National Airlines Commission trading as Air Niugini v Lau [1997] PGNC 28; N1538 (20 March 1997)

Unreported National Court Decisions

N1538

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 319 OF 1996
BETWEEN:
THE NATIONAL AIRLINES COMMISSION Trading as AIR NIUGINI - Appellant
And:
SENIOR LAU - First Respondent

Mount Hagen

Lenalia AJ
7 March 1997
20 March 1997

CIVIL JURISDICTION - Appeal - Appeal from decision of the District Court - SS. 219 & 230 of the District Courts Act (Ch. No. 40) Ex-parte Orders- No contract known in law - Common Law principle of equity discussed.

Counsel:

P Dowa for the Appellant

Respondent in person

4 April 1997

LENALIA AJ: This is an appeal from the ex-parte decision of the Wabag District Court made on 17th of October 1996 against the Appellant for a sum of K1,174.00 plus costs of K500.00 and an interest of 8% in the sum of K132.12 bringing the grand total to K1,811.12. This order was made payable within one (1) month from the date of service of such orders. When the appellant was served with the orders, their lawyer intended to apply for the ex-parte orders to be set aside. Although this fact is not specifically pleaded in evidence, I managed to obtain this source of information from the hand-written transcript of what transpired on the 1st of November, 1996.

The facts of this appeal are fairly simple and they appear succinctly from the Notice of Affidavit furnished by the respondent at the time of the hearing, see pages 20-23 of the Appeal Book. A Complaint and Summons Upon Complaint was prepared and taken out against the appellant for costs incurred on travelling, meals and accommodation expenses by the respondent whilst trying to recover a sum of K274.00 which was converted into MCOs by the Appellant’s agent in Wapenamanda. The respondent’s two children had missed their flight on the date they were scheduled to travel and the Appellant’s agents issued MCO’s to the respondent to recover the amount latter. The two children C. Lau and F. Lau were booked to board the Air Niugini flight from Wapenamanda on 29th January 1995. The flight was delayed due to mechanical fault and was re-scheduled to the next day. It was only one day delay but the respondent demanded an MCO which was issued under his name: see page 35 of the Appeal Book. The total expenditure claimed by the respondent amounted to K1,174.00. The respondent eventually recovered the amount in the MCO.

He sued the Appellant for sums advanced on trips taken forth and back from Laiagam to Wapenamanda and Laiagam to Mount Hagen. Included in the amount claimed was for food and accommodation.

The Amended Notice of Appeal has nine grounds of appeal. They are:

1. The learned Magistrate erred in law in hearing the complaint when the defendant was not present when the Court was advised of the reason for the defendant’s absence.

2. The learned Magistrate erred in law entering a default judgement when the matter was commenced by an ordinary summons.

3. The learned Magistrate fell in error in giving undue weight and consideration to the evidence adduced by the complainant.

4. The learned Magistrate erred in law in accepting the Complainant’s claim as it disclosed no reasonable cause of action.

5. The learned Magistrate erred in accepting the complainant’s claim when the complainant did not have any standing in the proceedings.

6. The learned Magistrate erred in making an award which was not supported by any evidence at all.

7. The learned Magistrate erred in making an award which was an unjust enrichment on the Complainant.

8. In the premises there was a substantial miscarriage of justice.

9. That such other grounds as may become available after receiving reasons of the decision.

Despite the nine grounds contained in the Amended Notice of Appeal, Mr Doa briefly argued grounds 1-7. Grounds one and two can be put together from procedural point of view that when the appellant defaulted in appearance, the presiding magistrate proceeded ex-parte despite being informed of the appellant’s lawyer inability to appear on the date set for hearing at the Wabag District Court namely, the date on which the ex-parte orders were made. see pages 27 to 28 of the Appeal Book. Ground one and two allege that his Worship erred in law because he entered a default judgement. The phrase “default judgement” may mean two things. First it may mean that when the Appellant’s lawyer defaulted in appearance the learned Magistrate at Wabag proceeded ex-parte thereby entering ex-parte judgement. In the second sense of the term, when a default judgement is entered it relates to proceedings that are commenced pursuant to PART VIII Division 3, SS. 155 and 156 of the District Courts Act (Ch. No. 40). Section 155 defines “default summons” to mean a summons issued under S. 156. It is in the following terms:

“Notwithstanding anything in this Act, other than Section 21, on complaint made in respect of a debt or other liquidated demand in money payable by the defendant the Magistrate or Clerk before whom the complaint is made shall, instead of issuing a summons to the defendant in the ordinary form, if so required by the person making the complaint, and subject to this Division, issue a summons to the defendant under this Division.”

Ground two of this appeal may not be correct in the strictest terms of the term “default judgement”. It is correct though in the sense that the presiding Magistrate proceeded ex-parte because the order made on 17th of October 1996 reads:

“Ex-parte judgement entered in favour of the complainant in the sum of K1,174.00 plus costs of K500.00 and 8% interest of K132.12 a total of K1,811.12 to be payable by the third defendant within one (1) month from the date of service of the order.”

