James v Guard Dog Security Ltd [2016] PGDC 14; DC2098 (19 July 2016)

DC2098

CIVIL JURISDICTION

PAPUA NEW GUINEA

IN THE DISTRICT COURT HOLDEN KIMBE

BETWEEN:

TIMOTHY JAMES

Applicant

And
CHARLIE GADA
Applicant
And
GUARD DOG SERCURITY LTD
Defendants

P.M. TIVESE: KIMBE
19^th July 2016

APPLICATION TO SET ASIDE A EXPARTE ORDER-Compensation award of K5000.00 for Damages-
Injuries sustained, fractured Ulna on right hand. Whether the District Court should set aside
the exparte order –District Court Act S25,

Cases cited.

Green & Co Pty Ltd (Receiver appointed) v Rodger Britain Green [1976] PNGLR 73
Wallingford and The Directors and C of Mutual Society (1888) 5 App. cas. at 704

Legislations: District Court Act 1963.

First Applicant in person Second Applicant appearing by lawyer,
Respondent does not appear

ISSUE: Whether or not the Court can grant a application to set aside a Exparte Order.

19.07.16

1. The applicants are aggrieved by the decision of the District Court ordering them to pay K5000.00 with costs of K500.00.
   
2. The normal process after a court enters a order is to appeal against its decision. This is a exception because S 25 of the District Court Act allows a aggrieved party to apply to set aside a exparte order.
   
3. Green & Co Pty Ltd ( Receiver appointed) v Rodger Britain Green [1976] PNGLR 73, sets out the principles, which a applicant needs to satisfy before a court before the court can grant a application to set aside a exparte order.
   
4. The following are the principles which must be contained in the application to set aside -

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

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

c. The application must be made promptly.

5. The lawyer for the applicants filed a affidavit dated 18^th of May 2016 .She contended that, the first applicant had filed appropriate documents and raised a valid defense contained in the defense dated 25^th June 2015.
   
6. The second document the counsel referred to is the Defense she filed on behalf of the first applicant denying that; he caused the injury to the respondent
   
7. She referred to the defense raised by the first applicant’ stating that, the respondent himself started the fight .He denied instigating the fight and kicking the respondent .Further more in his defense, he said the respondent has to prove actual damages with proof of a x-ray accompanied by a Medical report .
   
8. She blamed the problem with the exparte order on the Kimbe District Court Registry staff, for not being helpful in liaising with the applicants in relation to the court dates.
   
9. She contended that, she was not able to give dates for adjournments due to the uncooperativeness’ of the Kimbe District Court registry staff. She attached two letters from their Kimbe office advising her of the dates for hearing to 30^th June 2015 and a letter from herself seeking an adjournment to 26^th of November 2015.
   
10. A affidavit stating a defense on merit should explain further, what actually happen to show that, the first applicant did not assault the respondent sustaining a fractured ulna.
    
11. I find that, the affidavit contained denial only by the first applicant of his involvement in the incident which resulted in the injury sustained. It is not sufficient to say, I did not kick the respondent. There must be some further explanation to explain how or why the first applicant denied being involved in the incident which led to the injuries sustained by the respondent. O’Leary AJ,in Green and Co Pty Ltd v Green supra, cited Lord Blackburn in Wallingford V The Directors and C of Mutual Society (1888 ) 5 App. cas. at 704.Commenting on a defense raised for a charge for frauds said the defendant must “condescend upon particulars. It is not enough to swear, I owe the man nothing, doubtless, if it was true, that you owe the man nothing, as you swear, that would be a good defence.But that is not enough. You must satisfy the judge that there is a reasonable ground for saying so. So again if you swear that there was fraud that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise that defence.And in like manner as to illegality, and every other defense that might be mentioned.”
    
12. Similarly, I find that, the defense that was raised by the applicant fall short of what is required by the law that is, the defense raised must have a defense on merit.
    
13. Furthermore, in their defense, the first applicant wanted the respondent to prove the injury by producing a medical report. A proper hearing was conducted and a medical report was tendered and accepted by the court. The medical report was dated 10/04/15 .The notation on the medical report filed, stated that, the respondent sustained a swollen arm. An x/ray was ordered and x-ray no T2072 showed that, the respondent’s ulna was fractured due to a fight dated 28th March 2015.
    
14. Base on this medical report the presiding Magistrate assessed the damages and awarded the compensation of K5000.00.I therefore find the applicant did not prove they a have defense on merit.
    
