Wilao v Downer Construction PNG Ltd [2004] PGDC 27; DC230 (23 March 2004)

DC230

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 54, 55 OF 2002

BETWEEN

Lucas Wilao
First Complainant

Sipa Osape
Second Complainant

V

Downer Construction PNG Ltd
First Defendant

Larry Nicholas
Second Defendant

Bradley Jones
Third Defendant

Kevin Dickinson
Fourth Defendant

Reasons for Decision

9th and 23rd March, 2004.

KORONAI, PM: This is a Motion by the Complainants seeking to reinstate their Complaints numbers 54 and 55 of 2002 which were Struck Out with costs on the 18th of November 2003 after Mr. Umbo failed to appear on this date set by consent, for hearing then

Counsel
Sipa Osape For Complainants.
Mokawau Mukwesipu For Defendants.

History

Complaints numbers 54 and 55 of 2002, against all the defendants were set by consent, of both lawyers, Mr Umba and Mr Mukwesipu for trial on the 18th of November, 2003 at 9.00 am from 16th October, 2003.

On the 18th of November 2003, Mukwesipu appeared for the defendants and informed this Court that Mr Umba lawyer for the Complainants had personal commitments and cannot attend this hearing and requests adjournment. Mr Mukwesipu submits that Mr Umba's request is really up to this Court to decide and asked for Costs.

This Court was of the view then that Mr Umba's request for adjournment in order to attend to personal Commitment is not a good reason for an adjournment as the Court does not know if his Commitment was urgent or not and that these Matters have dragged on for too long and should be settled. The Court then Struck out these Complaints and awarded Costs against the Complainants which should be paid prior to their instituting new Complaints against the defendants in this Court.

The Complainants have failed to pay these Costs as ordered by this Court and have now filed this Motion seeking to reinstate these Complaints.

Issue:

Whether the Complainants are entitled to make this Motion without complying with this Court's Orders of 18th November 2003.

The Law:

The District Courts Act Chapter 40 is silent on this matter but it has always been a practice in this jurisdiction when Matters are struck out, a party aggrieved by this decision can either apply to have them reinstated or proceed to appeal against these decisions under division 6 part Xl of District Courts Act Chapter 40.

In this Case the Complainants have opted to apply to this Court to have their Complaints reinstated and the facts of this Case shows that there is still a current Court order Striking out their Complaints and Costs were awarded against them which they had to settle before proceeding to file new Complaints over same Matters. They had not applied under section 25 of District Courts Act to set aside this Court's Orders of 18th November, 2003, before applying to reinstate these Complaints so the orders of 18th November, 2003 are still valid and in force and which they have not complied with in paying up Costs as ordered before seeking to re-activate these Complaints over the same Matters in this Court.

In PAUL PUKARI AND ORO CABLE TV V PETER SEETO [1997] PNGLR 246 (Supra) it was held by Doherty J, that "taking an action when judgments in the same or related actions have not been complied with amounts to an abuse of process". A stay was allowed until judgments are satisfied.

Conclusion:

In this Case, as referred to above, there is still a current Court Order for Complainants to pay Costs of the defendants before instituting new Complaints over the same actions. This also applies to re-activating same Complaints over the same actions, as is the basis of their Motion now before this Court. This they cannot do and therefore their Motion to reinstate Complaints numbers DC: 54 and 55 of 2002 should be Struck Out with Costs. Such costs and those of 18th November 2002 shall be paid before they can rightly apply to reinstate these Complaints or set aside the orders of 18th November 2002 under section 25 of District Courts Act.

Formal Orders:

The formal Orders of this Court are:

1. Motion to reinstate Complaints numbers DC: 54 and 55 of 2002 are Struck Out with Costs, such Costs and those of 18th November, 2002, shall be paid prior to lodging of new Complaints or reinstatement of their Complaints or setting aside of the orders of 18th November, 2002.

2. Parties have thirty days from 24th March 2004 to appeal against this decision to the National Court, if aggrieved by it.

Supa Osape: Complainant.
Pryke and Bray, Lawyers: Defendants