Sawang v Tawi [2006] PGDC 21; DC594 (11 July 2006)

DC594

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi 72 OF 2005

BETWEEN

FRANCIS SAWANG
First Applicant

AND

APOLONIA SAWANG
Second Applicant

AND

JOHN TAWI
Respondent

Buka: D Maliku
2006: 11 July

Application to set aside default judgment - Negligence of a lawyer cannot constitute a reasonable explanation for allowing judgment to be entered - Failure of a lawyer to appear in court cannot constitute a reasonable explanation for allowing judgment to be entered - Mere instruction by clients to lawyers and reduced in an affidavit which creates legal opinion on the part of a lawyer is not a defence on the merit.

Case Cited
District Court Act

Reference
Green & Company Ltd -v- Green [1976] PNGLR 73
Baker -v- The Government of PNG and Bix [1976] PNGLR 340
The Government of PNG -v- Baker [1977] PNGLR 386
George Page Pty Ltd -v- Malipu Bus Balakau [1977] PNGLR 40
Leo Duque -v- Avia Andrew Paru SC Appeal No. 25 of 1996

Counsel
Mr. Edward Latu for Applicants
Mr. Luke Mongko for Respondent

REASON FOR DECISION

1. D MALIKU: The application comes before me in a form of a motion seeking the ex-parte order by the Buka District Court on the 27 April 2006 be set aside.

2. The District Court granted the following Orders:

i. The defendant or agents release the keys to the informant for part of the building on Section 2, Lot 20, Kokopau forthwith, failing which the Informant will be at liberty to change the locks to allow him access.

ii. The defendants or agents are restrained from harassing, intimidating, causing disturbances or from attempting to lock out the Informant or his clients or agents from the said part of the building on Section 2, Lot 20, Kokopau.

iii. The defendants pay a total sum of K300.00 as surety to Buka Court House clerk, same which shall be forfeited to the Independent State of PNG, if clause 2 of this order is breached with two (2) years from the date of this order, otherwise it becomes refundable if defendants abide by terms of the Good Behavior Bond.

v. The defendants pay(s) for the Informant cost of proceedings.

3. Brief facts as follows:

i. An information laid by the respondent under s 209 of the District Court Act seeking certain orders, containing in the information.

ii. That matter came before me and subsequently the issue of whether the information was properly laid, and the orders sought were proper under s 209.

iii. I made a ruling on the 29 March 2006 that the information was properly laid under s 209 of the District Court Act and reached the following decision:

v. Having heard the submission of both counsels, I have concluded that, the information does fall within s 209 of the District Court Act and order that the matter, be listed on 5 April 2006 at 9.30 am. The matter came before the court on the 5 April 2006, and the record showed:

Matter proceeded before Mr. Tasikul

Counsel for respondent - Mr. Mongko

Counsel for applicant - Mr. Latu

4. Both counsels agreed for further adjournment. Matter adjourned for mention at 9.30 am on the 11 April 2006. On the 11 April 2006, the matter came before the court and the record showed the following:

Matter again came before Mr. Tasikul.
Mr. Mongko appeared for respondent.

No appearance of Mr. Latu for appellant, nor did his client appear in person, reasons not recorded. Matter was further adjourned for mention on 18 April 2006 at 9.30 am.

5. On the 18 April 2006, the record showed:

Matter came before Mrs. Mongko.

No appearance of Mr. Latu or his client, reasons not recorded.

Mrs. Mongko adjourned the matter for Mr. Tasikul to the 27 April 2006 - 9.30 am.

6. On the 27 April 2006, the following is observed from the records:

Matter came before Mr. Tasikul.

Mr. Mongko for respondent.

No appearance of Mr. Latu or his client - reasons not recorded.

7. Mr. Mongko then submitted before Mr. Tasikul as follows:

This matter has been adjourned several times. My client has been locked out, and needs a restraining order. His worship reached the conclusion that the Court has considered the application and allowed for the interest of justice and made the following order: Ex parte Order granted, as per Court Order.

8. I note with great concern that neither Mr. Latu nor his client failed to appear three (3) consecutive times. It is after the order was made on the 27 April 2006, that the applicant filed his application to have the order set aside. The applicant relies on supporting affidavits by his counsel. The applicants themselves filed no affidavits of their own knowledge of what had transpired from the 5 April 2006 to 27 April 2006. I am satisfied that the applicants never appeared at all during these proceedings.