In the civil track, there are two distinct modes of summonses that may be issued by the District Court, see SS. 41 (2), 42 (2) and 133, 155. The first type is a Summons Upon Complaint. This type is appropriate in those circumstances where an unliquidated demand is being sued and is directed to the person named in the complaint against whom the complaint is made and with specific demand requiring that person to appear at a time and place appointed in the summons. The second type is a default summons: see SS. 155, 156 & 157. The latter type is issued in respect of a debt or a liquidated demand. In this sense a liquidated demand must contain concise particulars of the complainant’s claim with dates, items and prices of value must be endorsed or annexed to the Summons. Proceeding in relation to default summons is governed by Division 3 of Part VIII of the District Courts Act.

The learned Magistrate proceeded ex-parte pursuant to S. 143 of the Act. This section provides that where a defendant does not appear at the place and time specified in the summons or at the place and time to which the hearing was adjourned and the Court is satisfied upon oath that service has been effected 3 clear days before the hearing or notice of adjournment has been given may proceed ex-parte and determine the complaint. I note from S. 143 (b) that the magistrate would have proceeded ex-parte only if he was satisfied that no sufficient grounds were shown for an adjournment. The use of the term “may” in the same Subsection implies the use of discretionary powers to determine the question of whether to proceed ex-parte or to adjourn further upon being satisfied on sufficient grounds. In my view, I think the lawyer for the Appellant made all necessary arrangement to attend on 17th October 1996, somehow he could not board his intended flight. Failing to travel he immediately contacted the Senior Magistrate at Wabag, then the Clerk of Court on the same date. This in my view the appellant’s lawyer had shown sufficient and reasonable grounds for an adjournment. I would uphold ground one and two of the appeal.

On close examination of the affidavit evidence presented before his worship it would seem that the respondent filed three separate affidavits. the first of its type is found on pages 20-23 of the appeal book. I note that the first one is wrongly captioned ‘NOTICE OF AFFIDAVIT’. The format does not comply with the requirement of both the District and Evidence Acts. It was not made under oath nor was it sworn before a Commissioner for Oaths. That in my view was defective and thus could not have been accepted into evidence. The Second affidavit at page 25 of the Appeal Book relates to another complaint commenced by the respondent against the Enga Provincial Government. Upon perusing its contents I do not think it is related to the proceedings the subject of this appeal. The third a affidavit appears on page 26 of the appeal documents and is the summary of the respondent’s claim on which the grand total was put at K5,051.12. I would not work out how the respondent arrived at this figure since the Complaint and Summons Upon Complaint bare the amount of K1,174.00. Basically what was claimed in the Complaint was awarded without proper assessment if his worship found there was a cause of action.

The hand written transcript of what transpired on October 17, 1996 is very brief and the first page of the worksheet, see page 40 of appeal book, does not appear clearly. It would appear that the court noted down comments and the concern of the respondent in paragraph form.

At the back of the same worksheet, he noted that after having perused the affidavit of the respondent and the supporting documents, he was satisfied about the respondent’s claim and thus decided to award an ex-parte judgement. Even as it was with the claim, when his worship decided to enter an ex-parte order, he had the discretion to assess the damages. Applying S. 22 (b) of the District Courts Act which says that the District Court ought to give the same effect to every ground of defence or counterclaim be they equitable or legal as ought to be granted in a similar case by the National court. I am also fortified in this view by O. 12 r 28 of the National Court Rules. I quote rule 28 of O. 12.

“28. Unliquidated damages

Where the plaintiff’s claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgement against that defendant for damages to be assessed and for costs.”

By the look of pleadings placed before his worship, it appears to me that the claim was a mixed claim. That is it may have been both liquidated and unliquidated. In any event if that was the case, the magistrate had the discretion to give direction to the respondent to file better and further particulars.

The fourth ground of this appeal was argued in detail. It is alleged by the Appellant that the respondent’s claim discloses no reasonable cause of action. This appears to me to be the main reason. The law only recognizes actions commenced for a breach of contract or tort whether equitable or legal. The respondent claimed in the District Court for monies incurred while making enquiries to recover an amount in the MCO amounting to K274.00. No contract was entered into between the appellant and respondent on any likely damages that would arise from a delayed flight. On perusal of the transcript of the learned magistrate, his worship noted that the flight was re-scheduled to the next day. No trouble would have arisen had the respondent tried to secure confirmed bookings for the next day. No receipts were produced as evidence of expenditure by the respondent. He travelled from Laiagam back and forth to Wapenamanda and Hagen. The respondent chose to attend to this matter in Mt Hagen other than in Wapenamanda. He was informed by the Area Manager in Wabag that their telephone was out of order and was informed to attend to the matter in Hagen. In that defective affidavit I have alluded to earlier, the respondent spells out the basis of that claim. I have noted the respondent’s expenditure were extravagance. The respondent claimed the following commencing at paragraph 3.1:

3.1 That on the 9th day of February 1995 I had spent K60.00 for car and/or travelling expenses, and K28.00 on food. Total of K88.00.

