N3715

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 848 OF 2005

BETWEEN:

WAMENA TRADING LIMITED
Plaintiff

AND:

CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn J.
2009: 5th & 11th August

Application to Set Aside Order Dismissing Proceeding for Want of Prosecution – Order 12 Rule 8(4) & (5) National Court Rules - s.155(4) Constitution 

Facts:

Wamena Trading Ltd (the Plaintiff) applies to set aside an order dismissing a proceeding for want of prosecution. The application is made pursuant to Order 12 Rule 8 (4) and (5) National Court Rules and s.155 (4) Constitution. 

Held: 

1. Clause 1 of the Dismissal Order is clear. It dismisses the entire proceedings. It is therefore a class of order covered by one of the exceptions in Order 12 Rule 8(4) National Court Rules that the court may not set aside.

2. This court is not able to set aside the Dismissal Order under Order 12 Rule 8(4) National Court Rules.

3. Section 155(4) Constitution cannot be relied upon by Wamena Trading to set aside the Dismissal Order.

4. The orders sought by Wamena Trading are refused.

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81 
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317 

Counsel:

Mr. N. B. Kubak, for the Plaintiff 
Mr. K. R. Kawat, for the Defendant

11th August, 2009

1. HARTSHORN J. Wamena Trading Ltd applies for amongst others, the Order of this court dated 15th April 2009 (Dismissal Order) or part of it to be set aside.

2. The Dismissal Order was:

"1. The entire proceedings is dismissed.

2. The Plaintiff to vacate the Defendant's premises.

3. Costs of this proceedings to be paid by the Plaintiff." 

3. Wamena Trading applies under Order 12 Rule 8(4) and (5) National Court Rules and s.155(4) Constitution.

4. As the Dismissal Order was made after the Court had heard from counsel for both parties, it was made inter partes. The fact that counsel for Wamena Trading only informed the court that the application of the Civil Aviation Authority (CAA) would neither be agreed to or opposed for want of proper instructions, does not render the hearing ex parte as was inferred by counsel for Wamena Trading. In any event Wamena Trading is not seeking to set aside the Dismissal Order on the basis that it was made ex parte.

Order 12 Rule 8(4)

5. Order 12 Rule 8(4) is relevantly as follows:

"… the Court may on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief."

6. Clause 1 of the Dismissal Order is clear. It dismisses the entire proceedings. It is therefore a class of order covered by one of the exceptions in Order 12 Rule 8(4) that the court may not set aside.

7. Consequently this court is not able to set aside the Dismissal Order under Order 12 Rule 8(4) National Court Rules.

Section 155(4) Constitution

8. Order 12 Rule 8(5) National Court Rules is as follows:

"This Rule does not affect any other power of the Court to set aside or vary a judgment or order."

9. Counsel for Wamena Trading submits that this court has such a power by virtue of s.155(4) Constitution which relevantly is: 

"… the National Court (has) an inherent power to make… such other orders as are necessary to do justice in the circumstances of a particular case."

10. As to s.155(4) Constitution, Kearney DCJ in the celebrated Supreme Court case of Avia Aihi v. The State [1981] PNGLR 81 stated:

I agree with the views of Prentice CJ and Andrew J in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea [1979] PNGLR 329 that the Constitution, s.155(4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected.

11. What is the primary right in this instance? The primary right to have an order set aside is given by Order 12 Rule 8 National Court Rules but under Order 12 Rule 8(4), that primary right does not extend to amongst others, an order for dismissal of proceedings. So there is no primary right of Wamena Trading to have the Dismissal Order set aside that s.155(4) can be invoked to protect.

12. As Injia DCJ (as he then was) said in Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317 when considering whether s.155(4) could be invoked to allow interim relief to be granted before a grant of leave for judicial review:

"… s.155 cannot be applied to do anything contrary or inconsistent with the provisions of O16 r.3(8) (National Court Rules).

13. For the above reasons, I am of the view that s.155(4) Constitution cannot be relied upon by Wamena Trading to set aside the Dismissal Order.

14. In the alternative, Wamena Trading seeks that clause 2 of the Dismissal Order; "The Plaintiff to vacate the Defendants premises", be set aside. Clause 2 is part of the Dismissal Order. I have already refused the application to set aside the Dismissal Order and this applies to clause 2.

15. In addition, clause 2, to my mind, "determines any claim for relief or determines any question… arising on any claim for relief", as it determines the question whether Wamena Trading is entitled to occupy CAA’s premises. This is a question arising on the claims for relief in the proceeding. This is another class of order covered by one of the exceptions in Order 12 Rule 8(4) National Court Rules that the court may not set aside.
16. Accordingly the orders sought by Wamena Trading are refused.

Orders

a) the orders sought in the plaintiffs notice of motion dated and filed 19th June 2009 are refused.

b) the costs of and incidental to the notice of motion are to be paid by the  plaintiff to the defendant.

________________________________________

Nobert Kubak & Co Lawyers: Lawyers for the Plaintiff
Civil Aviation Authority of Papua New Guinea: Lawyers for the Defendant