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Giko v Hannon [2021] PGNC 434; N9289 (27 October 2021)

N9289

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1433 OF 2018
BETWEEN:
BIBI GIKO
Plaintiff

AND:
DAVID HANNON as the Chief Executive Officer of New Guinea Highlands Coffee Exports Limited
First Defendant

AND:
NEW GUINEA HIGHLANDS COFFEE EXPORTS LIMITED
Second Defendant

Goroka: Mugugia, AJ
2021: 27^th October

PRACTICE AND PROCEDURE – Plaintiff’s application for default judgement - failure to file defence - National Court Rules, Order 12, Rule 25(b) and Order 12, Rule 28, and Section 155(4) of the Constitution relied on – whether default judgment should be entered against the Defendants – considerations – exercise of discretion - default judgment entered against the Defendants.
Cases Cited:

Giru v. Muta (2005) N2877
Bank South Pacific Ltd v Tingke (2012) N4901

Counsel:

S. Ifina, for the Plaintiff
No appearance for the Defendants

RULING

27^th October, 2021
1. MUGUGIA, AJ: The matter returned before me on 27^th October 2021 for the hearing of the Plaintiff’s notice of motion filed on 20 September 2021, seeking default judgment to be entered against the Defendants, and the Defendants’ notice of motion filed on 13 September 2021, seeking dismissal of the proceedings for want of prosecution, and, alternatively, for leave to be granted to file and serve a Defence.

2. Both motions had come before me for hearing on 24 September 2021 and 13 October 2021 respectively, and were adjourned. On both occasions, the Defendants were represented in Court. There was no representation for the Defendants at the hearing on 27 October 2021. I was satisfied that the Defendants’ lawyers were aware of today’s return date. I allowed the Plaintiff’s lawyer to make his client’s application. This is my ruling on the application.

BACKGROUND

3. The Plaintiff was employed by the Second Defendant as an accountant. The Plaintiff and the Second Defendant signed a contract of employment on 23 November 1993 which contained the terms and conditions of his employment. The Plaintiff received a termination notice from the First Defendant on 16 November 2012 effectively terminating his employment. The Plaintiff filed his writ of summons on 14 November 2018, claiming damages for unlawful and/or unfair dismissal. A sealed copy of the writ of summons was served on the Defendants on 15 November 2018. The Defendants filed a notice of intention to defend on 21 November 2018. They did not file their Defence within the required time.

ISSUE
4. The issue for determination is whether default judgment should be entered against the Defendants.

JURISDICTIONAL BASIS

5. The jurisdictional basis stated in the Plaintiff’s motion are Order 12 Rule 25(b), and Order 12, Rule 28 of the National Court Rules, and Section 155(4) of the Constitution.

6. Order 12 Rule 25(b) reads:

“25. Default.

A defendant shall be in default for the purposes of this Division—

......

(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”

7. Order 12, Rule 28 reads:

“28. Unliquidated damages.

Where the plaintiff's claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgement against that defendant for damages to be assessed and for costs.

8. Sections 155(4) of the Constitution states that both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

PLAINTIFF’S SUBMISSIONS

9. In making his client’s application, the Plaintiff’s lawyer relied on the following affidavits:

i) Affidavit in Support of Bibi Giko filed on 20 September 2021;

2. Affidavit of Service of Notice of Motion of Samuel Ifina filed on 24 September 2021;
3. Affidavit of Search of Samuel Ifina filed on 20 September 2021; and
4. Affidavit of Service of Forewarning Letter of Samuel Ifina filed on 20 September 2021.
   

10. The Plaintiff’s lawyer relied on his submissions filed in Court on 4 October 2021. In summary, the Plaintiff’s submissions were:

• The writ of summons filed on 14 November 2018 was properly served on the Defendants on 15 November 2018. The affidavit of service of the writ was filed on 19 November 2019.
• The Defendants, through their lawyers, filed a notice of intention to defend on 24 November 2018.
• A Court file search was conducted on 13 August 2021. The Affidavit of Search of Samuel Ifina filed on 20 September confirms the Court file search that was done.
• On 16 August 2021, a forewarning letter was served on the Defendants’ lawyers. The Affidavit of Service of Forewarning Letter filed on 20 September 2021 confirms service.
• A draft order for default judgment is provided by the Plaintiff.
  

