MVIL is a large defendant with many claims and has, on the reported record, sometimes let the time for a defence pass. The rules that then apply are the general National Court Rules, with some MVIL-specific twists.
The time for a defence
A defendant has 30 days from service of the writ to give notice of intention to defend and a further 14 days to file a defence — 44 days in all. In MVIL v Joe [2007] PGSC 20; SC863 the Registry had refused to accept MVIL’s defence because its notice of intention to defend had been late. The Supreme Court held that Order 7 rule 6(2) and Order 8 rule 4 allow a defendant to file a defence “anytime within the total period of 44 days, regardless of whether he has filed a Notice of Intention to Defend”; a late notice of intention to defend does not extend the time, but nor does it shorten it. The Registry was wrong, and the default judgment that followed was set aside. The site’s National Court series explains default judgment and how to obtain it.
Entering default judgment against MVIL
Where the 44 days pass with no defence, the claimant may apply. In Anton v MVIL [2021] PGNC 422; N9194 a vehicle overturned on the Sumomin/Imbinis Road in April 2018, injuring nineteen passengers and killing seven. MVIL filed no defence. The court applied the Supreme Court’s checklist for default judgment — proof of service, proof of the default, a forewarning letter, a reasonable cause of action on the pleading — and entered judgment on liability in that action and in the related suits. The plaintiffs were passengers “owed a duty of care by the person behind the wheel”, and the pleading disclosed negligence.
A defence can also be lost part-way through. In MVIL v Paki [2006] PGNC 130; N3212, upheld in Paki v MVIL [2010] PGSC 2; SC1015, the defence of a liquidator sued by MVIL was struck out under Order 9 rule 15 for failing to give discovery of invoices, and judgment entered for damages to be assessed with indemnity costs; the same rule applies to MVIL if it defaults on discovery.
Default judgment settles liability only
- Damages must be proved. “Entry of default judgment on liability does not automatically entitle a plaintiff to damages as the damages must still be established on the evidence”: Pelen v MVIL [2026] PGNC 249; N11980, following MVIL v Kol [2007] PGSC 38; SC902. Special damages and economic loss without evidence were refused.
- The pleading is the limit. After default judgment “the statement of claim serves as proxy”; a head not pleaded cannot be assessed: MVIL v Kiangua [2015] PGSC 70; SC1476, striking out unpleaded funeral expenses.
- Liability defences are gone. MVIL cannot raise limitation, or any other defence to liability, on the assessment or on appeal from it: Kiangua.
In Yakupi v MVIL [2006] PGNC 214; N2981 the plaintiff “secured a default judgment” and the case proceeded to a full trial on assessment at which damages of K412,000 were found and the cap applied.
When a default judgment against MVIL will be set aside
Two MVIL-specific grounds recur. No section 54 notice. In Konga v MVIT [1995] PGNC 27; N1349 a default judgment was set aside as irregular because no notice of intention to make a claim complying with section 54 had been given; without it no action lay, so there was nothing to enter judgment on. Defective service. In Fraser v MVIT [1992] PGNC 25; N1089 the court held that personal service on a statutory corporation “must be strictly proved if interlocutory judgment is to follow”, that the Registrar entering judgment exercises a judicial function reviewable by a judge, and that with no proper evidence of service the judgment was set aside as of right, without regard to the merits of any defence. The general principles for setting aside a default judgment otherwise apply.
Summary judgment is not available
A claimant cannot short-circuit a personal injury claim by summary judgment even where MVIL’s defence looks hopeless. In John v MVIL [2022] PGNC 422; N9827 the court held that Order 12 rule 37 excludes claims for damages for personal injury, so “the Court lacks jurisdiction” to enter summary judgment, and the matter must go to trial. See what is summary judgment.
The other direction: dismissal for want of prosecution
MVIL applies more often than it defaults. Claims have been dismissed for want of prosecution after a year of inactivity (John v MVIL [2012] PGNC 175; N4867), after nine years from the accident with the plaintiff since deceased (Peter v MVIL [2020] PGNC 455; N8728), and where the five relevant considerations all favoured the defendant (Tani v MVIL [2010] PGNC 96; N3984). Others have survived where the delay was explained (Anda v MVIL [2015] PGNC 232; N6137) or the default was neither intentional nor inexcusable (Waink v MVIT [1997] PGNC 218; [1997] PNGLR 390). See dismissal for want of prosecution.
Sources
- National Court Rules — O 7 r 6, O 8 r 4, O 9 r 15, O 10 r 5, O 12 rr 24–37. See the National Court series.
- MVIL v Joe [2007] PGSC 20; SC863; Anton v MVIL [2021] PGNC 422; N9194
- MVIL v Paki [2006] PGNC 130; N3212; Paki v MVIL [2010] PGSC 2; SC1015
- Pelen v MVIL [2026] PGNC 249; MVIL v Kol [2007] PGSC 38; MVIL v Kiangua [2015] PGSC 70; Yakupi v MVIL [2006] PGNC 214
- Konga v MVIT [1995] PGNC 27; N1349; Fraser v MVIT [1992] PGNC 25; N1089; John v MVIL [2022] PGNC 422; N9827
- John v MVIL [2012] PGNC 175; Peter v MVIL [2020] PGNC 455; Tani v MVIL [2010] PGNC 96; Anda v MVIL [2015] PGNC 232; Waink v MVIT [1997] PGNC 218
Before relying on anything here, read the current text of the Motor Vehicles (Third Party Insurance) Act (Chapter 295) and check for later amendments. 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.