Hauka v Hauka [2005] PGDC 24; DC160 (1 April 2005)

DC160

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 3384 OF 2002

BETWEEN

Dairi Hauka
Complainant

V

Dennis Hauka
Defendant

Port Moresby: Gauli
2005: February 25th, March 3rd, 18th, April 1st

DECISION OF THE COURT

Cause of Action

In this action the complainant had obtained the restraining orders against the defendant and the defendant by a notice of motion seeks to set aside the ex parte order or to have the entire proceedings dismissed in that the nature of the complainant was trivial, frivolous and vexatious.

Facts

The complainant and the defendants are a wife and husband. They were customarily married for over 12 years. During the years of their marriage the husband (defendant) has assaulted, abused and intimidated the wife (complainant) continuously without good reasons causing physical and emotional distress. And the complainant obtained restraining orders against the defendant on 13th November 2002 on ex parte proceedings.

On the 13th November 2002 the defendant filed a notice of motion to set aside that order. The defendant’s notice of motion was struck out on 12th June 2003 for none appearance by the parties. On 22nd February 2005 the defendant filed the second notice of motion to set aside the ex parte restraining order dated the 13th November 2002. That application was returnable on 25th February 2005. On 24th February 2005, his worship magistrate Mr. Bill Noki granted the defendant’s application setting aside the ex parte order of the 13th November 2002.

On 2erd February 2005 the complainant filed her notice of motion to re-instate the complainant and to set aside the ex parte order of his worship Hubert Sareke dated 12th June 2003. That application was returnable on 3rd of March 2005. And on the 2nd of March 2005 the defendant filed a cross notice of motion to dismiss or set aside the complainant’s notice of motion filed on 23rd February 2005 as been trivial, frivolous and vexatious and abuse of court process.

The above facts sets out the chronological sequence of all that transpired from the date the original cause of action was instigated in Court. And I now make a ruling on these applications.

Issues

From the chronological sequence of all that transpired. I consider that the following to be the issues to be address here.

Issue No. 1: When the application to set aside the earlier ex parte order is struck out on ex parte, what is the effect of that order if it is now set aside.

Issue No. 2: When the application to set aside an ex parte order is heard and determined before the returnable date of that particular application, would the order be valid.

Issue No. 3: The court order dated 12th June 2003 that struck out the case, did that order struck out the defendant’s application or did it struck out the entire proceedings of the complainant’s actions against the defendant.

Issue No. 4: Whether the application to set aside the ex parte order dated 12th June 2003 an abuse of court process.

The Law

The law relating to setting aside the ex parte orders is the s.25 of the District Courts Act which states and I quote:

"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 the service on the other party of such reasonable notice as the Court directs, .................

In applying this statutory law to set aside the ex parte order the Court must be guided by the principles laid down in the case law of Green -V- Green [1976] PNGLR, 73. The principles in that case authority are:

1. That there must be an affidavit stating the facts showing a defence on merit.
   
2. there must be a reasonable explanation why judgement was allowed to go by default.
   
3. The application must be made promptly and within a reasonable time.
   

When these principles and the provision in the statutory law are adequately satisfied then the ex parte order can be set aside.

I will not discuss the issues.

Issue No. 1 When the application to seta side the earlier ex parte order is struck out what is the effect of that order if it is not set aside.

On the 13th November 2002, the complainant by ex parte proceedings obtained a restraining order against the defendant. That same day the defendant filed a notice of motion to set aside that ex parte order. That notice of motion was struck out on the 12th June 2003 for want of prosecution by the defendant. Then on the 22nd February 2005, more than two years later the defendant filed a second notice of motion to set aside ex parte restraining order dated the 13th November 2002, which was eventually granted, without the defendant seeking to set aside the Court order dated the 12th June 2003.

The defendant having failed to set aside the Court order dated the 12th June 2003, that order in my view remains valid enforceable and effective until that order is either set aside, stayed or quashed. The Court order dated 24th February 2005 made in favour of the defendant that set aside the ex parte order of the Court dated 13th November 2002 would be invalid and an abuse of the court process. In my view the Court order of the 12th June 2003 is still effective and enforceable by law since that order has not been set aside.

Issue No. 2 When the application to set aside the ex parte order is heard and determined before the returnable date of that particular application, would the order be valid.

