Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Perua v Malko [2024] PGNC 364; N11009 (21 September 2024)

N11009

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 453 OF 2018

BETWEEN
ARTHUR PERUA as next friend of Infants BARBARA RICHARD and BETTY RICHARD
Plaintiff

AND
NORTON MALKO
First Defendant

AND
GARRY BAKI, Commissioner of Police
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Alotau: Toliken J
2024: 21^st September

PRACTICE AND PROCEDURE – motion to set aside order for mediation, strike out defence and enter judgment on admission – National Court Rules, Order 8 Rules 21, 27; Order 9 Rule 30; Order 12 Rule 1.

Cases Cited:
Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees Ltd (2006) SC837
PNG Forest Products Pty Ltd and Inscap Berhad v State [1992] PNGLR 85
Daniel v Pak Domoi Ltd (2009) SC790
Metal Refining Operations Ltd v Group 4 Securico International Pty Ltd (2010) N4069
Imawe Bogasi Land Group Inc. v Bank South Pacific Limited and Toale Hongiri ILG & ORS (2011) SC1102
Smith Alvi v Andake Tepoka (2005) SC1151
The State v Malko (2018) N7606

Counsel:

T Ilaisa, for the Plaintiff
M Tukiliya, for the Defendants

JUDGMENT

21^st September 2024

1. TOLIKEN J: By Notice of Motion filed on 24 July 2019, the Plaintiff sought the following orders:
   
   • (1) The orders of the court made on 22 July 2019 ordering the matter for mediation be set aside pursuant Order 12 Rule 1 of the National Court Rules.
   • (2) Pursuant to Order 8 Rule 27 of the National Court Rules, the Third Defendant’s Defence filed on 16 July 2018 be struck out for being frivolous and vexatious or for not disclosing a reasonable defence.
   • (3) Consequential order pursuant Order 12 Rule 1 of the National Court Rules for judgment to be entered against the Defendants with damages to be assessed.
   • (4) In the alternative, judgment to be entered pursuant to Order 8 Rule 21(1) and (2) and Order 9 Rule 30 of the National Court Rules.
   • (5) Further and in the alternative, judgment to be entered pursuant to Order 9 Rule 30 for admissions on liability made by the Third Defendant on behalf of all Defendants.
   • (6) Costs of the application
     

Background Facts

2. The Plaintiff filed a dependency claim as best friend to two infants whose mother was killed in a motor vehicle accident on 30 July 2015. The vehicle, a Toyota Landcruiser bearing the Registration No. ZDP 304 and registered to the Department of Police was driven by the First Defendant who at that time was on official duty. He was criminally charged and prosecuted for dangerous driving causing death. He pleaded guilty and was sentenced to a term of imprisonment on 6 December 2018 (The State v Malko (2018) N7606). The Plaintiff had earlier that year filed the current proceeding from which this Notice of Motion stems. The State is named as the Third Defendant and is sued in its vicarious capacity as employer of the First Defendant and Second Defendants.
   
3. Only the Third Defendant filed its Defence which adequacy is now challenged by the Plaintiff.
   
4. In his Motion the Plaintiff seeks principally to set aside the orders for mediation and Third Defendant’s Defence be struck out. The other two relief are sought in the alternative.
   
5. The issues for determination are:
   
   • (1) Whether the orders for mediation ought to be set aside.
   • (2) Whether the Third Defendant’s Defence ought to be struck out.
   • (3) Whether judgment on admission should be directed against the Defendants.

Whether to set aside Orders for mediation

6. I will deal with the Plaintiff’s application to set aside my orders referring the matter for mediation.
   
7. I heard submission from counsel. Mr. Ilaisa essentially submitted that given the position the Third Defendant had taken – by filing a defective defence particularly on the question of liability – where it did not traverse the Plaintiff’s claim within the meaning of Order 8 Rule 21 of the National Court Rules (the Rules). The effect there is that the Plaintiff’s pleading stand admitted. Counsel further submitted the Third Defendant had admitted through email correspondence that the Defendants are liable and therefore judgment on admission may be entered pursuant to Order 9 Rule 30 of the Rules. As liability will have been settled by such admission, a settlement of quantum may be possible with the necessity for mediation as ordered by the Court.
   
