Taupa v Wuliman [2021] PGDC 32; DC5090 (3 March 2021)

DC5090

PAPUA NEW GUINEA

In the District Court of Justice at Kokopo

(sitting in its Civil jurisdiction)

CV 724 OF 2020

BETWEEN

ROBIN TAUPA

Complainant/Respondent

AND

EMMAH WULIMAN & ALOIS CLETUS

Defendants/Applicants

KOKOPO: J. AMANU

2021: 03^rd March

CIVIL – Practice and Procedure - Application to set aside order which strike out Applicant’s earlier Notice of Motion – Application to set aside ex- parte order – Earlier application not moved thus was dismissed out for want of prosecution

CIVIL – Practice and Procedure - setting aside ex –parte order- s.25 of District Courts Act considered – Legal principles discussed – Continuous non- appearance by parties and or their lawyers without genuine reason not acceptable – there must be an end to litigation

Legislation cited:

District Courts Act

Case Authorities cited:

Green & Co. Pty Ltd vs. Green [1976] PNGLR 73

Counsel:

Complainant/Respondent – In Person

Defendants/Applicants – Mr. Yange briefed by Paisat Lawyers

03th March 2020
1. J AMANU. This is my ruling in respect to the Defendants/Applicants’ application filed by way of Notice of Motion on 17^th December 2020. The applicants seek the following orders:-

1. That the order made on Monday 14^th 2020 to struck out the Defendant/Applicants’ Notice of Motion be set aside.
2. That pursuant to Section 25 of the District Courts Act, the Ex-parte Orders issued on the 23^rd of November, 2020 be set aside forthwith.
3. Costs of this proceeding.
4. Any other or further orders the Court deems fit.
   

EVIDENCE
2. The Applicant relied on the Affidavit in support of Alois Cletus sworn on 16^th December 2020 and filed on 17^th December 2020.

LAW
3. Section 25 of the District Courts Act is the relevant provision relied upon thus I set out as follows:-
“A conviction or order made when one party does not appear may be set aside on application to this 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 file and direct such notice of the adjourned hearing ast it thinks fit to be given a penalty.”

ISSUES:
4. The issues before this Court are:

1. Whether this Court can set aside an order of Monday 14^th 2020.
2. Whether the ex – parte order of 23^rd November 2020 be set aside
   

APPLICANTS’ ARGUMENTS
5. Mr. Yange who stood in for Mr. Paisat submitted that the application was made promptly on 02^nd December 2020 but there was misunderstanding on timings thus it was dismissed. This application was made to set aside ex-parte order of 23^rd November 2020 pursuant to s. 25 of the District Courts Act. Mr. Yange further submitted that there is a meritorious Defence which the Court must take into consideration and set aside this ex-parte order of 23^rd November 2020.

RESPONDENT’S ARGUMENTS
6. The Complainant/Respondent, in person, basically submitted that he has been coming to Court since the filing of this proceeding and the Defendants were unnecessarily and deliberately avoiding attendance. He further submitted that the Defendants were given opportunity to defend on numerous occasions but they failed thus their application should be dismissed.

CONSIDERATION
7. I have considered both parties’ oral submission and the relevant evidence on filed. Before I proceed I set out below the conduct of the proceeding for the benefit of both parties

Conduct of Proceeding.

1. Complainant and Summons to a Person Upon Complaint was filed on 24^th September 2020.
2. First mention on 21 October 2020.

100. On 21 October 2020, the Complainant appeared but no appearances from the Defendants. Matter was adjourned for complainant to notify the Defendants.

4. On 4^th November 2020, Complainant was present and Mr. Paisat of Paisat Lawyers appeared for the Defendants – Matter was adjourned to 18 November 2020 with directions for parties to file and serve affidavits.
5. On 18 November 2020, the Complainant appeared and has complied with Court’s directions. There were no appearances for the Defendants – Matter was adjourned to 23 November 2020 at 9.30am for hearing.
6. On 23 November 2020, the Complainant appeared but there are no appearances from the Defendants. The complainant apply to proceed ex-parte of which the Court granted leave and proceed ex-parte hearing base of affidavit material, subsequently an Ex-parte Order was made.
7. On 02 December 2020, a Notice of Motion was filed by Paisat Lawyers on behalf of the Defendants to set aside the ex-parte order of 23 November 2020 with supporting affidavit. This Motion was returnable on 14 December 2020.
8. On 14 December 2020, the Complainant was present but there was no appearances from the Defendants-Complainant moved to dismiss the Motion of which the Court granted the application since there is no explanation of the Defendants’ non-appearance to prosecute their application – Notice of Motion dated 2 December 2020 was dismissed for want of prosecution.
9. On 17 December 2020, Paisat Lawyers filed another Notice of Motion on behalf of the Defendants to set aside the order of 14 December 2020 and subsequently to set aside the ex-parte order of 23 November 2020. This Notice of Motion was returnable on 18 January 2021.
10. On 18 January 2021, both parties were not present. The Application was adjourned to 25 January 2021.
11. On 25 January 2021, the Frist Defendant was not present. The Complainant and the 2^nd Defendant were in attendance. Mr. Paisat sought leave to appear without a practicing certificate but leave was refused. Matter was adjourned to 1^st February 2021 for hearing of the Defendants’ application.