The defendant filed a second notice of motion to set aside the ex parte order dated 13th November 2002. That application was filed on 23rd February 2005. That application was however determined by the Court on the 24th February a day earlier than the returnable date. Again it was heard ex parte which ruled in favour of the defendant setting aside the ex parte order of the 13th November 2002.

Under these circumstances, the proceedings were trial by ambush and that the complainant (Respondent) was not given a reasonable opportunity to defend himself in respect of that proceedings. This is a clear abuse of the due process of the Court proceedings. If the defendant had served the complainant with the notice of motion to set aside the ex parte order, the complainant is expected to appear in court on the time and the date of the return of that application. Where an order is obtained or made by the Court any earlier that the returnable date order should be invalid and unenforceable.

Issue No.3. The Court order dated 12th June 2003 that struck out the case, did it struck out the defendant’s application only or did it struck out the entire proceedings of the complainant’s actions against the defendant.

The defendant filed an application to set aside the ex parte order dated the 13th November 2002. The defendant failed to prosecute his application and on the 12th June 2003 the Court ordered that:

"Matter struck out for none appearance of parties."

The term "Matter" refers to the case that is currently the proceedings before the Court at that material time. And the proceedings currently before the Court at that time was the defendant’s application to set aside the ex parte order dated the 13th November 2002. thus when the Court struck out the "Matte", it has in effect struck out the defendant’s application and not the entire proceedings or the substantive matter of the complaint. This effectively means that the Court order of the 13th November 2002 is unaffected by the Court order of the 12th June 2003.

Issue No. 4. Whether the application to set aside the ex parte order dated 12th June 2003 an abuse of the Court process.

The complainant on 23rd February 2005 filed an application to set aside the ex parte order dated the 12th June 2003. I could not understand why the complainant applied to set aside that order which struck out the defendant’s application to set aside the ex parte order of the 13th November 2002. The Court order of the 12th June 2003 was in fact made in favour of the complainant. It is a clear abuse of the process of the Court for the complainant to seek orders to set aside an order made in the complainant’s favour.

The defendant in his Cross Notice of Motion seek orders to –

1. Dismiss the complainant’s Notice of Motion filed on 23rd February 2005 seeking orders set aside that order, as it is an abuse of Court process and further to dismiss the whole of the proceedings.
   
2. Alternatively to uphold the Court order of the 12th June 2003.
   

In considering the defendant’s cross notice of motion I accepted the orders the defendant is seeking for and I ruled that:

1. The complainant’s Notice of Motion filed on 23rd February 2005 be dismissed for an abuse of the Court process; and
   
2. The Court must uphold the Court order dated the 12th June 2003 by his worship Hubert Sareke.
   

The flow on effect in granting the defendant’s Cross Notice of Motion is that the Court order dated 12th June 2003 by his worship Hurbert Sareke in striking out the defendant’s notice of motion to set aside the ex parte order dated 13th November 2002, that restraining remains enforceable against the defendant. And in making the above ruling, this Court would also rule that the Court Order dated 24th February 2000 by his worship W.L. Noki has having no effect and of null and void, for two reasons.

First, the defendant failed to set aside the ex parte order dated 12th June 2003. And secondly the Court order dated 24th February 2005 that set aside the Court order dated 13th November 2002 was made by the Court a day earlier that the returnable dated of that particular application by the defendant.

And this Court makes the following Orders:-

1. That the Court Order of his worship Hurbert Sareke dated 12th June 2003 which struck out the defendant’s Notice of Motion dated 13th November 2002 remains valid and enforceable.
   
2. The Court Order of his worship W.L. Noki dated 24th February 2005 is set aside in that it was made a day before the returnable date of the Notice of Motion filed on 22nd February 2005 as it being an abuse of the Court process. That order is set aside by Courts discretion.
   
3. The complainant’s application filed on 23rd February 2005 to set aside the Court Order dated 12th June 2003 is dismissed for abuse of Court process.
   
4. The defendant’s Cross Notice of Motion filed on 2nd March 2005 to dismiss the complainant’s Notice of Motion filed on 23rd February 2005 and to uphold the Court order dated 12th June 2003, is granted.
   
5. The final effect and or the out come of the Orders 1-4 above is that the Court Order dated the 13th November 2002 by his worship Danny Wakikura remains valid and enforceable.
   
6. That there be costs for the complainant
   

In Person: Complainant
Mr F Kamong: Defendant