Komane v Minei [2005] PGDC 22; DC127 (19 December 2005)

DC127

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2837 OF 2005

BETWEEN

DAVID KOMANE

Complainant

AND

MELIEN GLORIA MINEI

Defendant

Port Moresby

Gauli, APM
2005: December 19th

Counsel

For the Complainant: Present In Person

For the Defendant: Mr W Agohon of Williams Attorney

REASONS FOR DECISION

GAULI, APM: The Defendant Melien G. Minei applied to court to set aside the ex parte order dated 15th March 2005 and that the defendant be granted leave to file her defence. That application was dismissed and I herby give my reasons for such a decision.

Brief Facts

On 6th March 2004 the Defendant engaged the services of the Complainant to provide general care to the defendant's adult son MICHAEL MINEI while he was hospitalized at Port Moresby General Hospital, who suffered injuries when shot by police. The Complainant was promised to be paid but the Defendant failed to pay him. And he claimed for compensation for services rendered.

On 15th March 2005 His Worship Mr. Danny Wakikura entered the ex parte judgment in favour of the Complainant in the sum K2, 198.00 payable forthwith.

On 06th May 2004 the defendant filed a Notice of Motion to set aside that ex parte order. That application was adjourned as the Notice of Motion had not been served on the complainant. The application was adjourned five times between 06th May to 01st July 2005. On 01st July the Notice of Motion was dismissed for want of prosecution by the Defendant/Applicant.

On 23rd November 2005 the Defendant filed second Notice of Motion seeking orders to set aside the ex parte order dated 15th March 2005. That motion was moved on 19th December 2005 and the court dismissed that second notice. And I hereby give my reasons.

My Reasons for Decision

The Defendant on 23rd November 2005 filed a second Notice of Motion to set aside the ex parte order dated 15th March. I dismissed that motion for the reasons that:

1. The Defendants first Notice of Motion filed on 06th May 2005 to set aside the ex parte order dated 15th March 2005 was dismissed by the court on the 01st July 2005 for want of prosecution.
   
2. The Defendant in his second Notice of Motion filed on 23rd November 2005 did not seek to set aside the ex parte order dated 01st July 2005 that was dismissed, instead he only sought orders to set aside the ex parte order dated 15th March 2005.
   
3. Since the Defendant failed to set aside the ex parte order of the 01st July 2005, that order still remains effective until it is set aside. There no mention in the Defendant's Notice of Motion filed on 23rd November 2005. So long as the ex parte order of the 01st July remains unchallenged, the ex parte order of the 15th March 2005 remains enforceable.
   
4. It is an abuse of process of the court not to seek to set aside the later ex parte order as well as the former ex parte order.
   

For the reasons stated above the Defendant/Applicant's second Notice of Motion filed on 23rd November 2005 was dismissed.

In Person: Complainant
In Person: Defendant