Karap v Kemea [2005] PGDC 47; DC241 (8 July 2005)

DC241

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1670 OF 2004

BETWEEN

Mathew Karap
Complainant

V

Paul Kemea
Defendant

Port Moresby: Bidar, Pm
2005: 6th & 8th July.

District Court - Practice and Procedure - Application to reinstate proceedings struck out - Jurisdiction - Whether or not Court is vested with such powers - District Court Act ss.22, 25, 144.

8th July 2005.

RULING

BIDAR, PM: The proceedings commenced by complainant by default summons upon complaint for a civil debt sometimes in 2004, and had been adjourned from time to time for various reasons.

On 18th May 2005, the matter came before Mr. Cappo, when certain application by defence counsel, Mr. Kirio was refused. His worship directed that pleadings be completed and matter proceeds to trial. Matter was adjourned to 1st June 2005 for mention.

On 1st June 2005 complainant and his lawyer made no appearances. Mr. Kirio appeared for defendant. Mr. Kirio applied to have proceedings dismissed for want of prosecution. His worship considered the application and instead of dismissing the proceedings, he ordered proceedings struck out for want of prosecution.

On 22nd June 2005, this application was filed to reinstate the proceedings. In dealing with this matter, Court considers what powers it has. S.25 of the District Court Act provides that:

"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 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."

s.144 where complaint does not appear.

"Where at the time and place specified in a summons the defendant attends in obedience to the summons served on him for that purposed, but the complainant does not appear by himself or his legal representative, the Court shall:-

(a) dismiss the complaint and hear and determine defendant’s set-off, if he has given notice of set-off or;

(b) if it thinks proper, adjourn the hearing of the complaint and set-off to some other day on such terms as it thinks fit."

s.22 General Ancillary Jurisdiction.

"Subject to this Act a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it:-

(a) grant such a relief, redress or remedy or combination of remedies, whether absolute or conditional and;

(b) give the same effect to or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner."

On Court record, this matter came before His worship, Mr. Cappo on 18th May 2005 when both counsel appeared.

Mr. Kirio made an application the nature of which is not clear but was objected to by Mr. Maki. His worship refused the application. He ordered that necessary pleadings be completed for matter to go to trial and adjourned the matter to 1st June 2005 for mention.

On the 1st June 2005, Mr. Kirio appeared for defendant but there was no appearance by complainant or his counsel, Mr. Maki.

Mr. Kiro then applied for proceedings to be dismissed for want of prosecution. His worship having deliberated on the application, refused to dismiss proceedings but had the proceedings struck out for want of prosecution. Supposing the matter was set down for hearing on 1st June 2005, pursuant to s.144 (a) District Court Act, the proceedings should have been dismissed for want of prosecution.

Bearing in mind, the Order striking out the proceedings was an ex parte Order and pursuant to s.25 such order could be set aside on application. The current proceedings by complainant seeks to set aside the Order made by this Court on 1st June 2005.

The principles to set aside, ex parte Orders or default judgement are well settled in our jurisdiction.

Basically, if the ex parte Orders are made irregularly, as a matter of law it should be set aside. On the other hand to set aside default judgement regularly entered, the applicant should make prompt application and give reasons why judgement was allowed to be entered on default and that there is defence on merit. See for instance, Green and Co. -v- Green [1976] PNLGR 73, PNG Govt -v- Barker [ ] PNGLR.

Having heard both counsel on this application and upon reading the affidavit in support of the application, and noting that an earlier Notice of Motion filed on 15th June 2004 by defendant for dismissal of proceedings for non-disclosure of reasonable cause of action, appears to be still on foot; and for some reason it has not been moved.

The current application by defendant to reinstate the complaint based on the reasons I alluded to is granted. The matter of complaint No. DC:1670 of 2004 is reinstated. Costs to be in the cause.

Rules accordingly.

Mr. Maki: Complainant
Mr. Kirio: Defendant