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Kafafi v Victor [2022] PGNC 240; N9724 (14 June 2022)

N9724

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 960 OF 2018

BETWEEN:
MAX KAFAFI
(In his capacity as employee pursuant to section 40.5 of the Enterprise Agreement 2010 and member of the Third Plaintiff Union)
First Plaintiff

AND:
NUG MARTIN
In his capacity as President of the PNG Communication Workers Union, and signatory to the Enterprise Agreement 2010
Second Plaintiff

AND:
PNG COMMUNICATION WORKERS UNION
In its capacity as a party to the Enterprise Agreement 2010
Third Plaintiff

AND:
XAVIER VICTOR
as Acting CEO of Telikom (PNG) Limited
First Defendant

AND:
TELIKOM (PNG) LIMITED
Second Defendant

Waigani: Tamade, AJ
2022: 18^th February, 14^th June

PRACTICE & PROCEDURE – default judgment – seeking leave to set aside default judgment – principles applicable to setting aside regularly entered default judgement – defendant must satisfy the requirements to set aside default judgment.

Cases Cited

Sapuri v Kolly [2014] PGSC 5; SC1310

Counsel

Mr. John Napu,for the Plaintiffs
Mr. Simon Ketan, for the Defendants

14^th June, 2022

1. TAMADE, AJ: This is a ruling on the Defendants application seeking to set aside default judgment obtained by the Plaintiffs in this matter on 18 August 2019. The matter was heard on 18 February 2022, and I reserved a decision including making orders for the transcript of proceedings of the matter heard on 15 August 2019, whether the hearing for default judgment was heard inter parte and or otherwise.
   
2. The Defendants, therefore, seek in this matter that the default judgment entered on 15 August 2019 in this matter be set aside and that the Defendants be granted leave to file their defence out of time and for the removal of the Second and Third Plaintiffs as unnecessary parties to these proceedings.
   
3. The Plaintiffs however oppose the Defendant’s application and state that the Defendants are here before the Court seeking a second bite of the cherry so to speak as they were heard on the default judgment application on 15 August 2019. This is the basis why I have ordered a transcript of proceedings on 15 August 2019 to ascertain whether the hearing on 15 August 2019 was an inter parte hearing.
   
4. The parties have submitted that this is one of a set of other claims as against the Defendants in which orders of the Court were appealed against to the Supreme Court. The Defendants submitted that this matter should be heard with other related matters concerning other claimants as they concern the same subject matter.
   
5. Mr Ketan of the Defendants, therefore, state that the Defendants have met the requirements of the principles for the grant of setting aside an ex parte order that:
   
   1. The defendants have a defence on merit.
   2. The delay in filing the application to set aside is only about a month from 15 August 20019.
   100. There is a reasonable explanation as to why the judgement was allowed to be entered in default.
        
6. The requirements for the setting aside of a default judgement regularly entered is settled as in the case of Sapuri v Kolly [2014] PGSC 5; SC1310 (28 February 2014) which reiterated these principles that:
   

“In the face of a regularly entered default judgement, it was necessary, in order to enliven a discretion to set that judgement aside, for the defendants to satisfy the court that:

(a) there was a reasonable explanation for the judgement being allowed to go in default;

(b) the application to set aside the default judgement had either been made promptly or, if not, that there was a reasonable explanation for the delay; and

(c) there was a defence on the merits either in fact or in law (or both)”

7. Mr Napu of the Plaintiff has submitted that the Defendants have appealed against the default judgment orders made on 15 August 2019 however the appeal was withdrawn, and the Defendants are before the Court asking a second time for the setting aside of the default judgment when it was heard inter parte.
   
8. Mr Ketan however has submitted that he had communicated to Mr Napu on many occasions requesting that their client’s application seeking leave to file their defence out of time and the Plaintiff’s application for default judgment be adjourned until an appeal in the Supreme Court in related matters which would affect this matter be dealt with however Mr Napu had gone ahead to move his client’s application in Court when Mr Ketan was asking for an adjournment of the matter.
   
9. Having read the transcript of proceedings on 15 August 2019, it is clear that the hearing of the matter on 15 August 2019 was solely on the application for default judgment by the Plaintiffs. Mr Ketan had appeared and sought an adjournment of the matter however this was not entertained by the Court and the Court proceeded to enter a default judgment against the Defendants.
   
10. I am therefore of the view that the Defendants are therefore not seeking a second bite of the cherry so to speak, they are at liberty to seek orders for a set aside of the default judgment entered on 15 August 2019.
    
11. The Defendants, therefore, must meet the requirements for setting aside of a regularly entered default judgment.
    
12. Applying the principles for the setting aside of a regularly entered default judgment, I am satisfied that the delay in filing the Notice of Motion for the set aside was from 15 August 2019 to 6 September 2019 and therefore there was no serious delay.
    
13. I am also satisfied that there was a reason for allowing the default judgment to be so entered. The Defendants had sought an adjournment of the matter as they were not prepared and that they relied on what was understood to be an undertaking from Mr Napu that both applications for default judgement and an application seeking leave to file a Defence out of time would be heard together after the outcome of a related Supreme Court appeal matter however on the day the matter was listed, Mr Ketan was not aware and was therefore not prepared. Mr Napu, therefore, proceeded to move and obtained a default judgement to Mr Ketan’s disadvantage as Mr Ketan’s verbal application for adjournment was not granted.
    
14. I am also satisfied that on the evidence in support of the application, the Defendants do have a defence on merit. The Defence is as deposed to in the Affidavit of Mr Edward Apis filed on 9 September 2019.
    
15. The Plaintiff’s claim is for employee benefits arising out of an Enterprise Bargaining Agreement, other benefits arising as a result of being terminated from his employment with the Second Defendant and also seeks other reliefs as to declarations in relation to the said Enterprise Agreement amongst other orders
    
16. The Defendants have stated that they have a Defence on merit being that the Industrial Agreement referred to as the Enterprise Bargaining Agreement had ceased to exist and therefore the First Plaintiff has no claim as he is also not a financial member of the Workers Union. The Defendants also state that their Defence will show that the First Plaintiff was lawfully retrenched mongst other defences. To my mind, in the interest of justice, these are matters that the Defendant should be allowed to be heard in the matter by filing a Defence and the matter should be properly heard at trial. This matter should therefore proceed on to trial to be heard with other related matters that parties have submitted which are related.
    
17. As to the application to remove the Second and Third Plaintiff in this matter by the Defendants, I refuse to grant that application as to my mind the Second and Third Plaintiffs are named in regard to the substantive relief seeking declarations that relate to the Industrial Agreement.
    
18. I, therefore, make the following orders:
    
    1. Leave is granted to the Defendants to file their Defence within fourteen (14) days from the date of these orders.
       
    2. The application to remove the Second and Third Plaintiffs as parties to these proceedings is refused.
       
    3. This matter shall be heard together with the other related proceedings namely WS No. 1238 of 2018, WS No. 1432 of 2018, WS No. 988 of 2018, WS No. 954 of 2018 and WS No. 959 of 2018.
       
    4. Each party shall pay their own costs of this application.
       
    5. Time is abridged to the date of these orders to take effect forthwith.
       

Orders accordingly.
________________________________________________________________
Napu & Company Lawyers: Lawyers for the Plaintiff
Ketan Lawyers: Lawyers for the Defendants