Tonny v Motor Vehicle Insurance Limited [2009] PGDC 10; DC904 (19 February 2009)

DC904

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

CI 693 of 2008

BETWEEN

MANAWE TONNY
Complainant

AND

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Lae: P Tapil
2009: 19 February

CIVIL-

Cases Cited:

Bill Sakara V Mapu Naa [2001] N2053
Community Development Pty Ltd V Peter Karai [1994] PNGLR 463

References:

District Courts Act 1963, s.25 (a) (b)
Motor Vehicles (Third Party Insurance) Act 1974 S.54 (6)

Counsel:

Complainant, in person
Mr. Gibson Anis – W/Shand Lawyers, for the Defendant

19 February 2009

P Tapil: This is an application by the Applicant/Defendant to set aside an exparte order of the District Court in Lae dated 11 November, 2008. The court has ordered default judgment against the Defendant for failing to appear and defend a claim for damages by the Complainant pursuant to the Motor Vehicle Insurance (Third Party Insurance) Act.

The applicant relies on s.25 of the District Court Act setting aside the order. Section 25 of the District Courts Act reads;-

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 other 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 to be given to a party.

Precedents show, three (3) conditions have to be met for the setting aside of a regularly entered default judgment. They are as follows.

1. There must be an affidavit stating facts showing a defence on merits.

2. There must be a reasonable explanation why judgment was allowed to go by default.

3. The application must be made promptly and within a reasonable time Community Development Pty Ltd V Peter Kewai [1994] PNGLR 463 p465.

The Applicant defendant relies on s54 (6) of the Motor Vehicles ( Third Party Insurance ) Act 1974 which requires the Complainant to give the notice within six (6) months of their intention to claim to the Insurance Commissioner. Even where extension of time was given, the notice of claim was given outside the extension period of twenty (20) days.

A substantive list of Authorities were submitted by council which goes to justify the first (1st) leg of the conditions that a defense on merits does exists

“ Secondly, whether there is a reasonable explanation why judgment was allowed to go on default.

After receiving the summons the applicant defendant basically did nothing other than to send a letter to the respondent complaints requesting a withdrawal of the proceedings and that they would enter an appearance on the same day and apply for dismissal of the complainant and summons. After a number of adjournments and the non appearance of the respondent defendants the Court issued and exparte order dated 11 November, 2008.

The proper an appropriate course for a party aggrieved by an order of the District Court is to appeal to the National Court within thirty (30) days time limit prescribed by the District Court Acts instead of applying to another District Court to set aside the order. However, where a party decides to apply to set aside then he does so at the risk of his application being dismissed. ( Bill Sakara V Mapu Naa [2001] N2053 )Unreported judgement of Jalina.J. (the late)

A decision whether to grant or application to set aside an order of the same Court is one which involves exercise of the Courts Discretion whether or not there is a reasonable explanation why judgment was allowed to go on default is a factor that the Court will take into account in exercising that discretion.

In the present case even thought the application was filed on the 18 of December, which was thirty seven (37) days after the order was entered and is within reasonable time. I am not satisfied that reasonable explanations have been given on why judgment was allowed to be entered against the applicant defendant in the first instance.

The applicants sat in the comfort of their office and issued letters to the Complaints under the protection of legislation they administered. They had not filed a Notice of Intention to Defend knowing very well that he matter has been filed in the District Court and the risks of Default Judgment was eminent.

Accordingly I enter judgment in favour of the respondent complainants

Court Order

1. The motion is dismissed forthwith.

2. District Court Order dated 11 November 2008 is confirmed.

3. Costs awarded in favour of the Complainant

4. Orders accordingly.

____________________

Lawyer for the Complainant In Person
Lawyer for the Defendant W/Shand Lawyers