Awalua v Koi [2000] PGDC 3; DC68 (6 March 2000)

Unreported District Court Decisions

[2000] PNGDC 7 - GREGORY AWALUA V MOKAL KOI

[2000] PNGDC 7

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO 176/1999

BETWEEN

GREGORY AWALUA

COMPLAINANT

V

MOKAL KOI

DEFENDANT

Port Moresby

Geita SM

6 December 1999

24 January 2000

8 February 2000

17 February 2000

6 March 2000

PRACTICE AND PROCEDURE – Application to set aside ex-parte order – S.25 District Courts Act (Chapter No.40) – Lawyers failure to prosecute complaint diligently – Judgement regularly entered – Justice delayed amounting to abuse of process.

Counsels

Philip Ame for Complainant

Simon Ketan for Defendant

REASONS FOR DECISION

GEITA M:  This is another one of those long drawn out cases spanning over thirteen (13) months from the time the complaint was first filed.

On 28th April 1999 Default Judgement was regularly entered together with costs and interest for the complainant.  About three (3) months later on 28th July 1999 the default judgement was set-aside and the process of mentions, listings and trial dates set in motion again.

CHRONOLOGY OF EVENTS

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Defendant not present.

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Matter set for Ex-parte Hearing

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3.

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Defendant not present

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Set for Ex-parte Hearing.

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Simon Ketan for defendant not present.

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Simon Ketan for defendant not present.

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Costs granted to Complainant.

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15.

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Trial vacated yet again.

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Complainant in person

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2.00 PM Case resume for decision.

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Court:  Defence Counsel’s letteed 18th February 2000 was received on 17th February at 1.30pm and Clerk of Court advisedvised to inform defence.

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Despite this information, Defencnsel and defendant failed to appear for Ex-Parte Trial.

<

1.	23rd February 1999	Summons Upon Complaint filed and served.
2.	18th March 1999	David Keta for complainant present.
/td>
/td>
06th April 1999	Simon Ketan for Complainant present
	Defendant not present.
	Matter set for Ex-partring
4.	13th April 1999	Simon Ketan for complainant present
	td>	lass=MsoNormal>Defendant nont not present
	d>	ass=MsoNormal>Matter set foet for Ex-parte Hearing.
5.	22nd April 1999	Complainant present
td>
d>
6.	28th April 1999	Complainant present
		Defendantndant not present
		Default Jult Judgement Entered with costs and interest.
>	Warrant of Exef Execution to issue.
7.	28th July 1999	Application to Set Aside Ex parte
	d>	Order of 28th Apri9.
		Application Graand Order Set
	Aside and matter set for mention.
8.	4th August 1999	Complainant present
	<	Defendanendant present
	d>	ass=MsoNormal>Defence filedfiled.
9.	18th August 1999	Complainant present
	<	Defendanendant present
	d>	ass=MsoNormal>Notice to filo file Cross-claim
10.	25th August 1999	Phillip Ame for Complainant present
	/td>	Defendant aant and Counsel – Simon Ketan not present.
Ame apply for Defr Default Judgement.
11.	2nd September 1999	Phillip Ame for Complainant
		Simon Ketan for Defe
	td>	Adjourned for Trip>
12.	20th September 1999	Phillip Ame for Complainant
	13.	4th October 1999	Phillip Ame for Complainant
td>
		New Triw Trial date set.
14.	21st October 1999	Phillip Ame for Complainant
<	By Counsel (not minuted)
Trial vacated yetd yet again
<	Parties not read ready.
28th November 1999	No minutes.
16.	6th December 1999	Complainant in person
	Simon Ketan for defendant
	Apply for extended adjent as he will be away on leave.
		p class=MsoNormal>Trial datl date set.
17.	24th January 2000	Complainant in peson
	rmal>Simon Ketan for defendant
'>	Cross - claim not yet filed and ask for two (2) weeks adjournment
	Complainant expt expresses eagerness for case to be tried its taking too long.
/td>
18.	7th February 2000	Set for Listing
		p class=MsoNormal>Stood-oved-over to 8th February 2000 due to magistrate attending opening of Legal Year Service.
19.	8th February 2000	Complainant in person
	Simon Ketan not presen is defendant.
	Complainant. “The matter has been prolonged for twelve (12) months now.  I want my earlier order re-instated.”
	Coul>Court: Complainant’s concerns noted. /td>
20.	17th February 2000	Matter set for Ex-parte Trial
<
	Defendant not present
	Case resume ex-parte
	Adjourned for decision.
21.	18th February 2000	Letter from Simon Ketan
		class=MsoNormal>Request adst adjournment to 24th February as he has National Court appointment.
<	Court:  Acknowledges letter received on 17th February   written and post-dated to 18th February 2000.
	Court Clerk directed to advise lawyer that case set for Decision on 6th March 2000.
22.	6th March 2000	Complainant in person
		Simon Ketan nor defe not Present
	Stood Over to 1.20pm same day.
d>
	d>	ass=MsoNormal>Complainant pant present
	<	Simon Ketan nor nor defendant not Present.
	rmal>Complainant:  “We were both present on 17th February 2000 in the morning and were notified of 1.30se. Defendant and his lawyelawyer told me that they would be present but they were not present in the afternoon.”
<
	Matter proceed ford for Ex-Parte Trial hence this Decision.