9. The application outlines the reasons to set aside the court order as follows:

"I did not attend on the 11 April 2006 at the District Court for mention of the substantive matter between the informant and my client since I had to attend to a property settlement wherein I was instructed to act for a Port Moresby Law firm, Miropasi Lawyers."

10. This matter was a pending matter before a court. The settlement referred to appear to be an out of court settlement. Mr. Latu should have placed more weight on this matter since the court specifically ordered that the matter be adjourned to 11 April 2006. In other words, Mr. Latu had a duty to Buka District Court as ordered on the 5 April 2006. Mr. Latu did appear and receive the court order of the 5 April 2006. Matter adjourned for Mention. I note also that Mr. Latu’s client did not appear also on the 5 April 2006 with any instruction from Mr. Latu.

11. Mr. Latu further says in his affidavit that on the 27April 2006, the date the Ex-parte Order was made is that he was attending to the National Court Sitting. He goes on to say in paragraph five (5): "I was informed that the matter was adjourned to 27 April 2006 at 9.30 am for Hearing and I prepared for attendance on the above date, however, on the 4 May 2006 I was attending to the National Court Sitting at Sohano Island and could not attend to the District Court." In paragraph six (6), Mr. Latu explains that short notice was given about National Court Sitting in Buka.

12. It is not known of when the National Court Sitting began from Mr. Latu’s affidavit. However, mathematically 27 April 2006 to 4 May 2006 is exactly one (1) week and one (1) day. In terms of working days, it is exactly six (6) working days, there was in my view sufficient time for Mr. Latu to advise Mr. Mongko about the National Court Sitting, however, he did not. I am reluctant to accept the reason since there is nothing further to confirm that the National Court was actually sitting on 27 April 2006 and Mr. Latu was actually appearing before His Honor on the 27 April 2006. I fear that the National Court could be dragged into as a reason for non appearance by Mr. Latu on the 27 April 2006, and subsequently allowed the order be made against his client. I also observed from the records that Mr. Latu’s client did not appear on the 27 April 2006 before the District Court and advise the court of any specific instruction from his counsel.

13. I now turn to the submission of both counsels. Prior to doing that, I must record that the matter is before me today 6 July 2006 for any further submission by both counsels upon their written submissions filed before me. There being no further addresses by both counsels, the matter was adjourn for decision on the 11 July 2006.

14. Applicants Submission

i. I now turn to the submission of both counsels. Prior to doing that, I must record that the matter is before me today 06 July 2006 for any further submission by both counsels upon their written submissions filed before me. There being no further addresses by both counsels, the matter was adjourn for decision on the 11 July 2006.

ii. On the counsel for applicant introductory part of his submission he asserts that the facts of the case is well aware of, but the substantive matter has not been argued since the court has granted an ex-parte order upon the applicants and legal cost for non attendance on the date 27 April 2006.

iii. Mr. Latu submits that the applicants must be given an opportunity to argue their case on the allegation before the court and as such make an application to set aside the ex-parte order of 27 April 2006, and to defend themselves against the claim brought against them by the respondent.

15. Respondent’s Submission

i. In Paragraph one (1), counsel for respondent submits that the facts are quite simple then what the applicant has argued it or made it to look like.

ii. In paragraph two (2), counsel for respondent submits based on the affidavit of informant dated 20 January 2005 and 1 November 2005 which is Annexure "A" that the respondent is a joint owner of the property in issue with the first applicant - Francis Sawang.

iii. In paragraph three (3), Mr. Mongko submits that there was strong armed tactics intimidation and harassment to possibly force the respondent out of his part of the property so that the whole building could eventually be theirs, applicants.

iv. Mr. Mongko submits that it is against these illegal acts of intimidation and harassment and relies on the affidavit dated 24 May 2005, 1 November 2005, 19 December 2005 and 4 April 2006 of Mr. Tawi, respondent, that he has come to this court to protect himself, and part of the property which he conducts business to earn his living, hence the restraining orders he eventually obtained from the District Court on 27 April 2006.

v. In paragraph seven (7) and eight (8), Mr. Mongko refers the court to the case laws relating to the ex-parte orders being set aside. He refers the court to the following authorities:

1. Green and Company Pty Ltd -vs- Green [1976] PNGLR 73

2. Baker -vs- The Government of PNG and Bix [1976] PNGLR 340

3. The Government of PNG -vs- Baker [1976] PNGLR 386

4. George Page Pty Ltd -vs- Malipu Balakau [1982] PNGLR 140

5. Leo Duque - vs- Avia Andrew Paru SC Appeal No: 25 of 1996

vi. In paragraph nine (9), Mr. Mongko submits that the respondent’s application does not show any defence at all and the issues raised in paragraph three (3) of the applicants submission could be properly raised via other legal procedures and in the appropriate forums.

vii. In paragraph twelve (12), Mr. Mongko submits failure by counsel and clients occurred three (3) consecutive times before his worship Mr. Tasikul.

viii. In paragraph fifteen (15), Mr. Mongko reiterates the applicants should seek other legal avenue if they think they have an interest to protect and not through the current forum, and finally submitted that the application be dismissed with cost as it is baseless.

