Tabare Security Services v Asia Pacific [2009] PGDC 17; DC861 (27 March 2009)

DC861

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

DCCi 63 of 2008

BETWEEN

TABARE SECURITY SERVICES
Complainant

AND

ASIA PACIFIC
First Defendant

AND

SIMON SIA
Second Defendant

Goroka: F MANUE
2009: February 19
March 27

CIVIL - Motion to set-aside Ex-parte Order – S. 25 of District Court Act.

- To invoke S.25 the Right is not automatic, but a discretionary one.

- Application must satisfy the court on the Principles of law before the order sort may be granted.

- Failure to disclose fact of why the applicant failed to appear in the first instant court and not acting sooner to set aside order are reasons enough to refuse the application.

Cases Cited:

Green and Company –v- Green [1976] PNGLR 76
Baker –v- Government of PNG [1976] PNGLR 340
Government of PNG and Davis Walker –v- Baker [1977] PNGLR 386
George Page Pty Ltd –v- Malipu Bus Balakau [1982] PNGLR 140

References:

S. 25 of District Court Act

Counsel:

Complainant/ Applicant: Mr. John Anga
Defendant/ Respondent: Nil Appearance

27 March, 2009

REASONS FOR JUDGMENT

F Manue a/ Grade Five Magistrate: The Defendant/Applicant comes to court by way of a motion. The motion was first mentioned on the 19th of February, 2009.

2. By consent of both parties if was set for hearing on the 27th of March 2009. The defendants however were not represented although Stevens lawyers was engaged. Upon insistence by the Applicant to proceed ex-part, the matter proceeded.

3. The motion seeks that:

- the Ex-parte Orders issued on the 11th of December 2008 be set aside; and the court issues any other order the court deems fit.

4. The applicant moved that the court relies on their filed affidavit to make a ruling.

5. The affidavit filed by the applicant and relied upon by the court is as follows:-

i. “I am the complainant and the Principle of Tabare Security Services, and I have the authority to depose to these affidavit.

ii. I have made this application pursuant to Section 25 of the District Court Act because I was not present in court and the court did not hear side of story.

iii. Before the decision was made I did file a notice on the 10/12/08 asking the court to adjourn my case to a later date but the court went ahead and made its decision. (annexed marked “A” is the copy of my letter.”

The letter reads in part:-

“I have a problem back at home, my father died so I will be attending the funeral in Simbu. I will come back after a week.

Therefore, I am asking the court to adjourn my case to a later date.”

Signed – John Anga.

6. The letter requesting for an adjournment as dated to have been filed and received on 10/12/09.

7. Section 25 of the District Court Act allows for litigants to apply to the District Court to set-aside orders which have been made in the absence of one party.

8. It states:-

25 Ex-parte order may be set-aside

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; a

(b) adjourn the hearing and determine action 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.

9. The section does not give an automatic right to set a side ex-parte Orders. The aggrieved must first apply by way of a motion provided that the other party is notified. Having notified the other party, the court at its discretion would hear the application on its own terms and conditions.

10. In addition the applicant is required to satisfy the court following criteria’s of law. These principles of law are well settled in the cases of Green and company –vs- Green [1976] PNGLR 76, Baker –vs- Government of Papua New Guinea [1976] 340, Government of Papua New Guinea and Davis –vs- Baker [1977] PNGLR 386, and George PagePty Ltd –vs- Malipu Bus Balahau [1982] PNGLR140.

11. The Principles enunciated in those cases may be summed up as:-

(a) that the application to set aside an ex-parte order must be made promptly or as soon as practicably, after learning of the order;

(b) that the application must include when and why he allowed the ex-parte order to be made; and

(c) that the application must disclose a good defence on merit which the court should allow to be raised in the substantial matter.

12. The applicant filed this motion on the 26th January 2009. How and when he learnt of the order was not disclosed but from the time he filed this motion to the date of the order would be just over one (1) month.

13. That period satisfies one of the criterias of applying to set aside the order within a reasonable and practicable time. Secondly, the applicant is required to satisfy why he allowed the ex-parte order to be made.

14. The request for adjournment is said to have been filed. However, I note that, although it was received and dated 10/12/08, there is no initial of the recipient officer, nor is the court seal on the document to confirm that it was filed at the registry with the court deposition.

15. I cannot accept this document to have been a genuine one as it could have been made up to suit the applicant’s purpose. The dominant factors of the rejection are the defects on the document as pointed out earlier.

16. On this point, I am not satisfied that the applicant has satisfactorily explained why he allowed the ex-parte order to be made.

17. Finally, the court has to be persuaded that the application to set aside an ex-parte order is genuine as the applicant has to have a good defence on the merits in the substantive matter.

18. The applicant has not shed any light on whether he has a defence on the merit at all.

19. I am therefore not satisfied that the applicant has any purpose for the court to set-aside the ex-parte order.

20. On those basis I found that the criteria’s of setting aside the ex-parte order dated 10th December 2008, have not been made.

21. The application was therefore refused and dismissed.

_________________

Counsel:

Defendant/Applicant: Mr. John Anga
Complainant/Respondent: Nil Appearance