8. I agree with Mr. Ilaisa and therefore grant the first relief sought by the Plaintiff. I therefore set aside my orders of 22 July 2019 ordering the matter to go to mediation.
   

Whether to strike Defendant’s Defence

9. I now turn to the next issue – whether to strike out the Third Defendant’s defence.
   
10. The power to strike out a defence is provided by Order 8 Rule 27 which relevantly provides:
    

27. Embarrassment, etc

(1) Where a pleading –

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the proceeding be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

11. Order 12 Rule 27 is aimed at pleadings (causes of action or defences) which are incontestable bad and cannot possibly succeed or be cured by amendment. (PNG Forest Products Pty Ltd and Inscap Berhad v State [1992] PNGLR 85).

12. A defendant is allowed to traverse the plaintiff’s pleading by Order 8 Rule 21 but where he does not then those pleadings stand admitted and judgment may be entered on those admissions pursuant to Order 9 Rule 30.

13. According to the Supreme Court in Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees Ltd (2006) SC837 held that in traversing a plaintiff’s pleadings, it is sufficient for the defendant to use words and phrases such as “denies” or “does not know and therefore cannot admit to” or “the defendant is not required to plead to.”

14. Did the Third Defendant sufficiently traverse the Plaintiff’s statement of claim? Furthermore, did it plead any legal defence? I agree with Mr. Ilaisa that it did not despite Mr. Tukilia’s strenuous argument that the defence was a valid one. In fact, the defence was not a defence at all. It repeatedly – in answer to the Plaintiff’s statement of claim – employed such phrases like:

• “The Plaintiff is to prove his intended claim against the Third Defendant.” (para. 7)
• “The First Defendant can admit or deny or respond to such allegations contained therein.” (paras. 8, 9, 14,15 and 16)
• “The Plaintiff has an onus to prove such allegation.” (Paras. 10, 100, 12, 13, 17, 18, 19, 20 and 21).
  

15. I find and accept that these statements in the Third Defendant’s purported Defence are latently and fatally defective as they offend against the rules in pleading to or traversing the Plaintiff’s pleadings. They offend against both Order 8 Rule 21 and Orders 8 Rule 27. They do not assist the Court and the Plaintiff in identifying the factual and legal issues for trial. Furthermore, I agree with Mr. Ilaisa that, at best, they are submissions. The Defence should be struck out and accordingly strike it out.

Whether to Direct Judgment on Submission
16. The Plaintiff sought for an order to direct judgment on admission pursuant to Order 9 Rule 30. This Rule provides:

30. Judgement on admission

(1) Where admission are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct entry of any judgement or make any order to which the applicant is entitled on the admission.

(2) The Court may exercise its power under Sub-rule (1) notwithstanding that other questions in the proceedings have not been determined.
17. The Court must be slow to exercise its discretion to direct entry of judgment on admission under Order 9 Rule 30. Judgment may be entered against a party where admissions are made by that party in his pleadings or otherwise. The phrase “otherwise” covers other circumstances where admissions are made by the party such as affidavits, letters or answers to interrogatories. The admissions must, however, show a clear and unanswerable case, or they must be strong or unambiguous (Daniel v Pak Domoi Ltd (2009) SC790). For judgment by admission to be granted, an applicant must also provide reasons and not merely assume that the court will grant the relief. This is to help the court to determine why and how it is to exercise its discretion. (Metal Refining Operations Ltd v Group 4 Securico International Pty Ltd (2010) N4069). Where there are serious issues of law and fact raised either in the defence or in the pleadings, summary judgment should not be granted (Imawe Bogasi Land Group Inc. v Bank South Pacific Limited and Toale Hongiri ILG & ORS (2011) SC1102).

18. It was submitted on behalf of the Plaintiff that admissions of liability of the Defendants including the Third Defendant were communicated by email to the Plaintiff’s Lawyers by Mr. Mike Pepi of the Solicitor General’s Office who initially was in carriage of the matter for the Defendants.

19. The Plaintiff relies on the affidavit of Ms Emeteria Waeda – a lawyer in the employ of the Public Solicitor who was in carriage of the Plaintiff’s case - sworn and filed on 24 July 2019. Ms Waeda deposed to serving a letter on the Third Defendant (Annexure “A”) in response to the Third Defendant’s Defence which was filed on 16/07/2019. Ms. Waeda pointed out that the Defence neither pleaded nor traverse the factual allegations in the Plaintiff’s statement of claim and therefore defective. She further forewarned that she had instructions to file an application to strike out the Defence.