15. Second principle which, the applicants must prove is for them to give a reasonable explanation as to why the judgment was allowed to go by default.
    
16. To appreciate and understand my explanation, I will detailed the chronology of the events that took place from the filing of the complaint to the date of judgment.
    
17. This matter was set for mention on the 21^st of May 2015 at 9.30 am. For some unknown reasons, it was not mentioned on the 21^st of May, but further adjourned to the 26^th of May 2015.
    
18. On the 26^th of May the complainant appeared but there was no representation from the defendants.
    
19. A Proof of service was filed and in order, yet both the first and second defendants showed no appearance.
    
20. On the 26^th of May the matter was adjourned to 9^th of June for exparte hearing. A written notice was processed by the civil clerk and collected by the respondent to be served on the defendants.
    
21. On the 9^th of June the matter was not called .A notice was again processed and collected by the respondent for both parties to appear on the 16^th of June 2015.
    
22. On the 16^th of June the case was not mention before the court, but a notice was written by the civil clerk for the parties to appear on the 23^rd of June 2015 at 1.30 pm. There was no explanation noted on the file why the case was not mention.
    
23. On the 23rd of June 2015 a defense was filed with a notice of intention to defend and a notice of appearance by the defendant’s lawyer .On the 23^rd of June a new notice was sent to both parties to appear on the 30^th June 2015 at 1.30 pm.
    
24. On the 30th of June 2015, the complainant and his lawyer appeared and the defendants fail to appear. The matter was adjourned to 14^th July 2015 at 9.30 am.
    
25. On the 14^th of July, the complainant appeared and the defendants again fail to appear.
    
26. The court adjourned for mention again on 23^rd of July at 1.30 pm.
    
27. There was no notation on the file dated the 23^rd of July 2016. The file was left until 11^th of August 2015.On the 11^th of August 2015 the complainant was present and the defendants were not present. A notation on the file read, Lawyer at National Court .Matter adjourned to 27^th of August 2015 at 1.30 p.m.
    
28. On the 27^th of August, the complainant was present but the defendants and their lawyer were not present. The case was adjourned to 10^th of September at 1.30 p.m.
    
29. The court did not mention the matter on the 10^th of September but a notice was written and served on the complainant and the defendnats to appear on the 17^th of September 2015 at 1.30 pm.
    
30. On the 17^th September, the respondent appeared and both applicants failed to appear again. The matter was adjourned to 1^st of October at 1.30 pm for exparte hearing. On this date, the respondent was ordered to file an affidavit.
    
31. On the 1^st of October the case was not call again. However, a notice for hearing was served on both parties to appear on the 29th of October at 1.30 pm.
    
32. The case was not called on the 29^th October .It was shelf until the 4^th of November 2015. A new notice was sent to both parties to appear on the 10^th of November 2015 at 9.30 a.m.
    
33. On the 10^th of November the case was adjourned to 12 th of November 2015 at 1,30 pm
    
34. On the 12^th of November the matter was again adjourned because the defendant was not present. The matter was adjourned to 19^th of November 2015.
    
35. On the 19^th of November 2015, the case was adjourned to 26^th of November 2015 for mention. The complainant was present but the defendants were not present.
    
36. On the 26^th of November the case was adjourned to 3^rd of December 2015.
    
37. On the 3^rd of December 2015, the matter was adjourned to 22nd of December at 9.30 am for hearing. Both parties appeared but without their lawyers.
    
38. On the 22rd of December the matter was adjourned to 12^th of January 2016 for hearing .The respondent appeared and the applicant did not appear.
    
39. On the 12^th of January 2016 the respondent was present and the defendants were not

Present. The matter was further adjourned for exparte hearing on the 25th of February 2016 at 1.30 pm.

40. The matter was not called on the 25^th of February 2016.It was left outstanding in the registry until the 1^st of March 2016.On the 1^st of March 2016 a new notice for hearing was served on the parties to appear on the 3^rd of March 2016 at 1.30 pm..On the 3^rd of March the court proceeded to hear the case exparte .
    
41. After hearing, the matter was adjourned to the 8^th of March 2016 for decision. On the 8^th of March 2016 a order was made in favor of the complainant for a sum of K5, 000.00.
    
42. A copy of the court order was served on the defendants. They did not take any notice of this order and the complainant returned to the registry and obtained a warrant of execution dated 14^th April 2o16.When the defendants noticed that the Police were trying to execute the Warrant of execution, they alerted their lawyer who filed this application to set aside the warrant of execution and the exparte order.
    
