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Karl v Motor Vehicle Insurance Ltd [2016] PGNC 342; N6560 (24 November 2016)

N6560

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 261 OF 2003

BETWEEN

MAIARI KARL

Plaintiff

AND

MOTOR VEHICLE INSURANCE LIMITED
First Defendant

Mount Hagen: Poole, J

2016: 24^th November

Counsel:

N/A for Plaintiffs
N/A for the State

Background

24^th November, 2016

1. POOLE J: In this matter the Plaintiff filed a Writ and Statement of Claim on the 6^th of March 2003 and, on the 27^th of March 2003, it was served on the Defendant. The Statement of Claim seeks damages allegedly arising out of a fatal motor vehicle accident at Madang on a date not pleaded in the Statement of Claim.
   
2. There was no Notice of Intention to Defend or Defence filed in the times specified in the rules and this was sworn to by a search clerk employed by the Plaintiff’s lawyers who searched the Registry on the 7^th of July 2003.
   
3. On the 25^th of August 2003 the National Court, on application by Motion made by the Lawyer for the Plaintiff, granted the Default Judgment and Ordered;
   
   1. Default Judgement is entered against the Defendant for damages to be assessed;
   2. The Defendant is Ordered to pay the Plaintiff’s cost of the Application;
   3. Leave is granted to the Plaintiff to set this matter down for Trial for assessment of damages.
4. The Plaintiff filed a Notice of set down for Trial on 20^th of February 2004 and since then has done nothing.
   
5. There was no evidence in support of the Plaintiff’s claim before the learned Judge who granted Default Judgment; only pleadings. The Plaintiff had filed no evidence and, as I have repeatedly said, lawyers must remember that pleadings are not evidence.
   
6. As there was no evidence to show the Plaintiff suffered any damage, the Default Judgment entered on the 25^th of August 2003 cannot stand and I Order it to be set aside.
   
7. As the Plaintiff has taken no steps in the litigation nor written to the Registry since the 20^th of February 2004, I dismiss the action for Want of Prosecution.
   
8. Formal Orders;
   
   1. The Default Judgment of the 25^th of August 2003 is set aside as it was entered without there being evidence of damage.
   2. The action is dismissed for Want of Prosecution
      

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Lawyers for the Plaintiffs : N/A
Lawyers for the Defendant : N/A