Malt v Queen [2009] PGNC 15; N3577 (20 January 2009)

N3577

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 603 OF 2005

BETWEEN:

PETER MALT
Plaintiff

AND:

DEAN QUEEN
First Defendant

AND:

CHRISTIAN UNION MISSION INC
Second Defendant

Mount Hagen: Makail, AJ
2008: 19 September &
2009: 20 January

PRACTICE & PROCEDURE - Application to set aside ex parte order - Dismissal of proceeding for want of prosecution - Different forms of ex parte orders discussed - Whether National Court has jurisdiction - Inherent jurisdiction inapplicable - Lack of jurisdiction - Application misconceived and abuse of process - Application dismissed - Constitution - Section 155(4) - National Court Rules - Order 12, rule 8.

WORDS & PHRASES - "Dismissal" and "strike out" of proceeding for want of prosecution - Meaning and effect of - "Interim" and "final" orders - Meaning and effect of.

Cases cited:

Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408
TST Holdings Pty Ltd & another -v- Tom Pelis & Another (1997) SC534
PNG National Stevedores Pty Ltd & Anor -v- Honourable Andrew Baing & The State (1998) N1705
Christopher M Smith -v- Ruma Constructions Ltd (2002) SC695
Bruce Tsang -v- Credit Corporation [1993] PNGLR 112
General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331
Makop On -v- Billy Parako (2004) N2593
Green & Co Pty Limited -v- Green [1976] PNGLR 73
Barker -v- Government of Papua New Guinea [1976] PNGLR 340
George Page Pty Limited -v- Malipu Bus Balakau [1982] PNGLR 140
Gobe Hongu Ltd -v- NEC & The State (1999) N1920
Mark Ekepa & Ors -v- William Gaupe & Ors (2004) N2694
East Arowe Timbers Resources Limited -v- Cakara Alam (PNG) Limited & PNG Forest Authority (2008) N3270

Counsel:

Mr D Gonol, for the Plaintiff
Mr K Peri, for the Defendants

RULING

20 January 2009

1. MAKAIL AJ: The application before the Court is a Notice of Motion filed by the Plaintiff on 19 November 2007 seeking the following orders:

"1. Pursuant to Order 12, rule 8 of the National Court Rules, the ex parte order of this Honourable court made on the 13 July 2007 be set aside.

2. The proceedings be re-instated.

3. The matter be placed on the call over list for allocation of a trial date.

4. Any other or further orders this Honourable Court deems fit.

5. The time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith".

2. It came before the Motions Court on 19 September 2008. An issue arose during the hearing as to whether the National Court has jurisdiction to set aside an ex parte order which dismissed the entire proceeding for want of prosecution. After brief discussion with both counsel, I directed both counsel to file and serve their respective written submissions on this issue by or before 26 September 2008. I reserved my ruling to a date to be fixed. Unfortunately, apart from being away on court circuit duties during the subsequent months, both counsels did not put in their respective written submissions until I enquired in late December 2008. Counsel for the Plaintiff did eventually provide one on 8th January 2009. The other did not but I will not wait any further. This is my ruling.

BRIEF FACTS

3. The circumstances giving rise to the application is as follows; the Plaintiff claims to be the registered proprietor of a piece of land described as "Wumundi", Portion 2692C, Milinch of Hagen, Fourmill of Ramu in the Western Highlands Province (the "land"). It is located at the edge of Mt Hagen town, at Newtown.

4. Previously, the land was a customary land and belonged to the Plaintiff’s Mogei Andakel Kang tribe but the Plaintiff decided to put up a Motel complex and had it surveyed. He applied for a title under the Land Tenure Conversion Act and was granted one on 28 February 2001. On or around 23 December 2002, the Defendants moved onto the land and occupied it. The Plaintiff claims that he did not give approval to the Defendants to occupy the land. He also claims that someone forged his signature on a contract of sale which transferred the land to the Defendants. As a result, he issued proceedings at the Mt Hagen District Court to eject the Defendants from the land.

