M'ledu v Naugre [2005] PGDC 26; DC184 (22 April 2005)

DC184

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 45 OF 2005

BETWEEN

Isabella M'ledu
Complainant

v

Norman Naugre
Defendant

REASONS FOR DECISION

22nd April, 2005.

KORONAI, PM: This is an application by the defendant seeking to set aside an order of this Court, made in his absence, on the 6th of April, 2005 for his being in arrears in the sum of K550.00, being maintenance payments in respect of child named Melchior M'ledu, born of the complainant.

Defendant/ Applicant appears in person.
No appearance by Complainant/Respondent.

HISTORY

The defendant was ordered by the Vanimo District Court, on the 7th of November, 2003, to pay K50.00 each month as maintenance payments in respect of child, Melchior M'ledu, which he fathered and born of the complainant on 11th November, 2000.

On the 9th of February, 2005, complainant took out a complaint against the defendant under Section 4 of Maintenance Orders (Enforcement) Act Chapter 229 for he was now in arrears with his monthly maintenance payments of K500.00 for the period commencing June 2004 to February, 2005.

Matter was listed initially for 9:30 am on 30th March, 2005 but as the parties failed to appear on that date, it was reset for 9:30 am on 6th April, 2005. On 6th April, 2005, the complainant appeared but the defendant did not so an order was made that he pay up arrears of K500.00 and K50.00 for month of April, 2005, totaling K550.00, within seven days and in default he shall be imprisoned for a term of six months goal term at Correctional Institution at Vanimo, unless he settles the arrears in full.

It is from the above order that he is seeking to set aside when he filed his application, together with a statement in support, on the 11th of April, 2005. His statement in support is as follows:-

Staitmen

Mi (Norman Naugre) I raitim dispela staitmen.

Long dei na deit Trinde 06/04/05 long 9 kilok mi ino inap mekim long kamap long kot. Risen em olsem -

(1) 06/04/05 ibin gat bikpela fen na bikpela ward I tait na brukim Davi Bris we ino inap 01 ka I ran igo inap 07/08 na inap tete.

(2) Long 06/04/05 yet mi bin ripot long Polis long lait haus long toksave long kot haus long dispela tasol oli no bin toksave inap long mi yet kamap long kot haus long 11/04/05 na kisim dispela form (Ex-parte) na pulmapim.

Em tasol staitmen blong mi.

Thank you.

(Signed) Norman Naugre

This statement was filed at the Registry on 14th of April, 2005 and his application was filed on 11th April, 2005.

ISSUE

Whether the applicant has satisfied all the principles of law relating to setting aside of Ex-parte orders.

THE LAW

District Courts Act Chapter 40, Section 25 applies in respect of this issue.

This application is rightly made under Section 25 of District Courts Act which I do not wish to reproduce here and the principles of law for setting aside Ex-parte orders, under the provisions of this Section are:-

1. Applicant needs to file an affidavit or a statutory declaration together with his application stating facts showing a defence on merit.

2. He must give a reasonable explanation as to why he allowed ex-parte order to be made against him.

3. He must file his application promptly and within a reasonable time after he became aware of the ex-parte order.

This principle of law is set out in GREEN & CO v GREEN [1976] PNGLR 73, GEORGE PAGE pry LTD v BALAKAU [1982] PNGLR 140 AND MAPMAKERS pry LTD v BROKEN HILL PROPRIETY COMPANY pry LTD [1987] PNGLR 78. Of course there are other cases that deal with this principle of law, which I do not wish to quote here.

The prime consideration by the courts in deciding whether to set aside an ex-parte order or not, is that the applicant needs to show that he has a good defence on merit of his claim, which this court should allow to be raised. In ANAGA TOBALU v MEMU WAKIKURA & 4 ORS an unreported National Court Judgment of 24th March, 2000, WS No. 124 of 1998, Kiriwom, J at page 6, referred to an unreported Supreme Court decision in BAING v PNG STEVEDORES PTY L TD of 23rd February, 2000, which at page 13 said; "It is quite settled law that in considering whether to set aside judgment, the paramount consideration is whether there is a disclosure of a good defence on merits of the plaintiffs claim".

In this application, the statement in support, shows why the defendant allowed ex parte order to be made against him and it is a reasonable explanation so this takes care of principle number (2). This application was filed promptly, after the defendant became aware of this Courts' ex-parte order, on the 11th of April, 2005 some six days later, so this takes care of principle number (3).

But he has not shown, in this statement, that he has a good defence on merit, which this court should allow to be raised in a proper trial, in order to enable it to set aside its ex parte order of 6th April, 2005. He simply has no defence to the complainant's claim against him over arrears in maintenance payments.

CONCLUSION

From the above reasoning it is clear that defendant has not satisfied all the principles of law applicable in setting aside ex parte orders and his application should be dismissed without costs. I am also satisfied that he has had more than seven days to pay up arrears as ordered by this court on 6th April, 2005 and this order should be enforced forthwith and a Warrant of Commitment should be issued committing him to a goal term of Six Months with Hard Labour, until he complies with the orders of 7th November, 2003 and pays up, in full, the arrears of K550.00, pertaining to the said order of 6th April, 2005.

FORMAL ORDERS:

1. APPLICATION IS DISMISSED, WITHOUT COSTS.

2. EX PARTE ORDER OF 6TH APRIL, 2005 IS ENFORCED AND A WARRANT OF COMMITMENT SHALL BE ISSUED, COMMITTING THE APPLICANT/DEFENDANT TO A GOAL TERM OF SIX MONTHS IHL AT VANIMO CORRECTIONAL INSTITUTION, UNLESS HE PAYS OFF IN FULL ARREARS OF K550.00.

3. SENTENCE IMPOSED ABOVE IS TO BE EFFECTIVE AS OF TODAY'S DATE, i.e.; 22/04/05.

4. DEFENDANT HAS 30 DAYS FROM 23RD APRIL, 2005, IN WHICH TO APPEAL AGAINST THIS DECISION TO THE NATIONAL COURT OF JUSTICE, IF HE'S AGGRIEVED BY IT.

In person: Complainant
In Person: Defendant