50. On 1^st February 2021, Mr. Yange of Island Legal Services stood in for Paisat Lawyers and moved the Defendants’ application. This is the ruling on that application.
    

8. Section 25 of the Act gives this Court jurisdiction to set aside ex-parte orders. This law is guided by legal principles such as those set out in the famous case of Green & Co. Pty Ltd vs. Green [1976] PNGLR 73.

9. These principles are:

1. The application must be made promptly.
2. There must be explanation as to why judgment is entered ex-parte.
3. The applicant must show that he has a meritous Defence.
   

10. These legal principles have being applied and expanded on numerous National and Supreme Court cases.

11. The District Court whilst invoking s. 25 of the Act must be guided by the above principles and to observe the principle of natural justice and to eradicate any abuse of court’s process whether intentionally or unintentionally by litigants.

12. According to the conduct of proceeding, it is apparently obvious that the Defendants have not being attending to Court dates. The matter was set for hearing on 23^rd November 2020 by an order of the court. On the 23^rd November 2020 the Defendants did not appear and did not show any reasonable explanation as to why they did not appear. Furthermore, the Defendants have not complied with this Court’s directions leading to the date of hearing. After the ex-parte order was made on 23 November 2020, an application was filed. However, they did not, again, attend and move their application thus it was dismissed. The Defendants actions or inactions are to my mind unacceptable and have abused the smooth conduct of the proceedings. I find that the Defendants are not in any way prejudiced since their opportunity was not utilized accordingly.

13. Upon careful consideration of affidavit materials, I find that the reason for not attending to Court was in respect to the Applicants’ first Notice of Motion filed on 02^nd December 2020. The reason was basically that this Court was dealing with Raniolo settlers’ case and Mr. Paisat of counsel for the Applicants thought the matter was not listed and will enquire with the Clerks later. This resulted in the Applicants’ initial Notice of Motion struck out.

14. I find that this is not a genuine reason. Counsel did not check the daily listing and was only assuming at that time. The matter was listed because the Applicants’ Notice of Motion was returnable on 14^th December 2020. I therefore find that the Applicants’ first order sought in this Application is refused.

15. In respect to the second order sought in this Application, I find that there is no reasons explaining why the Applicants or and their lawyer failed to appear which resulted in the ex – parte order entered on the 23^rd November 2020. The Affidavit materials relied upon did not explain the reasons for their non- appearance on the 23^rd November 2020.

16. The Court gave directions for parties to comply which the Applicants/Defendants failed to do so although they are being represented. The Respondent/Complainant was unrepresented but he did complied with court directions. Furthermore, the Applicants or their lawyer did not appear on the date of hearing which resulted in the ex – parte order entered on the 23^rd November 2020. The second principle was not satisfied on the basis of my reasoning stated above.

17. The Defendants may have a valid Defence, however, their opportunity through the first application filed on 02^nd December 2020 was dismissed for want of prosecution. The Applicants/Defendants cannot have a “second bite to a cherry” so to speak. The Court cannot keep entertaining litigants who do not respect court dates and not appearing and using s. 25 of District Courts Act and legal principles to abuse court process. This practice must be discouraged. There must be an end to litigation.

18. Furthermore, as the Applicants/ Defendants were represented, I find no draft Defence annexed to the Applicants’ affidavits. They have filed Notice of Intention to Defend thus it would be a good practice to annex a draft Defence to an affidavit to show that the Applicants/ Defendants have a Defence on merit. In the absence of such I find that the third principle is not fully satisfied.

19. Finally, the Applicants/Defendants have raised issue in their affidavit in respect to the proceedings file reference number. According to record, the Complaint has a file reference number as CV 917 of 2020 but the Summons to A Person Upon Complaint has FID: 789966, 724 of 2020 and CV (719) of 2020. Obviously there may be discrepancies in the file reference number; however, this argument alone cannot be a ground to set aside the ex-parte order. It is not a legal principle established in setting aside ex- parte orders. Furthermore, this discrepancy is not fatal to the conduct of the proceeding as a whole. In fact court documents including the Applicants’ applications were filed under CV 724 of 2020 so it does not invalidate the entire proceedings.

20. Base on the above reasoning, I dismiss the Defendants’ application by way of Notice of Motion filed on 17 December 2020 with costs.

FORMAL ORDERS.

1. The Defendants/Applicants application by way of Notice of Motion filed on 17 December 2020 is refused.
2. The Defendants/Applicants shall pay the costs of the application to the Complainant to be taxed if not agreed.
3. The Defendants shall comply with the Court Order of 23 November 2020 within 30 days from today (03/03/21).
4. In default, warrant of execution be issued.
   

Orders accordingly.

Lawyers for the Complainant/Respondent: In Person
Lawyers for the Defendants/Applicants: Paisat Lawyers