20. Mr. Mike Pepi, the lawyer then in carriage for the Third Respondent responded on 11 July 2019 (Annexure “B”) saying essentially that the State maintained its Defence. Mr. Pepi, however, sent another email the next day 12 July 2019 (Annexure “C”). He said that upon instructions from the First Defendant, the Defendants are liable for negligence.

21. Based on those instruction Mr. Pepi proposed to file an application seeking leave to file an amended Defence admitting liability. His email pertinently read:

“For your noting on the above matter, I sought instructions already on the above matter and based on the instruction of the first defendant, the defendants are liable for the negligence.

I am of the view to file an application for amended defence out of time and request that you consent on the Amended Defendant’s Defence admitting liability. Then we go for direction to allow for trial for assessment of damages or we can go for offer or counter offer to settle the claim based on appropriate principles and then consent on the amount to endorsed by the court which can allow for the facilitation of the payment to the plaintiff quickly.” (sic.)
22. On 15 July 2019, Ms Emeteria by letter of even date (Annexure “D”) acknowledged, the Third Defendant’s admissions on liability and its proposal to file an amended Defence.

23. However, in a hand-delivered letter dated 19 July 2019 (Annexure “E”) the Third Defendant retracted the position communicated to the Ms. Emetaria by Mr. Pepi. It shifted liability to the First and Second Defendants and maintained its Defence.

24. I heard both Mr. Ilaisa for the Plaintiff and Mr. Tukiliya for the Third Defendant and I find that the Third Defendant’s defence of its current position to be indefensible given that I have struck its Defence for the reasons I stated for doing so.

25. There is no question that the Third Defendant initially admitted liability on behalf of all defendants. That admission was subsequently withdrawn. This change of position came as a surprise to the Plaintiff’s lawyers who had been led along to believe Mr. Pepi’s communication that the Defendants will admit liability. Mr. Pepi’s communications of admission of liability were not expressed “Without Prejudice” or in “Confidence” hence the Plaintiff’s lawyers were led to believe that that was in fact the State’s true position. A “Without Prejudice” or “Confidential” communication would have at least forewarned the Plaintiff that the Defendants may revert to their original position.

26. There is no evidence from the Third Defendant on whose instructions it acted on when retracting its admission of liability through Mr. Pepi. The letter of 19 July 2019 was signed by a Melinda Mai on behalf of the Solicitor General which is normal; practice. However, when instructions changed the least one can do is advise one’s opposing friend as a matter of courtesy the source of your instructions. Lawyers cannot instruct themselves as correctly submitted by Mr. Ilaisa.

27. It is for that reason that the Supreme Court in Smith Alvi v Andake Tepoka (2005) SC1151 at [22], where a lawyer had instituted proceedings without instructions said:

“A related and basic principle of the administration of justice and of a proper lawyer/client relationship is that lawyers act only on instructions of their clients. Instructions may be express or implied, oral or in writing; but there must be instructions in place. If there are no instructions, whatever the lawyer does must be regarded as being more than authority. Many PNG cases have highlighted this principle.”

28. In the instant case, we may never know who gave instructions to the Solicitor General to retract its previous communication through Mr. Pepi because no evidence was forthcoming from the Third Defendant.

29. Mr. Ilaisa submitted that the Third Defendant should be estopped from retracting its admission of liability. This should result in entry of judgment on admission pursuant to Order 9 Rule 30 of the Rules.

30. I agree with Mr. Ilaisa that the Third Defendant should be estopped from retracting its admission of liability. Since its Defence has been struck out it really has no legs to stand on as it were.

31. I therefore direct the entry of the following orders:

1. The orders of the Court of 22 July 2019 ordering the matter for mediation is set aside pursuant to Order 12 Rule 1 of the National Court Rules.
2. Pursuant to Order 9 Rule 30 of the National Court Rules judgment on admission is entered against all Defendants.
   3. The matter shall proceed to assessment of damages.
   4. Costs shall be in the cause.
      

Ordered accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
State Solicitor: Lawyer for the Defendants