summons against the Defendants on 18th November 2015. The First Defendant is an employee of the Second Defendant, a body corporate established under the Provincial Health Authorities Act 2007 (PHAA) and therefore can sue and be sued in its own name (Section 9 (2)( c)). The Third Defendant is the State.

4. The First Defendant was personally served a copy of the writ on 10th December 2015. The writ was served on 16th December 2015 on the Solicitors General (for the Third Defendant) by delivery of a copy of the writ on one Betty Makis, the Executive Secretary to the Solicitor General.

5. On 15th April 2016, the Plaintiff filed an Amended Statement of Claim without leave of the Court.

6. On 12th May 2016, the Plaintiff served a copy of her Amended Statement of Claim on the First Defendant.

7. On 16th May 2016, the Third defendant was served with the Amended Statement of Claim by one Nao Airi of the Public Solicitors Office, Boroko, NCD, by delivering same with Betty Makis, Senior Executive Assistant, of the Office of the Solicitor, who accordingly acknowledged receipt.

8. On 23rd May 2016, the Third Defendant filed a Notice of intention to Defend, apparently in response to the Amended Statement of Claim.

9. On 10th August 2016, the Second Defendant was served the writ through the “Hospital CEO” by one Lornah Bellamy of the Public Solicitor’s office, Alotau, pursuant Section 52 of the Public Health Authorities Act 2007.

10. The First and Second Defendants did not file either a Notice of Intention to Defend for a Defence for that matter.

11. On 05th January 2017, the Plaintiff by Motion applied for Default judgment.

12. On 02nd April 2017 by letter to the Solicitor General, Mr. Ilaisa of Counsel for the Plaintiff forewarned the defendants of the Plaintiff’s intention to apply for default judgment.

On 12th April 2017 the Plaintiff moved his Motion for default judgment. The Court reserved its ruling.

13. On 23rd October 2017 I ruled that the motion could not proceed as the Plaintiff had not by then served the Notice of Motion on the Defendants.

THE LAW

14. Order 12 Rule 25 which provides for the power of the court to enter default judgment reads:

25. Default (17/2)

A defendant shall be in default for the purpose 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 so verified his defence.

15. Order 12 Rule 28 provides:

28. Unliquidated damages (17/5)

Where the plaintiff’s claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgment against the defendant for damages to be assessed and for costs.

16. And Order 12 Rule 32 also relevantly provides:

32. General. (17/9)

(1) Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against the defendant as the plaintiff appears to be entitled to on his writ of summons.

(2) Notwithstanding Sub-rule (1), the court shall not, under the Sub-rule, direct the entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30(2) and (4).

17. For the Plaintiff to be granted default judgment he must satisfy the following requirements:

1. Whether the Motion for default judgment is in the proper form and is supported by affidavit, as required by Division 4.5 (motions) of the National Court Rules, in particular Rules 40 (contents of motion) and 44 (affidavits) and 49(8). (See Pokia v Yallon (2014) SC 1336; Giru v Muta (2005) N2877)

2. Whether the Notice of Motion raises serious questions or allegations of fraud or deceit, which may require, in the interest of justice to be proved by evidence at trial prior to judgment on the merits. (Bala Kitipa v Vincent Auali & Ors (1998) N1773)

3. The extent of the default by the defendants. (John Kunkene v Michael Rangsu & The State (1999) N1917)

4. Whether the Defendants appear to have a good defence (Kunkene v Rangsu & The State (supra))

5. Whether the claim amounts to an abuse of process. (Eliakim Laki & 167 Ors v Alaluku (2000) N2001)

6. Whether the pleadings disclose a reasonable cause of action. (Eliakim Laki & 167 Ors v Alaluku (supra.); Giru v Muta (supra.))

7. Whether the Plaintiff has prosecuted his case diligently. (Tiaga Bomson v Kerry Hart (2003) N2428)

8. Whether the entry of judgment will prejudice the rights of co-defendants. (Kante Mininga v The State & Ors (1996) N1458; Beecroft No. 51 Ltd trading as Ronnie’s Hot Bread v Neville Seeto & Ors(2004)N2561.

9. Whether the interest of justice will be served if default judgment were to be granted. (Giru v Muta (supra.))

10. Whether the plaintiff had forewarned the defendant of his intention to apply for default judgment. (Giru v Muta (supra.))

18. The power to enter default judgment remains discretionary and the Court can refuse grant if any of the above considerations are found to be present. However, it is trite that where a trial judge is required to exercise discretion, he must do so judicially, that is on proper principles of law. (National Capital District Capital v Dademo (2013) SC 1260; Keimali v Akema (2010) SC 1061; Yer, Secretary, Department of Finance v Yama (2009) SC 996; Kimisopa v Paraka (2009) SC 1325) This principle applies equally to the exercise of discretion in respect of motions for default judgment. (Bank of South Pacific Ltd v Tingke (2014) SC 1355; National Executive Council v Williams (2005) SC 819)

DELIBERATIONS

19. So, is this a case that is appropriate for default judgment? In other words does it satisfy the requirements stated above?

20. I find that the motion is in proper form and is supported by an Affidavit in Support by the Plaintiff.

21. The claim does not involve any allegation of fraud or deceit which would be required to be...