CONSIDERATION

11. The case of Giru v. Muta (2005) N2877 sets out six pre-conditions that should be considered in an application for default judgment. These pre-conditions are:

1. Proper form.
2. Service of notice of motion and affidavits.
3. Default.
4. Warning.
5. Proof of service of writ.
6. Proof of default.

12. In this case, Cannings J held that if all items on the checklist are satisfied, the matter is ripe for entry of default judgment. However, a plaintiff is not entitled to default judgment as of right. Entry of default judgment is a matter for the discretion of the court.

13. In Bank South Pacific Ltd v Tingke (2012) N4901, Kandakasi J (as he then was) stated at paragraph 6 of his decision, and I quote:

“Whether default judgment should be entered is dependent on the following factors of whether or not:

(a) the writ of summons with a statement of claim endorsed thereto has been duly served on the defendant; and

(b) the time period for filing of the defendant's defence has expired; and

(c) the defendant has not filed and served his or her defence; and

(d) a search of the court file has been carried out at the expiry of the deadline for the filing of the defence which has revealed no defence being filed; and

(e) the plaintiff has forewarned the defendant of the plaintiff's intention to apply for default judgment where a notice of intention to defend has been filed; and

(f) the defendant has not filed and served his or her defence.”

14. I adopt the statements made by the learned judges in the two cases referred to above, and the principles enunciated in the cases, and apply them in this particular case.

15. In the present case, I find that the six pre-conditions on the check-list that should be considered in an application for default judgment have been fully satisfied by the Plaintiff. I find that:

1). The Plaintiff’s motion was supported by an affidavit of Bibi Giko filed on 20 September 2021, deposing to the Defendants’ default. The notice of motion for default judgment is in the proper form. It is supported by affidavit.

2). Both the motion and affidavit in support were served on the Defendants’ lawyer on 21 September 2021. Samuel Ifina’s Affidavit of Service filed on 24 September 2021 confirms the service of the motion and affidavit in support.

3). A search of the court file has been carried out by the Plaintiff after the expiry of the deadline for the filing of the defence which has revealed no defence being filed by the Defendants. The Plaintiff filed an affidavit of search to confirm that the Court file search was done.

4). The Defendants are clearly in default because no defence was filed.

5). The Plaintiff’s lawyers warned the Defendants. The Plaintiff’s affidavit in support of the motion shows that a letter dated 16 August 2021 was served on the Defendants’ lawyers on 18 August 2021. Annexure “F” in the Affidavit in Support of Bibi Giko is the Proof of Service Form which confirms the service of the forewarning letter.

6). The Plaintiff’s writ of summons was duly served on the Defendants on 15 November 2018. The Affidavit of Service of Bibi Giko filed on 19 November 2018 confirms service of the writ. The Plaintiff has done what is required under Order 12, Rule 34(a) of the National Court Rules.

7). The time period for filing of the Defendants’ defence has expired, and the Defendants did not file a defence within the required time. Bibi Giko confirmed in his affidavit in support filed on 20 September 2021 that the time to file defence lapsed on or around 30 December 2019. This affidavit proves the default upon which the Plaintiff relies.

CONCLUSION

16. This is a case where the Defendants are in default because they were required to file a defence, and the time for them to file their defence had expired but they had not filed their defence. The basis on which the application was made is on account of their default under Order 12 Rule 25(b) of the National Court Rules. The Defendants have clearly defaulted.

17. I am convinced that the Plaintiff has made out a case for default judgment to be entered against the Defendants for failure to file a defence. I exercise my discretion and enter default judgment against the Defendants.
FORMAL ORDERS

18. I make the following orders:

1. Default judgment is hereby entered against the Defendants, with damages to be assessed.

2. Costs is awarded against the Defendants.

3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.
The Court orders accordingly.
________________________________________________________________
S. Ifina: Lawyer for the Plaintiff