class=MsoNormal>

On 17th February 2000 the complaint was set for ex-parte hearing again when defence counsel failed to appear o consecutive set dates.  By letter dated 18th February 200 2000 from the defence counsel and received by court on 17th February 2000 at 1.15pm, the Clerk of Court was instructed to advice the writer of what had transpired (ie. 6th March 2000 set date for decision).

It would appear that from the time the complainant proceeded to trial ex-parte (17th February 2000 – 6th March 2000) a period of seven (7) clear working days the defence counsel has never bothered to search the court file to get an update of the case.  Had he done that or had he shown some interest in the case he would have presented himself on the 6th March and applied to have the decision set aside and his client given an opportunity to be heard.

As it turned out the defence counsel failed to turn up to receive the decision or to have it set – aside.  Since he was not available the decision was set back to 2.00pm the same day to allow him to appear.  The complainant was present, hence the ex-parte order with prohibitive clauses was entered as a deterrence to what I term as deliberate abuse of court process thus denying unrepresented lay persons a speedy justice as has happened in this case.

This Court made the prohibitive orders as it did for several reasons.  Firstly to prevent the blatant abuse of process provided for in Section 25 District Courts Act Chapter No. 40.  I stated in the case of Dagu Samban v Jefda Fast Food Trading and two others.  (Port Moresby District Court Case 1234/1999 20th May 2000) that there is an increase in Section 25 applications before this Court by lawyers who deliberately allow orders to be entered ex-parte knowing full well that they will in most cases be set-aside by unsuspecting magistrates, usually to the detriment of  winning parties.

The complainant who has come to this Court, unrepresented has waited for over twelve (12) months to get a second order regularly entertained, only to find yet again that he will have to wait for an indefinite period for justice to come his way.

I consider that to be a gross abuse of process especially when Defence Counsel’s conduct in defending his client has a lot to be desired.  His conduct in my opinion is bordering on professional negligence and is a cause for serious concern.

Secondly to deter defendants from enjoying free rides at District Courts so to speak but to subject them to the rigorous huge expenses of getting cases up before the National and Supreme Courts.  That may deter them from abusing the process of law.

Thirdly, this court was mindful of the lengthy delays in bringing this complaint to an end.  Hence it was strongly felt that the rigorous case flow management introduced and practiced by this court early this year be rigidly adhered too.

I am mindful of the fact that the Order was obtained ex-parte however the defendants evidence and cross – claim have been considered and given weight accordingly.  Having satisfied myself I entered judgement for the complainant.

I quote minutes of my Brief reasons for decision.

“Evidence from both parties relied upon.  Defendant’s  cross – claim also considered.  Cross – claim is dismissed.  All evidence for the complainant and defendant were considered,  prior to making the decision.”

Signed

(06th March 2000)

N1>Courts:         “I am satisfied that the complaint is made out.

Defendant in defence filed a cross-claim.  Defendant further shifted liability from the defendant to his driver and boss – crew.  That is an indirect admission that the complainant’s injuries were sustained as a result of the defendant’s  servants and agents actions.  That liability cannot be shifted to the workers.

The general law applicable under the circumstances is Master and Servant principle.  The appropriate law is Vicarious Liability.

I am therefore satisfied that the complainant’s injuries were as a result of the defendants servants conduct thus he also must be held liable to the actions of his servants at the material time.”

COURT ORDER

N1>1.       I find for the complainant in the sum of K8000.00 damages plus cost and interest forthwith.

N1>2.       Since the defendant has been granted leave to set aside an earlier order ex-parte order further leave is barred, as ample opportunity has been given to defend the case.

N1>3.       Warrant of Execution to be executed upon breach of Clause 1.

N1>4.       Defendant’s cross – claim is dismissed.

(Signed)

6th March 2000