Kulange v Ten [2004] PGDC 42; DC479 (17 March 2004)

DC479

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2044 OF 2002

BETWEEN

Veronica Kulange
Complainant

V

Thomas Ten
First Defendant

Eva Thomas
Second Defendant

Port Moresby: D. Wakikura, Magistrate

District Courts Act –
Right to apply to set aside ex parte orders
Practice and Procedure - Application to set aside ex parte orders - Principles in setting aside Question of vicarious liability to be properly heard - Issues to be properly tried.

Statutes
District Courts Act

Cases Cited
Green & Co Pty Ltd v Green [1976] PNGLR 73
The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386
Commodity Development Ltd -v- Peter Karai [1994] PNGLR 463

Counsel
Mr. Mase for the complainant/Respondent First defendant In Person

17 March 2004.

RULING

D.Wakikura: This is a ruling on a motion filed by the First Defendant seeking orders to set aside previous orders that were obtained earlier by the complainant/respondent. This court is asked to grant the orders in the following terms:

1. The Ex Parte Order of the Court dated the 05th day of November 2003 be set aside.

2. Any or all enforcement proceeding pertaining to the ex parte order of the court dated 5th day of November 2003 be set aside or stayed pending the determination of the substantive proceeding.

3. Costs be in the cause.

4. Any further orders the court deems fit.

This initially was an application by the First Defendant who was ordered with the Second Defendant to pay K8, 000.00 as damages to the Complainant for the tort of battery. The wrong was occasioned by the Second Defendant who allegedly was the first wife of the First Defendant. The First Defendant was pulled into this case through the application vicarious liability as the husband of the Second Defendant. The complainant was brought into Port Moresby City to be the wife of the First Defendant.

Basically the main issue for me to decide is whether the applicant has satisfied this court with the legal principle or requirements of setting aside a default judgment. This is a question of fact which the applicant has to produce evidence to the satisfaction of the court.

The applicant deposed to in his affidavit that when the matter was adjourned to the 05th day of November, 2003 he did not attend as he entered wrongly into his diary as the 11th day of November, 2003. On that mistaken belief he went to work and not to court and the ex parte orders were entered on that day. It was on the 10th of November that the complainant went to his work place and served him the court order.

He stated that at the time of the incident which gave rise to this proceeding, he and the complainant were married and living together. The Second Defendant, however, had separated from him and was living on her own when the incident happened. She had gone to Mt. Hagen and came back at her own accord and ambushed the complainant. He was denying liability and was prepared to defend himself when given the opportunity.

Counsel for the respondent submitted in response that the defendant has not disclosed a defence on the merits as a requirement in setting side ex parte orders that the defendant failed to disclose the reasons as to why he allowed the orders to be entered against him. Counsel submitted further to say that the defendant did not bring this application in within a reasonable time. The respondent likewise sought for orders that the application is dismissed with costs and the ex parte orders of the OS of November is upheld.

This is an application under section 2S of the District Courts Act which accords rights of hearing to parties who were not heard when ex parte orders were granted. This is what this particular provision says;

25. Ex parte order may be set aside.

A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on service on the other party of such reasonable notice as the Court directs, may

(a) proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or

(b) adjourn the hearing and determination of the hearing to such time' and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.

The provision accords parties the right to seek for orders to set aside ex parte orders that were obtained in the absence of the other party. A notice of such application must be served on the responding party.

The principles upon which the courts may set aside a judgment by default are covered most adequately in the National Court decision of Green & Co Pty Ltd v Green [1976] PNGLR 73 and by the Supreme Court in The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386. The principles are similar to those developed in most other common law jurisdictions. It is very well established in this jurisdiction that the three principles enunciated in the case of Green and Green as well as other related cases are produced to the satisfaction of the court. Basically the three principles are that:

1. There is a defence on the merits which the defendant will establish on proper trial.

2. There is a reason as to why the orders were obtained ex parte and why he was not available at the hearing.

3. The application to set aside was made within a reasonable time.

The recent case Commodity Development Ltd -v- Peter Karai [1994] PNGLR 463 discusses the application of the above principles as well as section 25 of the District Court Act.

