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Wata v Muddle [2018] PGNC 193; N7272 (5 April 2018)

N7272

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 867 OF 2017

BETWEEN
JAMES WATA
Plaintiff

AND
MR. GRANT R. MUDDLE, The Chief Executive Officer,
Port Moresby General Hospital
First Defendant

AND
PORT MORESBY GENERAL HOSPITAL
Second Defendant

AND
THE SECRETARY, DEPARTMENT OF HEALTH
Third Defendant

AND
THE INDEPENDENT STATE OF PAPA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2018: 5^th April

PRACTICE & PROCEDURE – Pre-conditions to granting default judgment – even where the conditions are met Court has a discretion to refuse the granting of the default judgment on good grounds.

Cases Cited:

Giru v Muta (2005) PGNC 83; N2877
Kanani v Warole (2001) PGNC 99; N2114
Tima v. Korohan (2006) PGNC 21

Counsel:

The Plaintiff in Person
Mr. Marere Ivaharia, for Defendants

5^th April, 2018

1. DINGAKE J: On the 19^th of April, 2018, I heard two applications, one by the plaintiff/applicant filed on the 30^th of October, 2017, in which the plaintiff/applicant sought a default judgement pursuant to Order 12 Rule 25 (1) of the National Court Rules and another by the second defendant seeking leave to file its defence out of time pursuant to Order 1 Rule 15 (1) and/or Order 7 Rule 6 (2) and/or Order 12 Rule 1 of the National Court Rules filed on the 24^th of November, 2017.
   
2. Upon hearing the parties, I refused to grant the default judgment sought and promised to give my reasons in due course.
   
3. These are my reasons.
   
4. The plaintiff was at all material times hereto an employee of the second defendant. He has sued the second defendants for alleged negligence and or unlawful termination resulting in his incurring special and general damages.
   
5. To succeed in an application for default judgment, the applicant must at very least meet the six pre-conditions set out in the case of Giru v Muta (2005) PGNC 83; N2877.
   
6. In this case, there is no doubt that the defendants having been duly served with the writ of summons and statement of claim and have failed to file both notice of intention to defend and the statement of defence in time.
   
7. The plaintiff’s notice of motion is in a proper form and he has properly served the defendants with the notice of motion and the affidavits in support.
   
8. As indicated, the plaintiff/applicant filed his notice of motion on the 30^th of October, 2017, and in the absence of notice of intention to defend he was not obliged to forewarn the defendants.
   
9. The plaintiff was also obliged, where the motion for entry of default judgement is more than two (2) weeks to conduct a fresh search no more than three (3) days before the motion is moved (Tima v. Korohan (2006) PGNC 21). This was not done.
   
10. Without an affidavit of search, entry of default judgment cannot be sustained (Kanani v Warole (2001) PGNC 99; N2114).
    
11. More significantly, if defendants seem to me that appear to have a good defence on the merits. In the circumstances, it is in the interest of justice that the allegations that under pin the applicant’s claim must be proved by evidence in a trial before judgment is given on the merits.
    
12. I have also considered the second defendant’s application to be granted leave to file a defence out of time.
    
13. As I have said earlier, the second defendant appears to have a good defence on the merits; the delay is not in ordinate and the explanation for the delay is reasonable.
    
14. In all the circumstances of this case, the interests of justice require that a default judgment be refused and the second defendant be allowed to file its defence and the matter proceed for trial.
    
15. In the premises:
    
    1. Entry for default judgment is refused.
       
    2. The second defendant is granted leave to file its defence within seven (7) days from today, the 17^th of May, 2015.

________________________________________________________________
The Plaintiff in Person
Ashurst Lawyers: Lawyers for the Defendants