3.2 That on 10 February 1995 I had spent K80.00 on use of a vehicle and K35.00 on food. Total of K115.00.

3.3 That on 17 February 1995 I had spent K48.00 on PMV and food. Total of K48.00.

3.4 That on 20 February 1995 I had spent K53.00 on PMV and food. Total of K53.00.

3.5 That on 22 February 1995 I had spent K18.00 on PMV and food. Total of K18.00.

3.6 That on 14 March 1995 I had spent K114.00 on both vehicle hire and food. Total of K114.00.

3.7 That on 16 March 1995 I had spent K46.00 on PMV and food. Total of K46.00.

3.8 That on 17 March 1995 I had spent K97.00 on PMV and food. Total of K97.00.

3.9 That on 20 March 1995 I had spent K190.00 on vehicle hire, meals and accommodation. Total of K190.00.

3.10 That on 21 March 1995 I had spent K105.00 on vehicle hire and meals. Total of K105.00.

3.11 That on 3 April 1995 I had spent a total of K96.00.

3.12 That on 4 April 1995 I had spent a total of K109.00.

3.13 That on 5 April 1995 I had spent a total of K98.00.

3.14 That on 6 April 1995 I had spent a total of K115.00

3.15 That on 27 April 1995 I had spent a total of K85.00

3.16 That on 5 May 1995 I had spent K80.00 on vehicle hire and meals. Total of K80.00.

3.17 That on 11 May 1995 I had spent K147.00 on vehicle hire and meals. Total of K 147.00.

3.18 That on 12 May 1995 I had spent K110.00 on vehicle hire and meals. Total of K110.00.

4. Loss total is K1714.00.

5. In addition to the above is the 8% interest of K127.12.

6. Cost of expenses, paperwork, transport and meals - K500.00.

7. Time on economical days as per calculation at K150.00 a day x 18 days = K2,700.00.

8. And that any other expenses incurred can be ordered to be covered by the Defendants.

9. Other orders that the Court seems fit.

I cite two examples of what I consider to be excessive spending by the respondent. This is particularly where he claimed for either hire or use of vehicles during the period he alleged to have attended to his queries about the MCO. He says in paragraph 3.1 that he travelled from Laiagam to Wabag on 9th of February, he spent K60.00 for travelling expenses and K29.00 for food alone. This amounted to K88.00. The second example is found in paragraph 3.2 where the respondent said he travelled from Laiagam to Mount Hagen on 10th of February the same year, he spent K80.00 for the use of a vehicle and K35.00 alone on food. Had he on those two occasions eaten in hotels that should be evidenced by producing receipts. This did not happen. In any event, I find that there was no basis either in law or in equity for the respondent to have claimed so much from the appellant. I also uphold ground four.

Ground five of the appeal relates to the respondent’s status to claim saying he had no standing in the proceedings. I note from the hand-written transcript of the magistrate who presided on 6th of June 1996 that although she found that the amount of K274.00 was for two tickets for C. Lau and F. Lau, the Air Niugini management allowed the claim to be made under his name because the MCO was paid to the respondent. There is no evidence as to how old were the two children. Be that as it may, a person under 21 years of age may sue in a Court in all respects as though if he or she were of full age or by his or her next friend or “guardian ad litem”. I quote S. 39 of the District Courts Act:

“39. Infant may sue.

(1) A person under the age of 21 years may sue in a Court in all respects as if he were of full age.

(2) A person of or over the age of 16 years may be sued in a Court in all respects as if he were of full age.

(3) Notwithstanding Subsections (1) and (2), where it is necessary or desirable in the interests of justice to do so, a Court before which a person under the age of 21 years sues or issued may appoint or require the appointment of a next friend or guardian ad litem of that person.”

Supposing that the MCO was made out under the name of the respondent, it was appropriate for him to make the claim in his name. As alluded to by the magistrate who presided on 6th of June, 1996, she was satisfied that the respondent had “locus standi”. I would respectfully agree with him and ground five must therefore fail.

I think that ground six and seven of this appeal have both been exhaustively discussed in grounds three and four and for the same reasons stated in grounds 3 & 4, I would also uphold grounds 6 and 7. The only other remaining ground touches on miscarriage of justice. Having uphold grounds 1, 2, 3, 4, 6, and 7 of this appeal, I am more than compelled in agreeing that there was a miscarriage of justice and I must therefore quash the orders of the said District Court made on 17th of October 1996 and order costs in favour of the Appellant.

Lawyer for the Appellant: P Dowa Lawyers

Respondent in person