In above the Rabaul District Court entered ex parte judgment in favour of the respondent, the complainant in the court of first instance. The appellant filed a motion under s 25 District Courts Act seeking to have the ex parte order set aside. The District Court refused the motion on the ground that no defence was shown on the merit, in accordance with the precedents set by the National Court. On appeal, the appellant argued that the defence on the merit is a procedure under s 159 of the District Courts Act and it does not apply to s 25.

The court held in that case that although s 25 District Courts Act and Order 12 R 35 National Court Rules are not the same, the wording is sufficiently similar and similar principles apply. Hence, the District Court properly applied the National Court precedents that three conditions had to be met to set aside a regularly entered default judgment viz:

1. There must be an affidavit stating facts showing a defence on the merits.

2. There must be a reasonable explanation why judgment was allowed to go by default; and

3. The application must be made promptly and within a reasonable time.

Repeatedly the higher courts have set the legal principals governing such applications to set aside ex parte orders. These principles are straightforward in that there must be facts stating a defence on the merits, a reasonable explanation why judgment was allowed to go by default and whether the application was made within a reasonable time.

From what is presented before me I note that the defendant was found liable under the principle of vicarious liability. The Second Defendant actually inflicted the harm on the complainant for which these proceedings were instigated. As the husband of both women the First Defendant, being the applicant in this case was found to be vicariously liable for the actions of his wife. I am at this stage uncertain as to if the application of this principle of law in a wife and husband relationship an established principle of law. This point of law has to be properly argued in a trial proper so that the court can be very well informed before applying such a rule of law.

I also note that it took about four (4) months from the time judgment was granted till to this time in court. There was an earlier application by the Second Defendant to set aside the ex parte orders which was dismissed for want of prosecution. This was raised by the respondents that since the same application was dismissed, the defendants are not entitled to a similar recourse. I do not quite agree as the two applications were taken up by the two defendants separately as separate defendants in the same case. The earlier application was dismissed for the Second Defendant and this current one is for the First Defendant. That may have been one delay in taking up this application earlier by the First Defendant.

The reasoning that the applicant/defendant was not able to make it to court because he had entered a wrong date in his diary can not be a strong argument. He could have cross checked with the registry and confirm the date of hearing if he was not sure. That reason can not stand because he had other ways of checking and confirming dates and times with the registry staff.

The only argument that is worth considering is the question of the defendant being held liable for the actions of his wife. He did not actually inflict the harm on the complainant and in actual fact he was trying at the time to stop the two women from fighting. The question of being vicariously liable for the action of the wife has to be properly addressed with proper submissions on this point of law. The question as to whether this principle of law applies to a husband/wife relationship or is it only for a master/servant relationship has to be addressed.

This as it seems to me, has to be properly addressed before the defendant can be held liable. That was not established in the earlier proceedings where the judgment was obtained ex parte because the case was not properly heard inter parte. I also note in this proceeding that orders were granted without a proper assessment of the damages for an unliquidated demand.

The First Defendant has to be properly heard before liability can be established for a wrong recognised in law. If liable was entered through vicarious liability then this court "has to be satisfied that such a principle is applicable in a wife and husband relationship. With that I will proceed to grant the orders that the First Defendant is seeking for the ex parte orders to be set aside.

In the case of the Second Defendant her application was dismissed due to her non-appearance to prosecute her application and liability will remain as entered in the ex parte judgment. Only the assessment of the damages can be considered in her case and this court will have to go ahead and hear submissions on how much should be paid in damages.

I now order that the ex parte orders of the Court dated the 05th day of November 2003 against the First Defendant concerning liability is set aside. The orders for payment of damages against the Second Defendant is set aside and liability remains as entered against the Second Defendant and this matter is now adjourned for hearing.

Orders accordingly.