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 payaite 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. Althohis fact is not specispecify pleaded in evidence, I managed to obtain this source of information from the hand-writtenitten transcript of what transpired on theof November, 1996.

The facts of this appeal are fair 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. Alaint and Summons Upon Coon Complaint was prepared and taken out against the appellant for costs incurred on travelling, meals and accommodation expenses by theondent whilst trying to recover a sum of K274.00 which was 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 u and F. d 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 wascheduled to the next day. It was one day delay elay elay but the respondent demanded an MCO which was issued under his name: sge 35 of the Appeal Book. The total diture claimclaimclaimed 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 Wapena and Laiagam to Mount Hagen. Ied in the amount claimed imed was for food and accommocommodation.

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

1. &##160;; T60; The leae 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 ae.

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

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

5. The learagisterredccepting the comp complainalainantnt’s claim when the complainant did not have any standing in the proceedings.

6. 𧍘&#1he le Magie erre err making aing an awan award whrd which wich was noas not supt supported by any evidence at all.

7. ـ The learned tagis eate erred in making an award which wach was an unjust enrichment on the Complainant.

8. ـ҈ e pre there was a substantial miscarriage of justice.

9.&#19. < &##16; Tha; That such such other gr as mcome available after receiving reasons of the decision.

Despite the nine gine groundrounds contained in the Amended Notice of l, Mrbriefgued grounds 1-7. 1-7.&#160 Grounds one ao can be put put toge 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 pageto 28 of the AppeaAppeal Book. d one and two allege that that his Worship erred in law because he entered a default judgem#160; The phrase “default judgement” may mean two things. First it may meay 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 secense e term, whe, when a default judgement is entered it reit relates to proceedings that are commenced pursuant to PART VIII DivisioSS. 155 and 156 of the District Courts Act (Ch. No. 40). Sectio defines “d220;d220;default summons” to mean a summons issued under S. 156. It is i following terms:

“Notwithstanding anything in this Act, other than Secti, on complaint made in resp 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 h in the sene sense that the presiding Magistrate proceeded ex-parte because the order made on 17th of October 1996 reads:

<220;Ex-parte judgement entered in favour of the complainant in the sum of K1,174.00 plus cous 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 type is a Summons Upos Upon Complaint. This type is appropriatthon 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 specific demand requiring that person to appear at a time aime and place appointed in the summons. The second type is a default summons: see SS. 155, 156 &amp.&#16. The latter type is issuerein respect of a debt or a liquidated demand. Is sense a liqui demand mund must contain concise particulars of the complainant’s clas claim with dates, items and prices of value me end or annexed to thto the Summons. Proceeding in relation to default summons is governeverned by Division 3 of Part VIII of the ict Courts Act.

The learned Magistrate proceeded ex-parte pursuant to S. 143 of the Act. This section pro thate a defendant doet does not appear at the place and time specified in the summons or at thet the place and time to which the hearing djourned and the Court is satisfied upon oath that service has been effected 3 clear days bays before the hearing or notice of adjournment has been given may pd ex-parte and determetermine the complaint. I note from S. 143that thet 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 t#8220#8221#8221; in the same Subsection implies the use of e of discretionary powers to determine the question of whether to proceed rte or to adjourn further upon being satisfied on sufficient grounds. In my view, I t, I think ahe lawyer for the Appellant made all necessary arrangement to attend on 17th October 1996, somehow he could not board his intended flight. Failing to trae immely cony contacted the Senior Magistrate at Wabag, the, then the Clerk of Court on the same date. This in my view the appe’s lawyer had shown sufficient and reasonable grounds for an adjournment. I wouI would uphold d one one and two of the a.

On close examination of the affidavit evidence presented before his worship it wout would seem that the respondent filed thrparate affidavits. the first oftype is found ound on d on pages 20-23 of the appeal book. I noat the first one is wris wrongly captioned ‘NOTICE OF AFFIDAVIT’. The format does nmply with with the requirement of both the District and Evi Acts. It was not made under oath nor was it sworn bern before a Commissioner for Oaths. That in my was defective aive ans could not have been accepaccepted into evidence. The Second affidavit ae 25ge 25 of the Appeal Book relates to another complaint cced by the respondent against the Enga Provincial Governmenrnment. Uerusing its contents I do I do not think it is related to toceedings the subject of thof this appeal. The third a affidavit appoars on page 26 of the appeal documents and is the summary e respondent’s claim laim on which the grand total was put at K5,051.12. I would not work out he rehe respondent arrived is figure since the Complaimplaint and Summons Upon Complaint bare the amount of K1,174.00. Basicallt was claimed in t in the Cint was awarded without proper assessment if his worship foip found there was a cause of action.

The hand written transcript ot transpired on October 17, 1996 is very brief and the firs first page of the worksheet, see page 40 of appeal book, does not appear clearly. It would appear the court ourt 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 , aim, when his worship decided to enter an ex-parte order, he had the discretion to assess the damages. Applying S. 22 (bthe Dct Cict Courts Act which says that the District Court ought to give the same effect toct to every ground of defence or countercle they equitable or legal as ought to be granted in a similar case by the National court.&#rt. also fortified in this vies view by O. 12 r 28 of the National Court Rules. I quote rule 28 of .

“28. & Unlited dam/p>am/p>

Wh

Where the plaintiff’s claim for relief againstainst a defendant in default is for unliquidated damages only, the plaintiy entdgemeainst tnst that defendant for damages to be assesassessed ased 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. y event if that was the cahe case, the magistrate had the discretion to give direction to the respondent to file better andher pulars.

