Tony Kagl Apa v Michael Pearson, Chairman of Teaching Services Commission and The Independent State of Papua New Guinea (2008) N3380

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ
• Judgment Date: 26 May 2008
• Court: National Court
• Citation: (2008) N3380
• Docket Number: WS NO. 725 OF 2007
• Year: 2008
• Judgement Number: N3380

Full Title: WS NO. 725 OF 2007; Tony Kagl Apa v Michael Pearson, Chairman of Teaching Services Commission and The Independent State of Papua New Guinea (2008) N3380

National Court: Injia, DCJ

Judgment Delivered: 26 may 2008

CIVIL – Practice and procedure - Default judgment - Proof of due service of Writ and default in filing Defence established- Grant of Default Judgment is discretionary- Proper grounds for exercise of discretion- Discretionary – Claim statute-barred - Action – saving provision not pleaded in Statement of Claim- National Court Rules, O12 r32; Limitations Act 1988, s16(1); Teaching Service Act 1988, s94.

Cases cited:

Kante Mininga v The State (1996) N1458; Bala Kitipa v Vincent Auali (1998) N1773; Anton Kaluni v Aiyale Warole (2001) N2114; Beecroft No 51 Ltd v Neville Seeto (2004) N2561; Urban Giru v Luke Muta (2005) N2877; Timothy Tima v Chief Inspector Thomas Korohan (2006) N3045; Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801

1. INJIA, DCJ: This is an application by the plaintiff for default judgment made under O12 r32 of the National Court Rules, on the basis that the defendants failed to file their Defence. It is not disputed that the Writ was duly served on the defendants, that the Solicitor - General filed a Notice of Intention to Defend on behalf of the defendants within time but that he failed to file their Defence. It is also not disputed that the Solicitor - General was forewarned of this application and he did nothing to rectify the default.

2. In the circumstances the plaintiff would be normally entitled to the benefit of default judgment. However, the grant of default judgment under O12 r 32 is discretionary. In the course of the hearing of this application, I raised the issue of whether the claim was statute-barred, a consideration which is relevant to the exercise of that discretion. This follows on from my first decision in Kante Mininga v the Independent State of Papua New Guinea (1996) N1458 and my subsequent decision in Bala Kitipa v Vincent Auali (1998) N1731. The principles in those cases have been adopted and applied in various decisions including Anton Kaluni v Aiyale Warole (2001) N2114; Deecroft No. 51 Ltd v Neville Seeto (2004) N2561, Urban Giru v Luke Muta (2005) N2887, Timothy Tima v Inspector Thomas Karoha (2006) N3045 and Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801. These cases affirm the principle that even when there is proof of due service of the Writ and the default relied upon, the Court may refuse to grant default judgment in a situation where the pleadings are so vague or do not...