16. What is the issue before this Court?

i. The issue is whether the court sets aside an ex-parte order of the 27 April 2006. Mr. Latu concedes that his clients have not filed any other affidavits to support the application because they have filed affidavits in respect of the substantive matter, which also state their reasons for taking the actions adopted by them, and for the purpose of this application relies on the affidavit sworn by him as counsel for the applicants. The other issue that this court should enquire into is whether the applicants have material facts to show a defence on the merit. These issues are legal issues which I will deal with later. In paragraph eleven (11) and twelve (12) the applicants deny any threats, intimidation, and harassment to the respondent.

17. The Law

i. The law on setting aside default judgment in Papua New Guinea is well settled. Counsel for respondent have referred to a number of Papua New Guinea authorities inclusive of the matter of Leo Duque -vs- Avia Andrew Paru SC Appeal No. 25 of 1996. In this case their honors confirmed the legal position on the application to set aside a default judgment.

ii. Their honor found that there was negligence on the part of the lawyers for appellant and concluded this to be professional negligence on the part of the lawyers. Accordingly, I conclude that non appearance by the lawyer for the applicant nor his client amount to negligence and can hardly be a reasonable explanation.

iii. The other aspect of the law relating to setting aside a default judgment is that the respondent must show material facts showing a defence on the merit. Their Honor had this to say:

"It is clear to us from the authorities we have set out earlier in our judgment and subsequent cases in this jurisdiction that as a matter practice an applicant must in an affidavit state material facts showing a defence on the merit. It must not be a mere denial. "

18. I have been referred to affidavits filed by both parties. Firstly the affidavit of the respondent, dated 24 October 2005 and Annexure ‘A’ by Pinakokoia Land Group; and Building Contract of Sale. Signed on the 22 January 2002, by Francis Sawang, John Tawi and Joe Cheung. The affidavits contain facts that make the respondent a joint owner of the property in issues.

19. The counsel for applicant in his affidavit has stated his reasons for not filing any other affidavits being that the applicant had already filed affidavits relating to the substantive issue. I think he is referring to the affidavits of Mrs. Apolonia Sawang and Francis Sawang dated 30 November 2005, which I have considered. These contain facts that suggest that they are the owner of the property in issue. It also contains facts that the Contract of Sale referred to by Mr. Tawi in his affidavit was a result of misconstruction by the respondent, even though I note that Mr. Francis Sawang - first respondent, had signed it.

20. It is clear from the affidavit filed before the court the applicant is arguing that they have a defence on a merit, being the issue of ownership, which the respondent argue likewise.

21. Being that, in mind, I asked this question: "Are there material facts before this court on the part of the applicants to rely on as a defence on the merit?" To answer this question, I say the following: "The counsel for the applicant has filed an affidavit stating his explanation for allowing the judgment against his client, which I have ruled cannot constitute a reasonable explanation, also it appears that he is submitting that it is sufficient from the affidavit filed to simply make reference to instruction from his client and express a legal opinion on the part of the lawyer, that it is sufficient to be a defence on the merit. I say NO and I am not convinced, but that there must be material facts showing a defence on the merit."’

22. Nevertheless, this court is not to decide the issue of ownership of the property although it been led to by the affidavits filed as it is an issue to be dealt with in due course in the proper forum.

23. Finally in conclusion, I found that non appearance on three (3) consecutive occasions of counsel and clients does not constitute reasonable explanation and also there is no material fact by the applicants before the court to show there is a defence on the merit. A mere instruction by clients to the counsels and reduced in an affidavit which creates legal opinion on the part of the lawyer is not a defence on the merit. Being that my conclusion, I reject the application and refuse to set aside the order of the 27April 2006.

24. I also found that the applicants have in fact complied with the order of the 27April 2006, in that an amount of K300.00 ordered by the court as surety has been paid in full, an official receipt no. BSP 006656 - dated 28 June 2006 is in fact attached to the file.

25. I direct that both counsels take up the issue of ownership of the property in question in due course before the proper forum.

Latu Lawyers
Tamusio Lawyers