Two rules that every civil litigator in Papua New Guinea uses come from one short appeal about a default judgment in 1977.
The Government of Papua New Guinea and Davis v Barker [1977] PGSC 17; [1977] PNGLR 386; SC123
Supreme Court, Waigani — Frost CJ, Prentice DCJ and Kearney J, 26 October 1977.
What happened
Mr Barker sued the Government and two of its officers. They did not file a defence, and he entered judgment in default. The defendants applied under Order XXXI rule 15 of the then Rules of Court to set the judgment aside. Their application was prompt and came with an explanation for the default, but the supporting affidavit said nothing about any defence on the merits. Saldanha J refused it. The defendants appealed.
What the National Court held
In Barker v The State [1976] PNGLR 340, Saldanha J adopted the English practice: a regularly entered default judgment will not be set aside unless there is an affidavit showing a defence on the merits, a reasonable explanation for the default, and a prompt application. The application before him satisfied the second and third requirements but not the first.
Earlier the same year, in Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73, O’Leary AJ had held that the principal matter an applicant must show is a defence on the merits, sufficiently particularised to satisfy the court that it is reasonable for the defence to be raised, together with an explanation of the default, a prompt application, and regard to any prejudice to the other party.
What the Supreme Court decided
1. (Prentice DCJ, Frost CJ agreeing.) On an appeal against the exercise of a discretion, the appellate court may substitute its own discretion only if the judge below acted on a wrong principle, allowed extraneous or irrelevant matters to guide him, mistook the facts, or failed to take into account some relevant matter; and the decision is clearly wrong, or it otherwise appears that injustice might be done.
2. As a matter of practice, an application to set aside a default judgment regularly obtained should be granted only on an affidavit disclosing a defence on the merits. Green v Green followed.
3. Such an affidavit must set out statements of material fact sufficient to satisfy the court that the applicant has a prima facie defence and that it is reasonable to allow it to be raised.
4. The appeal was dismissed.
Did it make new law?
On default judgments the Supreme Court affirmed and applied the National Court’s approach in Green v Green and the decision under appeal, giving it the authority of the final court. On appeals against a discretion it stated the principle for Papua New Guinea for the first time, drawing on House v The King (1936) 55 CLR 499 and Evans v Bartlam [1937] AC 473. That second holding has had the longer life: it is the source later restated in Curtain Bros v UPNG (2005) SC788.
Why it matters
An apology and a good excuse are not enough. The affidavit must tell the court, in facts, what the defence is. Order 12 rule 35 of the National Court Rules now governs the application, but the three requirements from Barker and Green are still the test applied.
The court below has the discretion. To win, the appellant must show a defect in how it was exercised, not simply that a different judge might have decided otherwise. Later benches sometimes add a further limb: a result so unreasonable that error is inferred even though none is identified.
What it does not decide
Barker concerned a judgment regularly entered. A judgment entered irregularly, for example without proper service or before time had run, may be set aside as of right, and different considerations apply. The case also predates the current Rules, so the rule numbers it cites are historical.
Recent cases applying it
- Noko Yuku Development Corporation Ltd v Hela Provincial Government [2024] PGSC 32; SC2563 — quoted holding (1) as setting out when an appellate court may uphold an appeal against a discretionary order.
- Kuman v Kua [2021] PGSC 11; SC2077 — the Court recalled that it had “very early on” laid down the principle in Barker, and applied it to an appeal against a refusal to adjourn.
- Reference pursuant to Section 18(1) of the Constitution [2020] PGSC 12; SC1921 — Barker applied to an appeal against a single judge’s refusal of leave to intervene.
Sources
- The State and Davis v Barker [1977] PGSC 17; [1977] PNGLR 386 (Frost CJ, Prentice DCJ and Kearney J, 26 October 1977)
- Barker v The State [1976] PGNC 11; [1976] PNGLR 340 (Saldanha J)
- Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PGNC 26; [1976] PNGLR 73 (O’Leary AJ)
- National Court Rules 1983 — Order 12 rule 35
- Noko Yuku Development Corporation Ltd v Hela Provincial Government [2024] PGSC 32; SC2563; Kuman v Kua [2021] PGSC 11; SC2077; Reference pursuant to Section 18(1) of the Constitution [2020] PGSC 12; SC1921
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.