Complete Investigations and Research v Burrows, Manager Bank of South Pacific Ltd [2003] PGDC 16; DC156 (17 February 2003)

DC156

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 241 OF 2001

BETWEEN

Complete Investigations & Research
Complainant

V

David Burrows – The Manager Bank Of Bsp
First Defendant

The Bank Of South Pacific Limited
Second Defendant

MT. HAGEN: R KORONAI
17th February 2003

REASONS FOR DECISION

COUNSEL
Mr. Robin Yabra for Complainant
No appearance by Defendant.

11th and 17th February 2003

KORONAI, PM: This is an application by Complete Investigation and Research, seeking to set aside an ex parte order made on 12th November 2002 dismissing its complaint against the defendants for their non appearance then to prosecute it.

FACTS: The complainant took out a complaint against the defendants on the 24th of August 2001 and matter was listed on 18th September 2001 at 9:30am.

On 18th September 2001, the complainant failed to appear while Mr. Poro Kui appeared for the defendants and matter was adjourned to 12th October, 2001. On the 12th of October 2001, Mr. Yabra appeared for the complainant while Mr. Peri appeared for the defendants and agreed to file affidavits and matter was adjourned to 20th October, 2001 for mention.

On the 26th October, 2001, parties failed to appear so matter was adjourned for mention to 13th November 2001 when they failed to appear again so matter was adjourned again to 5th December 2001 for mention when they failed to appear so matter was adjourned sine die on that date.

Then on 9th September, 2002, CIR wrote a request letter to a new date and in response a letter was sent to them by Civil Clerk advising them that matter was listed for mention on 26th September, 2002 at 9:30 am. On the 26th September, 2002, Mr. Yabra appeared for CIR but the defendant failed to appear as they were not aware of this adjournment so matter was adjourned for hearing to 17th October, 2002 and notice of it was sent to the defendant by the Civil Clerk on 27th September 2002.

Then on the 17th of October, 2002 the complainants were parent but the defendants were not so the matter was adjourned again to 30th October and again the defendants failed to appear and the complainant did. Matter was then adjourned to 12th November 2002 at 9:30 am for ex parte hearing and notice of it was sent to the defendants on 30th October, 2002. Then when the matter came up for trial on 12th November, 2002, the complainants failed to appear and the defendants successfully applied and case was dismissed for want of prosecution then with costs and to pay security for costs if they were to institute new proceedings. It is from this order that the complainant/applicant is seeking to set aside and have this matter set for trial. It is to be noted that when the matter was adjourned on the 30th October 2002 to 9:00 am on 14th November, 2002, for hearing the complainants were present.

ISSUE: Whether this court can set aside an order dismissing a complaint for want of prosecution.

THE LAW: Section 25 of District Courts Act Chapter 40 allows for this type of application to be made. Be it the applicant must satisfy the principles applicable as set out in GREEN AND COMPANY LTD V. GREEN [1976] PNGLR 73, THE GOVERNMENT OF PNG & ANOR V. BAKER [1977] PNGLR 386 and GEORGE PAGE PTY LTD V. MALIPU BUS BALAKAU [1982] PNGLR 140 and these are;-

1. Applicant needs to file his application promptly as soon as he became aware of the ex parte order; and
   
2. must explain the reasons why it allowed ex parte order to be made against it; and
   
3. must show he has good defence on merit that this court should allow it to be raised.
   

Here are the applicant/complainant filed this application on 23rd January 2003. Some three months after the order was made it does not state when it became aware of this ex parte order and I consider that this application was not filed promptly after it became aware of the ex parte order.

He has stated reasons why it allowed ex parte order to be made against it but complainant was present on 30th October 2002, when this matter was adjourned for ex parte trial to 9:30am on 12th November, 2002 and not 1;30pm as deposed to by Mr. Yabra in his affidavit sworn and filed on 23rd of January, 2003. So there was no reasonable explanation.

But this case was dismissed upon application by the defendants/respondents. They have this right of dismissal for non appearance of complainants/applicants under section 144 (a) of District Court Act Chapter 40 and it is a mandatory requirement and case at be waived.

See: KIAU NIKINTS V. MOKI RUMINTS [1990] PNGLR 123

CONCLUSION: In this case this matter was dismissed rightly under the Provision of Section 144 (a) of District Court Act chapter 40 and the only option then available to the complainant/applicant is to appeal against that decision to the National Court of Justice under the Provisions of Section 219 of District Courts Act. They cannot come to this court with this type of application under section 25.

COURT ORDERS

For this reason, I would dismiss this application without costs. So that the formal orders of this court are:-

Application/Motion is dismissed.

No costs awarded

Parties have 30 days from today to appeal against this decision to the National Court of Justice if aggrieved.
Mr Robin Yabra: Complainant
In Person: Defendant

Dated this 11th day of February 2003 at Mt. Hagen.
RICHARD KORONAI
By the Court