Karl v Fova [2004] PGDC 37; DC378 (18 February 2004)

DC378

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 290 OF 2000

BETWEEN

Jonah Karl
Complainant /Respondent

V

Tony Fova
Defendant/Applicant

REASONS FOR DECISION

6th, 25th November 2003
16th, 28th January; 18th February 2004

KORONAl, PM: This is an application by defendant/applicant seeking to set aside an order of this Court made in favour of the Complainant/respondent on the 20th day of August, 2003.

Counsel
Dependant/applicant in person.
No appearance by Complainant/Respondent.

Facts:

This Case was heard and judgment entered by default against the defendant/applicant on the 22nd of June, 2001 where he ordered to pay to the Complainant/respondent a total sum of K1,300 being money loaned to the defendant/ applicant by the Complaint/respondent at defendant/applicant request, in or about July, 1998.

This matter of the Complaint was taken out on 22nd June, 2000,and default Summons was served on the defendant/applicant, in Goroka: together with copy of notice of intention to defend, on the 23m of June, -2000, by Tom Sikali of Accanufa & Associate Lawyers, and the, matter was listed for 12th of July, 2000 at 9.00 am.

On the 12th of July 2900 at 9.00 am when matter came up, the defendant/applicant was present and did not file a notice of intention to defend this action but denied liability and matter was adjourned by his worship Mr Kisokau to 9.30 am on 7th of August, 2000 for trial. Matter was then adjourned to 1.30 pm on 24th of August, 2000 for ex parte trial.

On the 24th of August 2000, Mr Umba appeared for Complainant/respondent but defendant/applicant failed to appear when Mr Umba successfully sought an adjournment to 26th September, 2000 due to his Client, the Complainant/respondent being sick with Malaria. On the 26th of September, 2000, the defendant/applicant failed to appear when Mr Umba for Complainant/respondent successfully sought an adjournment since due to the illness of the Complainant/respondent.

Then on 26th March, 2001 Complainant appeared in person but there was no appearance of defendant and Complainant successfully made an application and matter was set for ex parte trial at 1.30 pm on the 10th of April, 2001. When matter came up on 10th April, 2001 both parties failed to appear so matter was adjourned sine die.

On 22nd June, 2001, Matter was listed before me after the Complainant appeared on 21 st June, 2001 seeking a new date of hearing. On the 22nd of June, 2001, defendant failed to appear and .as this was a liquidated claim commenced b}' a default summons and he failed to file a notice of intention to defence as well as defence and his failure to defend it after denying liability on 12th July 2000./ Default judgment was entered against him then.

After attempts at execution of the above-named Court order, the Complainant/respondent applied for oral examination of defendant's ability to meet the Court order on 8th of August, 2003 at 9.00 am but the defendant failed to appear and as a result defendant was ordered to satisfy this judgment debt by 20th August, 2003 and in default shall be imprisoned for a term of four weeks at Bihute Correctional Institution.

Then on the 27th of October, 2003, the defendant filed this application which was listed for 9.00 am on 6th November, 2003, which had to be adjourned to 1.30pm on 25th November 2003 on applications by defendant as Complainant has gone to Lae. Then on 25th November, 2003, matter was adjourned again as I was on transfer then and was set for mention at 9.00 am on 16th of January, 2004. On 16th January, 2004, Matter was set for hearing at 9.00 am on 28th January 2004 after the Complainant/respondent failed to appear.

On 28th January 2004, Matter was adjourned to today for a decision as the affidavit in "support of application was already in and the Complainant/respondent was already given notice of hearing of this application.

Issue:

Whether the defendant/applicant has met all the principles of law applicable in setting aside default judgement.

The Law:

As this was a default judgment, this application will be treated as being made pursuant to the provisions of Section 159 of District Courts Act as this was an order made under section 157 of the said Act.

The facts show that at the initial hearing of this Matter on 12th July, 2000, the defendant/applicant was present and denied liability and it was adjourned to 9.30 am on 7th August, 2000 for trial. But the defendant failed to appear then and ever since. So he had notice of hearing of this matter and there were no reasonable excuses for his non appearances. If he was to go to Port Moresby then he should have let the Complainant and the Court know so a proper date of hearing would have been set after his return. He just left and forgot all about the Case against him and this was fatal in his Case.

It is both his and the Complainant's duty to check on hearing dates and not the duty of this Court to inform them of these. His application is to set aside this order of 20th August 2003 which sentenced him to jail for four weeks if he fails to pay the judgment debt by 20th October, 2003.

His affidavit in support of his application of 27th October 2003 contains the following grounds in support, namely;

a. I am the, applicant/defendant herein.

b. An order has been made against me by the District Court at Goroka, to pay K1, 322.20 toea to the respondent. Attached hereto and marked with letter 'A' is a copy of the order.

c. In July, 2001 when respondent/Complainant pursued the Civil Debt Case I was in Port Moresby for job and study related reasons.

d. I was totally unaware of date and day of hearing.

e. I was alerted through a Court Summons to appear for oral examinations on 20th August 2003.

f. I was in Port Moresby and not in Goroka when the Case was heard and decided and my side of story was never heard.

g. I explained in Court that I was in Port Moresby when Case was heard however a Warrant of Execution was issued on 20th August 2003.

h. In all fairness to me the Court should hear my side of the story.

i. I am denying the liability.

In his grounds contained in his application in support he has notice of this oral examination set for 20th August 2003 (See paragraph (e)) of his affidavit in support. This resulted in the order of 20th August, 2003 being made against him so there is no reasonable explanation for his non appearance for he could've written in and asked for an adjournment to allow him to appear to attend this oral examination.

As to the rest of his affidavit, all the grounds In it refer to the original decision of 22nd June, 2001 and which is now not an issue before this Court.

In those types of application the prime consideration would be whether the defendant/applicant has a good defence on merit which this Court should allow to be raised against the order of 20th August, 2003. None of the grounds of his application raises any defence which this Court should allow him to raise in respect of the oral examination which resulted in this Court's Order of 20th August,- 2003 and on this reason alone this application should be dismissed.

He has not provided any reasonable explanation as to why he was not in Court on date order was made against him on 20th August, 2003 and going to Port Moresby is not a good reason for not attending Court without giving notice to the other party, that is, the Complainant/respondent and this Court so that alternate arrangements could be made for his attendance.

In this Case he just totally ignored the hearing of this complaint. A party cannot just ignore Court process and if he does he does so at his peril.

I am also of the view at this application was filed out of time after defendant/ applicant became aware of this Court's order of 20th August, 2003 and no reasonable explanation was given for this delay of over two moths before this application is made on 24th October, 2003.

Conclusion:

The end result is that the applicant/defendant has not satisfied the principles of law applicable in setting of aside default judgments as encountered by these Cases, namely, GREEN AND COMPANY V GREEN [1976] PNGLR 73, BAKER V GOVERNMENT OF PAPUA NEW GUINEA [1977] PNGLR 386 and GEORGE PAGE PTY LTD V MALIPU BUS BALAKAU [1982] PNGLR 140. And there this application should be dismissed without Costs.

Formal Orders:

Formal Orders are: -

1. Application to set aside this Court's orders of 20th August, 2003 is dismissed without Costs.

2. Orders of 20th August, 2003 are to be enforced forthwith.

In Person: Complainant
In Person: Defendant