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Hewali v Ilau [2015] PGNC 301; N6603 (20 May 2015)

N6603
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1860 OF 2001

DANIEL HEWALI

Plaintiff

V

PETER ILAU, Commander of PNG Defence Force
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Kariko, J
2015: 19^th & 20^thMay

PRACTICE & PROCEDURE – application to dismiss proceedings after entry of default judgement – similar claim dismissed earlier in separate proceedings – abuse of process
– res judicata – court’s inherent jurisdiction to control proceedings – default judgement irregular

Cases cited:
Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085

Overseas cases:
Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 K.B 412 C.A

Legislation:
Claims By and Against the State Act 1996

Counsel:
Mr I David,for the Plaintiff
MrJ Kerenga, for the Defendants

RULING

20^th May, 2015

1. KARIKO J: The plaintiff claims negligence by the Department of Defence in failing to furnish reports to the National Apprenticeship and Training Testing Board (the Board) in relation to his training as an apprentice motor mechanic with the Department resulting in him not being able to be certified as a tradesman.

2. The plaintiff obtained an order on 25^th October 2003 for default judgement with damages to be assessed. After that time, there has been much delay in progressing the matter for varying reasons including a change of lawyers and several instances of the file “gone missing” in the Registry.

Issue

3. The matter was set down for trial in July last year but the trial date vacated and when the matter returned for directions hearing, the State raised the issue of whether the plaintiff’s current claim is the same as that in earlier proceedings (WS No. 1706 of 2001 – Daniel Hewali v The PNG Defence Force & The State) that was dismissed by Kandakasi, J on 27^th March 2002 for failure by the plaintiff to give proper notice under section 5 of the Claims By and Against the State Act 1996 (the Claims Act). That decision is reported at page 12 of the [2002] PNGLR. The Court was informed that records showed the State has never been served a section 5 notice in respect of the plaintiff’s claim against the Defence Force.

4. I then directed parties to file appropriate affidavit material to assist the Court determine the issue.

Evidence
5. The State filed an affidavit on 10^th September 2014 sworn by its counsel Miriam Kias while Michael Wilson of counsel for the plaintiff filed three affidavits:

• Affidavit sworn 11^th December 2014 and filed 12^th December 2014
• Affidavit sworn 19^th December 2014 and filed 7^th January 2015
• Affidavit sworn 11^th February 2015 and filed the same day
  

6. The state’s evidence is that the earlier proceedings (WS No. 1706 of 2001) was dismissed on 27^th March 2002 for failure by the plaintiff to give proper notice under section 5 of the Claims Act. Further, the records maintained by the Office of the Solicitor-General show the State has never been served a proper section 5 notice in respect of the plaintiff’s claim against the Defence Force.

7. The evidence for the plaintiff is that his claim was previously handled by the Office of the Public Solicitor, more particularly Russell Uware of that Office. The Public Solicitor applied successfully under proceedings OS No. 565 of 2000 on 10^th September 2001 for an extension of time to give the requisite notice to the State. After Kandakasi, J dismissed the earlier proceedings, the notice was duly served.

8. The current proceedings were filed on 22^nd November 2001. The Order of 10^th September 2001 formed part of the plaintiff’s case in proceedings WS No. 1706 of 2001 determined by Kandakasi J that section 5 notice had not been given. In those proceedings, the plaintiff relied on a letter dated 11^th September 2001 by the Public Solicitor to the Attorney-General as constituting the section 5 notice but that submission was rejected by his Honour. In the present matter, the plaintiff again relies on the same letter. Refer to paragraph 5 of Mr Wilson’s affidavit filed 12^th December 2014. Certainly there is no suggestion that another notice given after the letter of 11^th September 2001.

9. There is no indication in the judgement of Kandakasi, J, or in the affidavits referred to in this case or in the documents in the court file as to when WS No. 1706 of 2001 was filed but obviously it would have been a date between 11^th September 2001 (the date of the purported notice) and 27^th March 2002 (the date of Kandakasi, J’s decision)and that means the current proceedings were filed while those proceedings were pending, and that to my mind is a clear case of abuse of the process of the court. It would appear that after the dismissal of his claim by Kandakasi, J the plaintiff successfully obtained judgement in his favour by the entry of default judgement on liability ordered against the State on 25^th October 2003 – some 19 months after Kandakasi, J dismissed his claim. That judgement was irregularly made as no section 5 notice had been given to the State and the matter was res judicata as Kandakasi, J had determined the same claim in WS No. 1706 of 2001.

The law

10. The Court has an inherent jurisdiction to control proceedings before it; Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 where his Honour Injia, J (as he then was) stressed that the Court must ensure proceedings are conducted fairly and in an orderly fashion and timely manner so justice is done. The Court shall therefore weed out claims that are an abuse of process or for irregularity. His Honour went to state that the Court may exercise that discretion on its own initiative for it is open to the Court to raise and determine questions concerning the regularity or competency of proceedings at any stage.

11. His Honour then referred to the overseas case of Muir v. Jenks [1913] UKLawRpKQB 82; [1913] 2 K.B 412 C.A and held that the delay of 7 years (before application was made to set aside default judgement) was irrelevant because the matter was statute-barred and ought not to have been filed. Default judgment was obtained on irregular proceedings.

Conclusion

12. I apply the principles promulgated by his Honour and in the exercise of this Court’s inherent jurisdiction to prevent an abuse of its processes, I order that:

(1) default judgement ordered in this matter on 25^th October 2003 is set aside as irregularly obtained.
(2) These proceedings are dismissed in its entirety as an abuse of process.

The Public Solicitor: Lawyer for the plaintiff
The Solicitor-General: Lawyer for the defendants