Kulala v Simanjon [1998] PGDC 21; DC44 (10 December 1998)

Unreported District Court Decisions

[1999] PNGDC 5 - ROM KULALA & OTHERS V BEN SIMANJON & OTHERS

[1999] PNGDC 5

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 253 OF 1998

PARTIES:  ROM KULALA, WALTER SAUL, MATHEW LEM AND PETER SUMAYANG (INFORMANT)

V

BEN SIMANJON, PROVINCIAL POLICE COMMANDER AND FRANCIS ULINGER, KINIM POLICE STATION COMMANDER AND INDEPENDENT STATE OF PAPUA NEW GUINEA

DEFENDANT

Madang

Bidar PM

10 December 1998

DISTRICT COURT — Practice and procedure — Application to discharge, vacate and or revoke — Court Order — two orders — An interim ex parte order and final order where all parties represented by counsel — Interim Order not in existence when final orders entered.

DISTRICT COURT — Practice and Procedure — District Court — Creature of Act of Parliament — District Court Act (Ch40) — Proper Procedure — Application to set aside default judgment to be distinguished from other applications.

Cases Cited

Green and Co Pty Ltd v Green [1976] PNGLR 73

George Page Pty Ltd v Malipu Bus Balakau trading as Kokope Enterprises [1982] PNGLR 140

Government of PNG and Davis v Barker [1977] PNGLR 386

Mapmakers Pty Ltd v Broken Hill Proprietary Co Ltd [1987] PNGLR 78

Legislation cited

District Court Act (Ch40) s22

National Court Rules O12 r3(a)

Representation

Counsel/Representative

Informant:  Mr Sam Bonner

Defendant:  No appearance by or on behalf by or on behalf of Respondents

Lawyers/Representative

Informant:  Sam Bonner, Police Department Legal Officer

10 December 1999

BIDAR PM:

N1>[1]      This was an application by defendants (applicants) by way of notice of motion pursuant to s22 of the District Court Act (Ch40) and O12 r3(a) of the National Court Rules, seeking the following orders.

N2>"1.      That the order entered on 29 July 1998 be discharged or vacated and or revoked forthwith.

N2>2.       That in the alternative, the order be set aside forthwith.

N2>3.       That proceedings D/C No: 253 of 1998 be re-listed for hearing within seven (7) days forthwith.

N2>4.       Costs of the proceedings.

N2>5.       Such other orders the Court deems fit."

N1>[2]      It is necessary to state the background of this matter to appreciate the nature of the application and the orders sought.

N1>[3]      Mr Peter Yama was a candidate in the last National Elections. He contested Sumkar Open Seat. Sumkar stands for Sumgilbar and Karkar Councils and covers North Coast and Karkar. Mr Yama alleged to Police that certain electoral offences were committed by certain people including the respondents in this application. The Police acting on those allegations by the applicants and led by the Provincial Police Commander, Mr Ben Simanjon commenced investigations into the allegations at Karkar Island.

N1>[4]      The complainants, respondents in this application—sought and obtained restraining orders in this Court, which prevented or restrained the Provincial Police Commander and his men from carrying out any investigations.

N1>[5]      On 29 July 1998, this Court heard respondent's application. Lawyers on record were Mr Lucas Senar and Chief Inspector Richard Saranduo, Police Legal Officer.

N1>[6]      The Court granted interim restraining order which was returnable on 19 August 1998. Parties were duly served of the return date. On 19 August 1998 Mr Senar appeared for complainants (respondents in this application) and Chief Inspector Saranduo for defendants (applicants in this application).

N1>[7]      After receiving oral sworn and affidavit evidence from complainants (respondents), and it seems defendants (applicants) did not give any evidence, the Court granted the orders brought by complainants (respondents).

N1>[8]      On record, the interim restraining orders lapsed on 19 August 1998. Effectively, in my view, there no longer exists any ex parte orders. The only order in existences is the permanent restraining order entered on 19 August 1998, in which all parties were represented by counsel.

N1>[9]      In my view, the present application is misconceived and erroneous.

N1>[10]    Application to set aside default judgment is distinguished from other applications. S25 of the District Court Act empowers Court to set aside ex parte orders or convictions.

N1>[11]    S25 in these terms:

"A convictions or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, the Court on service on the other party of such reasonable notice as the court directs, may:

(a)      proceed to hear and determine the information or complaint or order was made; or

(b)      adjourn the hearing and determination of the hearing to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party."

N1>[12]    The Law in relation to application or motion to set aside default or ex parte judgments or orders is settled in this jurisdiction.

N1>[13]    Only judgments irregularly obtained or entered are set aside under ex debitio justitiae principle (as required by interest of justice).

N1>[14]    This would include party not served the Court process or judgment entered despite filing of defence.

N1>[15]    For judgments regularly obtained, it is for the applicant to establish why it ought to be set aside. To do so, the applicant by affidavit evidence advance reasonable explanation why judgment was allowed to go by default, and explanation why there is a delay in bringing the application and provide material adverting to a defence on merits.

N1>[16]    See Green & Co v Green [1976] PNGLR 73; George Page Pty Ltd v Malipu Balakau [1982] PNGLR 140; Government of PNG and Davis v Barker [1977] PNGLR 386; Mapmakers Pty Ltd v Broken Hill Proprietary Co Ltd [1987] PNGLR 78.

N1>[17]    In this application, applicants rely on s22 of the District Court Act and O12 r3(a) of the National Court Rules.

N1>[18]    S22 provide general ancillary jurisdiction.

"Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it:

(a)      grant such relief, redress or remedy or combination of remedies whether absolute or conditional; and

(b)      give the same effect to every ground of defence or counter claim or equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner."

N1>[19]    O12 r3(a) is in these terms:

"The Court may on terms set aside or vary an order:

(a)      where the order has been made in the absence of a party. Whether or not the absent party is in default of giving notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order."

N1>[20]    In my view, National Court Rules, as the name speaks for itself applies to National Court, not District Court. The District Court is a creature of an Act of Parliament and as such it derives its jurisdiction from the enabling Act. S5 vests jurisdiction of the Magistrates under the District Court Act and any other law which confers jurisdiction.

N1>[21]    Unlike the National Court, the District Court is not vested with inherent jurisdiction. Counsel's submissions based on the National Court Rules are rejected outright.

N1>[22]    Counsel's other submission, that orders entered on 29 July 1998 were irregularly entered, is also rejected. Earlier I alluded to the fact that the interim restraining order entered on 29 July, ceased on 19 August 1998. That order no longer exists. In my view, the applicant's only option is to seek leave of the National Court to lodge an appeal out of time.

N1>[23]    In the final analysis, there is no way this application can succeed. I refuse the motion by applicants.

N1>[24]    Motion refused. I order no costs in this proceedings.

Lawyer for the Applicants:  Sam Bonner, Police Department Legal Officer

No appearance by or on behalf of Respondents