43. After presenting the record of the adjournments, I now pause a question .Was there a reasonable explanation as to why the judgment was allowed to go by default?
    
44. There were a total of thirty one adjournments before a court order was finally entered. From the court deposition, the applicants only appeared once before the court on 22^nd of December 2015 without their lawyer. On the 22^nd of December the matter was adjourned to 12^th of January .After that, the applicants stopped making any appearances before the court.
    
45. The first time the applicants showed any interest in this matter was on the 23^rd of June 2015.This was when their Lawyer filed her notice of appearance and also filed the defense from the first applicant. After this, they went on a vacation and blamed it all on the registry clerk. I find no fault with the registry clerk .She had always issued a notice after each adjournment. All copies of these notices are attached to the court file.
    
46. I see no excuse why the first applicants failed to appear after the 22^nd of December .He was told in court that the matter will be heard on the 12^th of January 2016 ,yet he failed to attend .The adjournments were allowed because of the none appearance of the applicant and his lawyer. Delayed justice is not justice.
    
47. There was no reason as to why the first applicant was not responding to the notices from the court.
    
48. There is evidence that the applicants were following the case .The two letters tendered to the court with their defense showed that a Mr. Alex Tokavai wrote to their Legal Secretary giving updates on the progress of the case.
    
49. He advised that, the Notice of intention to defend, and a notice of Appearance and A Defense have been filed and served on the respondent. .
    
50. .A second letter dated 17^th of November 2015 from the same writer Mr. Alex Tokavaiwas again sent advising the same legal secretary of the next date of hearing to the 17^th of November 2015.
    
51. Following this second letter, the Lawyer Ms Manoel Maburau wrote a letter to the Clerk of Court dated 18^th of November 2015 asking the court to have the matter adjourned to the 26^th of November 2015.
    
52. The court granted a adjournment following the lawyer’s request .The matter was adjourned to the 26^th of November 2015 as requested by the lawyer. Interestingly, neither the Lawyer nor the first applicant appeared before the court on the 26^th of November 2015.
    
53. After, this no further action was taken by the Applicants or their lawyer until a warrant of execution was taken against the defendants. They had the knowledge about the status of the case but they did not consider this matter as important or a priority.
    
54. On the 31^st of May 2016 the defendant’s lawyer filed a application asking the court to set aside the exparte order and the warrant of execution.
    
55. I find that, the first defendant actually lives in Kimbe. It seems he had left everything to his Lawyer in Port Moresby. There is no explanation as to why he was not attending all the mentioned dates. A reasonable person after receiving a summons should expect to receive a court order and would enquire about his case at the Kimbe District Court registry.
    
56. During the hearing the applicant’s Lawyer blamed the Kimbe registry Clerk. On my perusal of the court file, I noted that, the clerk have always prepared notices and served on the complainant who was the only one attending to all the adjourned dates. I do not see where the clerk contributed to this one year delay in completing the case.
    
57. For the defendants, I find they were responsible for the delay. Their reasons for none appearance for more than thirty adjournments was not explained. Instead, they sifted the blame to the registry clerk.
    
58. Therefore, all in all, I find that there was no reasonable excuse why the matter was allowed to be heard exparte.
    
59. The last issue for the applicant is to satisfy this court that, their application to set aside the court order must be made promptly. The order was made on the 8^th of March 2016.A warrant of execution was processed and issued on the 14^th of April 2016.
    
60. A application to set aside must be made within a reasonable time frame. A reasonable time frame would be thirty days to three months after the date of the order. I am made to think that, the applicants were expecting the case would die away .They did not expect that, the respondent would be so determine to prosecute this matter to the end. A court order was served on the applicants but still they did not respond .They only responded after the respondent took up a warrant of execution .It was then, they realized that, the applicant was serious so they engaged their lawyer to file this application. I find the case was filed after a warrant of execution was taken, but within a reasonable time frame.
    
61. Having considered all the evidence before this court I find that the applicants have not proved that, they have a defense on merits .I also find that, they failed to give a reasonable explanation as to why they allow the case to proceed to exparte hearing resulting in a judgment against them.
    
62. Lastly, I find their application to set aside a exparte order and the warrant of execution was filed within a reasonable time. However, they failed to prove the other two principles -a. Their affidavit did not state facts showing a defense on merits and there was no reasonable explanation stated in their affidavit as to why a judgment was allowed to go by default.
    
63. Orders made accordingly.