Lau v Pacific Tutts Heavy Lift Co [2005] PGDC 109; DC459 (30 September 2005)

DC459

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1794 OF 2005

BETWEEN

Terry Tendau Lau
Complainant

V

Pacific Tutts Heavy Lift Co.
First Defendant

Mr. Neil McAllum
Second Defendant

Mr. Timothy Rau
Third Defendant

Port Moresby: Gauli, Apm
2005: 29th, 30th September

District Court – Practice and Procedure –Notice of Motion by Second Defendant to set aside default judgment – similar proceedings filed in the court by the same defendant – Application was granted earlier – Substantive matter pending hearing – Second Application is an abuse of process

Counsel
For the Complainant: In person
For the defendant: Mr. Justin Haiara of Steels Lawyers

DECISION OF THE COURT

30th September 2005.

GAULI, APM: The second Defendant filed a Notice of Motion on the 17th August 2005 and sought for the following orders –

1. To set aside a default judgment entered on 22nd August 2003.

2. Grant leave to the second Defendant to substitute service on the complainant by way of registered mail.

3. Cost be in the cause

4. Time be abridged

5. Such other orders as the court deems proper.

There had been earlier similar motion filed by the second Defendant on the 07th of November 2003 of which the court had already determined. I shall outline the chronological events of the proceedings leading to the current application.

Chronological Events

09/07/2003	Complaint and the Default summons were filed and returnable on 23rd July 2003. The Complainant claimed that the First Defendant was Indebted to Complainant in the sum of K3 000.00 being for contract of work to search for a new location which the Complainant did.
28/07/2003	First Defendant filed a notice of intention to defend the claims
22/08/2003	Magistrate Mr. R.Vagi entered a default judgment in favour of the Complainant in the absence of the defendants for a sum of K7 180.00 plus costs to be paid forthwith.
15/09/2003	Warrant of Execution was issued
07/11/2003	Second Defendant filed a notice of Motion to set aside both the default Judgment and the warrant of execution. That application was heard Ex parte on the same day. The court set aside the warrant of execution but not the orders made against the default judgment.
31/12/2003	The same court set aside the default judgment and the case was adjourned to 12th January 2004 for the substantive matter. Both parties were present at that proceeding.
12/01/2004	Second Defendant filed Notice to defend
19/01/2004	Second Defendant filed his defence

Since then the substantive matter had been adjourned several times pending hearing even to this very day.

15/042004	Second Defendant filed notice of motion to remove him from the entire proceedings
17/01/2005	I dismissed the Notice of Motion dated 15th April 2004, for want of prosecution. I did not set any date for the substantive matter as I just over-looked that the substantive matter was pending hearing.
04/08/05	Complainant presented a warrant of commitment for endorsement by a magistrate to bring the second defendant to court to answer and be dealt with by the court. I refused to endorse the warrant of commitment as this was not a proper practice of the court to bring a proceeding to court. And also the court noted that the substantive matter is still pending hearing in which a hearing date is yet to be fixed. On that same day the clerk of court then issued a Notice of Hearing and returnable on the 15th August 2005.
17/08/05	Second Defendant filed the Notice of Motion, the second time, to set aside the default judgment dated22nd august 2003. And the court determines this motion.

From the above chronological sequences of events the status of the entire case is crystal clear. The default judgment for which the second Defendant is seeking to set aside was been effectively set aside by His worship Magistrate Mr. R. Vagi on the 31st December 2003. And that the substantive matter of the complainant’s complaint is still pending to this day, from the court minutes on the files, it shows that both parties were present when the court set aside the default judgment. That being the situation as it is, I considered that really there is no point in the second defendant to file the present application to set aside the default judgment that had already been set aside. This is clear abuse of the court processes.

I do not think that it is necessary for me to discuss the submissions by both parties for the current motion except for the submission touching on the order of the court dated 07th November 2003, on the first notice of motion dated the same day. His worship Magistrate Mr. R. Vagi in granting the orders sought in that motion endorsed the prepared order. Amongst the other orders made in that particular order, I only wish to refer to the orders No. 3, 4, and 5, which are as follow:

"3. The Default Judgment entered against Mr. Neil McAllum on 22nd August 2003 for K7 180.00 plus costs of K100.00 be set aside.

"4. The writ of Execution dated 15th September 2003, be set aside."

"5. The complaint and summons be served upon Mr. Neil McAllum within fourteen (14) days from the date here of."

His worship in endorsing the entire order he then crossed out the Order No. 3 above. However, His worship did not cross out the Order No. 5 which order directed the Complainant to serve the complaint and the summons on the second defendant. The failure of the court to delete "Order No. 5" gives a very strong presumption that the default judgment in fact is set aside. When the Court ordered that the Complaint and the Summons are to be served on the defendant clearly indicates that the judgment entered earlier on is of no effect and it cannot be enforced against the defendant. And I am satisfied that by the Court Order dated 7th November 2003 the default judgment dated 22nd August 2003 was effectively set-aside despite the Court Order dated 31st December 2003 which later sets aside that default judgment.

The complainant submitted that the reason His Worship crossed out the "Order No. 3" was because the Court could not make more that one order to set aside. This is a very narrow argument. There is no provision in the District Courts Act that restricts the court from making more than one order to set aside in the same application. The practice of the court is that when the ex parte judgment order or the default judgment is set aside, any subsequent orders including the warrant of executions or warrant of arrest following the substantive orders are also set aside simultaneously on that same application.

For the reasons I have alluded above I find that the default judgment dated 22nd August 2003 was effectively set aside by the Court Order dated 7th November 2003 and I find that it is an abuse of court process to file a second motion to set aside the default judgment which was already set aside. And thus Court Orders that:

1. The Second Defendant’s Notice of Motion dated 17th August 2005 be dismissed.

2. The Court Orders dated 7th November 2003 and 31st December 2003 that set aside the default judgment of 22nd April 2003 remains effective and enforceable.

3. The substantive matters of the Complainant’s complaint is returnable on 31st October 2005 at 9:30 am for mention.

4. The parties meet their own costs.

In Person: Complainant
Mr. Justine Haiara: Defendant