The fourth ground of this appeal waal was argued in detail. It is allegalleged byAppelAppellant that the respondent’s claim discloses no reasonable cause of action. This rs to me to be the mahe main reason. The law only reces actions commenced for a breach of contract or tort whethwhether equitable or legal. The respondent clain the Dthe District Cfor m incurred while mile making enquiries to recover an amount in the MCO amounting to K274.00.4.00. No act was entered into bnto bn the appellant and respondent on any likely damages that what would arise from a delayed flight. Onsal of the transcript e pt e learned magistrate, his worship noted that the flight wast was re-scheduled to the next day. roublld have arie aris60; h60; had the respondent tried to secure confirmed bookings fngs for the next day. No receipts were produceevas evidence of expene by espondent. He travelled from Laiagam back aack and fond forth to Wapenamanda and Hagen. The respondhose to attend tend to matter in Mt Hagen other than in Wapenamanda. He wase was informed by the Area Manager in Wabag that their telephone was out of ordd was informed to attend to the matter in Hagen. In t In that defectffidaviidavit I have alluded to earlier, the respondent speut the basis of that that claim.&#16have nave noted the respondent’s expenditure were extravagance. The respondent ed the folgowing commencingncing at paragraph 3.1:

3.1 ; Thathe 9th dayh day of Feof February 1995 I had spent K60or car and/or travelling expenses, and K28.00 on food. Total of K88.00.

3.3 That on 17 Febr1995 spen.00 on PMVfood. Total of K48.00.<.p>

3.4p>3.4&#160 &##160; That on 20 Fe20 February I995 I had spent K53.00 on PM food0; Tof K53.00.

3.5; That on 2 on 22on 22 Feb2 Feb2 February 1995 I had spent K18.00 on PMV PMV and food. Total of K18.0>

3.0; ҈& That on 14 March 1995 I had spent K114.00 on both vehicle hire and food.&#1d. T60; Total otal of K114.00.

3.7 ҈ That March 1995 I 95 I had spent K46.00 on PMV and fond food. Total of K.

3.8&#168 &#That h Ircadt hadt K97.0097.00 on PMV and food. Total otal of K97.00.

.

3.9 &#160 &#Tha; on 2 March 199h 1995 I had spent 00 oncle hmeals and accommodation. Total of K190 K190.00.<.00.

3.10 That March 1995 I had sped spent K105.00 on vehiire aals.& Total otal of K1of K105.0005.00.

3.11 ; Tha3 April 199l 1995 I ha I had spent a total of K96.00.

3.12 ـ Th 4 Ap995 I h5 I had spad spent aent a total of K109.00.

3.13 Tha5 Apr9l 19ha I had spen spent a total of K98.00.

3.10; That April I ha I had spen spent a total of K115.00

3.15 &1600; Th 27 Apr7 April 199l 1995 I had spetotal85.00

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

.

3.18 & That on 121995 I ha I had spent K110.00 on vehicle hire and meals. T60; Total of K110.00.

4. & L60; tissK10. /p5.&#160&#160 ټ In adIn addition toon to the above is the 8% interesterest of K127.12.

6. &##160;;&#16st of expe para, trat and meals - K500.00.

7. &##160;; Ti0; Ti0; Tim; Time onme on econ economical days as per calculation at K15a day days = K2,700.00.

8. &< d; And that any other eher expenses incurred can be ordered to be covered by the Defendants.

9. & O60;r oheers dhat the Coue Court seems fit.

I cite two examples of what I consider to be excessive spending by the respondent. This is partrly where he c he claimed for either hire or use of vehicles during the period he alleged to have attended to his queries aboutMCO.&#160 He says in paragraph hat hhat 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. Thond example is fon paragparagraph 3.2 where the rthe respondent said he travelled from Laiagam to Mount Hagen on 10th of February the same year, he spent K for se of a vehicle and K35.00 alone on food. H60; Had head he on ttwo otwo occasions eaten in hotels that should be evidenced by producing receipts. This did noten. In a In any event, I find that there was no basis either in law or in equity for espondent to have claimed smed so much from the appellant. I also uphold d four.

Ground five of the appeal relates to thpondent’s status to c to claim saying he had no standing in the proceedings. I note from the hritten tren transcript of tgistrate who presided on 6ton 6th of June 1996 that although she found that the amount of K274.00 was for two tickets for C. Lau and u, the Air Niugini management allowed the claim to be made made under his name because the MCO was paid to the respondent. Therno evidence as to how how old were the two children. Be that amay, a person undn under 21 years of age may sue in a Courtll respects as though if he or she wf full age or b or by his or her next friend or & or “guardian ad litem”. ote S. 39 e District Cict Cict Courts Act:

“39. t may

.

(1

(1)&#160 ҈ ndn uther the age oage of 21 years may sue in a Court in all respects as if he were of full age.

(2) &#soor ove age of 16 years ears may be sued in a Court in all respecespects asts as if h if he were of full age.

(3) &#1otwithsng Suions nd (2er (2ere it is necessary or desiraesirable ible in then the inte interests of justice to do so, a Court before which a person under the ag21 yeues oued mpoint or require the appointmointment oent of a nf a next fext 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 allto by the magistratetrate 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 thinkthink 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 3, , 3, 4, 6, and 7 of this appeal, I am more than compelled in agreeing that there was a miscarriage of justice and I musreforsh the orders of s of the said District Court made on 17th of October 1996 and order costs osts in favour of the Appellant.

Lawyer for the Appellant: P Dowa Lawyers

Respondent in person