State v Anate [2013] PGDC 13; DC2070 (30 July 2013)

DC2070

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court Held at Bulolo]

CB No 252 of 2011

Between:

THE STATE

And:

TINTI ANATE
(Defendant/Applicant)

And:

PNG FOREST PRODUCTS LIMITED
(Intervener/Respondent)

Bulolo: CInkisopo

2013: 9th May & 30th July

District Courts Act Chapter 40 – practice & procedure at District Courts – applications to set aside provided for by Statute – s 25 of District Courts Act provides for applications to set aside ex parte orders –

Practice & procedure of District Courts - Application to set aside ex parte order – ex parte order entered irregularly to be set aside as a matter of principle – ex parte order entered regularly requires discretion – material relevant to exercise of discretion; (1) evidentiary material disclosing defence on merit – (2) explanation why ex parte order was allowed to be entered – (3) promptness of application to set aside or explanation (if any delay) -

Legislation:

1: District Courts Act Chapter No 40

PNG Cases Cited:

1: Barker -vs- Government of PNG [1970] PNGLR 340
2: BSP -vs- Spencer [1983] PNGLR 239
2: Green & Company Pty Ltd -vs- Green [1976] PNGLR 73

Appearances:

1: Mr Gibson Anis of Counsel of Morobe Provincial Administration Legal Services Unit

2: Mr Paul Ousi of Counsel of Warner Shand Lawyers, Lae

25th July, 2013

JUDGMENT

C Inkisopo::Applicant Tinti Anate of Baiune Village, Bulolo through his legal Counsel Mr Gibson Anis applies to this Court by way of a Notice of Motion filed and dated 29th November, 2012 seeking to set aside and the reinstatement of an earlier order that this Court yet set aside on 30th August, 2012.

2: The facts giving a fuller background impetus of the issues before this Court are that; the Applicant Tinti Anate stood charged in 2011 before the Bulolo Committal Court with a charge leveled against him for stealing. The Bulolo District Court sitting in its committal jurisdiction by his worship Mr Bonn Amos determined the matter and found it wanting on grounds of insufficiency of evidence and made the following orders;-

1: Case dismissed,

2: Defendant discharged

3: Bail K500.00 refunded

4: Defendant be reinstated to his old position and be paid all his unpaid salaries forthwith.

3: It will be appreciated that the matter was a criminal case between the State as the instigator of the charge of stealing pressed against Tinti Anate through Detective Senior Constable Max Makeso at the complaint of victim, PNG Forest Products Ltd. That criminal matter ended when the Court dismissed the charge and subsequently discharged the Applicant forthwith of the charge with additional orders. However, through a fine turn of events, the victim of the original incident giving rise to the stealing charge; PNG Forest Products Ltd hereinafter called the Intervener filed a Notice of Motion before this Court seeking several reliefs as the interested party directly affected by the order of the Court of 14th November, 2011.

4: At the same time, I note that PNG Forest Products Limited is actually a third party in the matter of the State -vs- Tinti Anate over the charge of stealing; but made an application by way of a Notice of Motion seeking several reliefs against the terms of the original order of 14/11/2011 in particular, item number 4 of the Order. It is trite that third parties do not have the legal standing to enter the fray as parties but seek joinder as parties with leave of Court on sufficient grounds demonstrating that they are inherently an interested party.

5: In this instance, I note it to be abundantly clear on the face of the record that PNG Forest Products Ltd was sufficiently an interested person, sufficiently qualified in my view (based on the terms of the Order of 14/11/2011) to take the sort of action it took; quite simply, because it was the party directly adversely affected by that Order. Therefore, PNG Forest Products Ltd correctly took the steps it took in coming back before this Court to secure the orders it obtained on 30th August, 2012. It is for this very reason I opt to call PNG Forest Products Ltd in this proceeding "the Intervener".

6: The Intervener on 30th August, 2012 sought and successfully set aside a specific order item #4 of the order of this Court of 14/11/2011 which was made ex parte. It is the term of this very order that this application seeks to have set aside in this instant proceeding.

7: Section 25 of the District Courts Act provides avenues for affected parties in Court proceedings to make applications to set aside those previous orders made ex parte; and of course on conditions. The Defendant/Applicant comes to this Court from that angle with this application to set aside this Court's order of 30/08/2012 which application must be dealt with in accordance with established principles in this jurisdiction commencing with the oft-cited case of Green & Company Pty Ltd -vs- Green [1976] PNGLR 76 which has been expanded and improved on; a number of which (to give us an idea of how far this principle has developed over the years) are;-

