Thomas Andale v Michael Suviro

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 06 October 2017
• Citation: (2017) N6971
• Court: National Court
• Year: 2017
• Judgement Number: N6971

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 - Order 12, Rules 25, 26 & 27 and Order 12 Rules 28 and 32 - National Court Rules - entry of default judgment - discretionary matter for the court – relevant considerations.

PRACTICE & PROCEDURE - Service of Writ – Proof of – Effect of - Order 12, Rule 34 – 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 - Section 1(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) SC 518

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) SC 1435

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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