Samban v Jefda Fast Food Trading [2000] PGDC 9; DC74 (20 May 2000)

Unreported District Court Decisions

[2000] PNGDC 11 - DAGU SAMBAN V JEFDA FAST FOOD TRADING & OTHERS

[2000] PNGDC 11

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO. DCC 1234/99

BETWEEN

DAGU SAMBAN

COMPLAINANT

AND

JEFDA FAST FOOD TRADING & 2 ORS

DEFENDANTS

Port Moresby

Geita SM

2 May 2000

20 May 2000

PRACTICE AND PROCEDURE – S.25 District Courts Act (Chapter No.40) – Application to set aside  Ex-parte Order – failure by Lawyer to diligently prosecute application on two (2) occasions – Justice delayed – amounting to abuse of process.

PRACTICE AND PROCEDURE – S.143 (b) – no sufficient rounds  shown – Court may proceed Ex-parte.

REASONS FOR DECISION

GEITA SM:  This is a long outstanding case dating back to 20th May 1999 when the complaint was first filed into  Court and the Defendants properly served.  Mr Tonge was the Counsel on  record for the Defendants at that time. Both parties were in attendance on three occasions from the day of filing however they failed to prosecute and defend the complaint on four (4)  consecutive adjournments thereafter.  No reasons were given for their non-appearance  from 13.07.99 to 17.08.99.  On 7th September 1999 the Complainant  appeared in person but the Defendant and their Lawyer failed to appear  and the matter was listed for Ex-Parte hearing to 21st September 1999.  (See folio 20).

The case proceeded Ex-Parte on 21st September 1999 when the Defendant  again failed to  answer summons and a  Default Judgement was entered for the Complainant in the sum of K3,000.00 as compensation.  (See folio 24).

On 29th September 1999, Mr Philip Ame for the Defendant filed  an Application to set-aside  the Ex-parte Order pursuant to S.25 of the District Court Act.  On the  set date for the hearing of the Application (12.10.99) both parties again failed to appear  in Court  and the matter further adjourned to 21.10.99.

Prior to that on 15th October yet another Lawyer, Mr Allan David for the Defendant successfully obtained a stay Order of a Warrant of Execution issued by the Court.  Notice of change of Lawyers was filed on 14th October 1999.

On 27th October 1999, the Application was heard and Ex-Parte Order of 21.09.99 was set aside and the matter listed  for hearing.

On the 25th November 1999, both parties appeared and settled  on 6th December 1999 to be the trial date.  On the allocated date Counsel for Defendants, Mr Allan David was not present and so the trial was vacated to 17.12.99.

On 17th December 1999, both parties appeared and the case rescheduled again for trial on 2nd March 2000 at 10.00 am.  (See folio 54).  No reasons were given why the trial date was vacated.  There are no minutes to show what happened on that day.

On the day set for trial (02.03.2000) the Complainant appeared but the Defendant’s Lawyer, Mr Allan David was not present.  The Defendants were also not present. It was obvious that the Complainant felt he was being pushed around due to non-appearance of Defendant’s Lawyer.  I quote signs of his frustration.  “Matter has been outstanding since last year and so I want case to be tried.”

Mr Allan David, in a letter sent to the Court Clerk dated 2nd March 2000 alleged that the case was not listed and has requested for a relisting to another day.  The matter was heard at 10.45 am on the appointed date 02.03.2000 (See folio 57).

Had Mr David consulted the  court file or the court staff, he would have been informed of the day’s proceedings.  I am more inclined to believe that he was not in attendance at all on that day.  Another observation is that  his letter was  received by  court staff on the 7th March 2000, hence it is not folioed.

The Court proceeded Ex-Parte to hear and determine the  complaint pursuant to S.143 District Court Act Chapter No.40. (See folio 57).  The Complainant relied on  his affidavit and other supporting documents.  Ruling was reserved.

On the 20th March 2000, after a  marathon 10 months delay the Complainant was  finally awarded yet another Ex-Parte Order.

The transcript of my brief reasons for decision in folio 55 & 56 is attached.

Dagu Samban v Jefda Fast Food Trading & 2 Ors

N2>1.       Complainant is relying on his affidavit for compensation.  Also relying on Medical evidence which is consistent with his complaint of food poisoning;

N2>2.       Matter determined Ex-Parte but was later set-aside by the Defendants;

N2>3.       Now, that the Defendants and their Lawyer  has failed to appear, case was set Ex-Parte;

N2>4.       Complainant relied on  his affidavit and evidence by Medical Officers.

COURT

Having gone through the evidence including those of the Defendant’s I am satisfied that the Complaint is made out.

The vomiting complained off is confirmed by the Medical Officer the next day Complainant sought Medical assistance.

The Defendant’s defence is very weak and insufficient.  They have not succeeding in isolating the consumption of food by the Complainant, which lead to the vomiting  into the night followed by the Medical Officer’s diagnosis.

Health Inspector’s report also points to the appalling state of hygiene in food preparation by the Defendants.

I am satisfied that those poor food preparation conditions is conducive to the breeding of food poisoning elements.  Hence I find for the Complainant.  Complaint is proved.

COURT ORDER

N1>1.       That Defendant 1 – Jefda Fast Food Trading, Defendant 2 – Director Wie Hsiung Chin and Defendant 3 – Manager Jie Yu are ordered  to pay to the Complainant Dagu Samban, the sum of K4,000.00 in compensation for illness suffered as a result of the Defendant’s supplying bad food in their shop at Down Town Port Moresby;

N1>2.       Payment shall be made forthwith with costs;

N1>3.       Failure to comply with Clause 1 & 2 Warrant of Execution will be issued;

N1>4.       I order that further leave to set aside the Order be barred save an appeal or judicial review before the National Court.

NB:  First Ex-Parte Order - Stayed by Court upon Application.

Matter set for Trial.

Defendants have failed to appear on trial date.

Hence any further application would amount to an abuse of process.

This Court made the Orders as it did in particular Clause four (4) for several reasons.  Firstly to prevent the blatant abuse of process provided for in S.25 District Court Act Chapter No. 40 there is an increase in S.25 applications before this Court by Lawyers who deliberately allow Orders to be entered Ex-Parte knowing full well that such Orders will in most cases be set aside, usually to the detriment of the winning party.  As has happened in this case.  Two lots of S.25 applications were made by two different Defence Counsels.

I consider that to be a gross abuse of process especially when the  Defence Counsel failed to turn up on the date of trial, a date which he was a party to fixing  for trial.  (See folio 54).

Secondly to deter the Defendants from enjoying the free ride at the District Court so to speak but to subject them to the vigorous huge expense of getting up cases before the National or 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 vigorous case flow management practiced by this Court at the beginning of this year be rigidly enforced.

Finally it was strongly felt by the Court that the Complainant who has come before this Court unrepresented since filing his complaint has been greatly prejudiced as a result of gross lack of professionalism by three (3) separate defence lawyers in their handling of this case.  As such the Complainant must be allowed to enjoy the fruits of his Order.

I am mindful of the fact that the Order was obtained Ex-Parte however, I have also considered and given equal weight to the Defendant’s defences.  Having done that I ruled that their evidence was grossly insufficient.  (See folio 55 & 56).

This Court is therefore of the opinion that the Defendant’s defence has been duly considered  prior to the  making of the Ex-Parte Order hence to allow him to be heard again will amount to an abuse of process and will greatly prejudices the Complainant.

Lawyers:  Complainant In Person

Allan David for the Defendant