➢ BSP -vs- Spencer [1983] PNGLR 239
➢ Duque -vs- Paru [1997] PNGLR 378
➢ George Page Pty Ltd -vs- Malipu Bus Balakau [1982] PNGLR 140
➢ Koopa -vs- Tokam & State [1996] PNGLR 277
➢ William Duma -vs- Yehiura Hreiwazi (2004) N2526
➢ Worm -vs- Sergeant Koken [1996] PNGLR 358

8: Whilst I agree that s 25 of the District Courts Act is the legal basis for such applications, the law is settled in this jurisdiction. The Court considering such an application to set aside ex parte orders is to be dealt with in accordance with established principles in this jurisdiction. Case law on point says that where an ex parte order is irregularly entered, the Court has no discretion to refuse but to set aside the ex parte order as a matter of principle. And where the order the subject of the application is one that was entered regularly but through some slip or error on the part of the Defendant; the Court dealing with the application has discretion to exercise to either grant or refuse. See BSP -vs- Spencer [1983] PNGLR 239

9: From case law on point, it seems clear that in considering applications where ex parte orders are entered regularly; the Court determining the application has a discretion to exercise; and materials relevant to the exercise of the discretion are; (1) evidentiary material disclosing defence on merit; (2) reasonable explanation(s) why the ex parte order was allowed to be entered; (3) promptness of application to set aside or reasons explaining delay in applying (if any). See George Page Pty Ltd -vs- Malipu Bus Balakau [1982] PNGLR 140

10: Where ex parte orders are entered irregularly, they must as a matter of principle be set aside without the need for discretion; as his honour Mr Justice McDermott said at p 240 of the case of BSP -vs- Spencer [1983] PNGLR 239;-

"There is a strong distinction between setting aside a judgment for irregularity in which case, the Court has no discretion to refuse to set aside; and setting aside where judgment though regular has been obtained through slip or error on the part of the Defendant in which case the Court has a discretion to impose a term granting the Defendant relief."

11: In our instant case, it appears clear to me that the Applicant/Defendant was duly served with a copy of the Intervener's original application to set aside the particular Order item No 4 of this Court's original Order of 14th November, 2011which ordered for the Applicant/Respondent's reinstatement and payment of his unpaid salaries. Upon a successful application by the Intervener, the Court on 30/08/2012 set aside the particular item number 4 of the original order of 14/11/2011. The Applicant/Defendant Tinti Anate through this present application asks this Court to set aside the subject order of 30/08/2012 and reinstate the original order of this Court of 14th November, 2011.

12: The application before me is apparently clear that it was made ex parte. The court hearing the Intervener's application back then in August, 2012 was entitled to act on the material then present before it; namely the proof by way of an Affidavit of Service by one David Bume of Bulolo PNG Forest Products Ltd which proves the service of the Intervener's application on the Applicant/Defendant. There is also evidence on file of the Applicant/Defendant's letter having been served on the Clerk of Court's office at Bulolo on 28th August, 2012; two (2) clear days before the Application's hearing date of 30th August, 2012. This letter denoted as annexure "D" was received by the Court Clerk signified by his endorsement and stating the date of his receipt as 28/08/2012.

13: On the application's hearing date of 30/12/2012, I am very sure in all probabilities, the presiding Magistrate would have noticed Annexure "D" attached on file to sufficiently alert his Worship to at least adjourn to a later date as the Respondent has offered an explanation of his inability to appear in Court on that day. Nevertheless, his Worship in his wisdom proceeded to deal with the Intervener's application and granted the reliefs sought which is now the very subject of this instant application.

14: In my humble view, the Applicant/Defendant's non-appearance in Court for the Application's hearing date was not without a reason. He did in fact serve a written explanation why he would not attend Court on the hearing date and asked for an adjournment to a later date. And yet, the Court in proceeding to hear and entering ex parte orders in the face of that letter explaining the absence in my humble view was quite improperly made; especially in the absence of the Applicant/Defendant.

15: On the basis of the above discussions I consider that the subject ex parte order of this Court of 30th August, 2012 was but irregularly entered. The case law developed in this jurisdiction is perfectly clear on this point; any ex parte order entered irregularly must, as a matter of principle, be set aside. See Bsp -vs- Spencer (supra). I therefore consider that the ex parte order of this Court of 30th August, 2012 was irregularly entered; and so as a matter of principle, this ex parte order is hereby set aside forthwith!

16: The formal Orders of the Court are:

1: The ex parte order of this Court of 30th August, 2012 is set aside forthwith.

2: The issue regarding Order No 4 of the order of this Court of 14th November, 2011 shall be heard inter parte before the Grade V Court at Lae District Court.

3: Matter is formally transferred for hearing at the Lae District Court.

4: Costs of proceeding shall be in the cause.

_______________________________________

Lawyers:

1: The Morobe Provincial Administration Legal Services Unit, Lawyer for the Applicant/Defendant.

2: Warner Shand Lawyers, Lae; Lawyers for the Respondent/Intervener.