Siwi v Pek [2005] PGDC 83; DC284 (31 May 2005)

DC284

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 284 OF 2004

BETWEEN

Peter Siwi
Complainant

v

Moresby Pek
First Defendant

Sharon Benson
Second Defendant

Port Moresby: Bidar, Pm
2005: 12th & 31st May.

District Court - Practice and Procedure – Notice of Motion to set aside Ex-Parte Order – Relevant principles – Promptness of application – Explanation as to default – Defence on merit – District Court Act (Ch. No. 40) s.25.

Cases Cited
There are no cases cited.

Counsel
C. Okuk: For the Applicant / Defendants.
Respondent/Complainant in Person.

RULING

31st May, 2005.

BIDAR PM: On the 21st April 2005, the applicants herein filed a notice of motion seeing the following orders:-

"1. That the Ex-Parte orders of 7th December 2004 be set aside.

2. That these proceedings be set down for hearing."

To appreciate the Orders sought it is necessary to state the background to this proceedings.

On the 16th January 2004, the complainant (Respondent) filed summons upon complaint against eh defendants, claiming that the defendants employed the complainant as domestic servant from 4th April to 22nd November 2003, which is equivalent to 16 fortnights and 8 days and failed to pay him any salary or wages. Complainant was purposely engaged as a domestic servant at the defendant’s property s.21 allotment 34 port Moresby. He therefore claims payment for his services as domestic servant. He claims other matters which appear to be constitutional issues which I do not wish to dwell on.

Record for court shows that, after many adjournments for various reasons, an ex parte Order was entered on 7th December 2004. The Order required the defendants to pay K1,320.00 together with 10% interest and costs of K100.00. Payment was to be made in full within 30 days from the date of this Order.

The entry of ex parte Order on 7th December 2004 was completely unknown to the defendants. First of all the matter had been adjourned so many times and the defendants simply lost track of the proceedings. They received no notification that the matter was returnable on the 7th December 2004. Applicants say that delay was not unreasonable and secondly, they say, they have defence on merit. It would be contended that, complainant was never engaged or even employed by defendants at all.

The principles are basically that there should be a reasonable explanation as to why the ex parte Order was allowed to be entered and there must be defence on merit and that the application is made promptly. See for instance the authorities such as Green & Co. -v- Green, Barker -v- The State.

Upon hearing Mr Okuk counsel for the applicants and upon reading the affidavit in support of the motion, I am satisfied there are material facts which go to show defence on merit, particularly whether or not any employment relationship existed between the parties. The explanation offered is reasonable and that filing of application about 4 months after entry of ex parte Orders, in the circumstances in my view is not unreasonable. In all the circumstances, I grant the motion by applicants filed on 21st April 2005. I order that the ex parte Orders entered on 7th December 2004 is set aside. Matter of complaint is reinstated. I give the following directions for future conduct of the proceedings.

1. Defendants file and serve their defence (if any) by 10th June 2005.

2. Complainant to file and serve his reply to the defence by 17th June 2005.

3. Both parties file and serve additional affidavits of need be by the same time.

4. Matter is set down for trial tentatively on 21st June 2005 at 1:30pm.

5. Costs of this proceedings be costs in the cause.

Rules accordingly.

Okuk Lawyers: Applicant
In Person: Respondent