5. On 9th September 2004, the Mt Hagen District Court ordered the Defendants to vacate the land within 2 weeks but on 24 September 2004, the Defendants applied and obtained an order setting aside the eviction order. Subsequently, the District Court transferred the proceeding to the National Court for further determination in respect of the validity of the transfer of title from the Plaintiff to the Defendants. The transfer of the District Court proceeding to the National Court is the present proceeding.

6. On 8th September 2006, the Defendants filed a Notice of Motion seeking an order to dismiss the entire proceeding for want of prosecution. On 13th July 2007, the Plaintiff did not attend the hearing and the National Court upheld the application of the Defendants and dismissed the entire proceeding for want of prosecution. This is the ex parte order the Plaintiff seeks to set aside.

ISSUES

7. The main issue is whether or not the National Court has jurisdiction to set aside an ex parte order dismissing the entire proceeding for want of prosecution. If the National Court does have jurisdiction, what are the considerations or principals upon which the Court may take into account to set aside an ex parte order dismissing the entire proceeding for want of prosecution?

8. These issues have arisen because if the Plaintiff was to have appealed the decision of the National Court to the Supreme Court, he would have been outside the 40 days time limitation allowed under section 17 of the Supreme Court Act. In other words, the Plaintiff is time barred to appeal the decision of the National Court to dismiss the entire proceeding for want of prosecution in his absence.

9. The Plaintiff’s Notice of Motion cites Order 12, rule 8 of the National Court Rules as the basis of the application. Order 12, rule 8 states:

"8. Setting aside or varying judgment or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) The Court may, on terms, set aside or vary a judgment-

(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or

(b) where the judgment has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) when the judgment has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order -

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) 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 and 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.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgment or order". (Underlining is mine).

REASONS FOR RULING

10. I have read the written submissions of the Plaintiff filed by his counsel. I will refer to relevant aspects of the submissions as I give my reasons for the ruling.

11. I have also perused the ex parte order of 13th July 2007 (the "ex parte order") and term 1 of the ex parte order states, "The proceeding is dismissed for want of prosecution". I have crossed checked the terms of the ex parte order with the Court file endorsement of 13 July 2007 and they are consistent with the endorsement. So I accept that the National Court dismissed the entire proceeding for want of prosecution. It did not "strike" out the proceeding. I make this distinction at the outset because it will become evident later on that they have different consequences or effect when I explain them in more detail.

Jurisdiction of National Court

12. Counsel for the Plaintiff submits that the Plaintiff will suffer irreparable damage if the Court does not set aside the ex parte order. He submits that the Plaintiff’s interest in the land as its registered title holder has being prejudiced in that he has been driven away from the judgment seat of the Court by the dismissal of the entire proceeding for want of proceeding, hence did not have the opportunity to prove his right of ownership before the Court. Counsel cites three instances where court proceeding are brought to an end or concluded and says that in this case, the proceeding was brought to an end abruptly because it was dismissed for want of prosecution in the absence of the Plaintiff. And in such a case, counsel submits that this Court has jurisdiction to set aside the ex parte order by exercising its inherent jurisdiction under section 155(4) of the Constitution to set it aside.

13. I accept that there are three instances where proceedings before the National Court are brought to finality and they are the ones that counsel for the Plaintiff refers in his written submissions. They are:

1. Where the trial of the substantive proceeding is conducted. All parties come to Court and provide evidence and submissions. This is where evidence of both sides is tested in cross examination. The Court looks at the strength or otherwise of the evidence and of course submissions and dismisses the entire proceeding. If the party is aggrieved by the decision, the party must appeal to the higher Court, like the Supreme Court.

2. Where the application to dismiss the proceeding for want of prosecution is filed and the Notice of Motion and supporting Affidavits are filed and served on the Plaintiff. The Defendant informs the Plaintiff and both sides appear and present arguments for and against the application. Again, the Court looks at the strength or otherwise of the arguments of both sides and dismisses the entire proceeding for want of prosecution. Again, if the party is aggrieved by the decision, the party must appeal to the higher Court, like the Supreme Court.

3. Where the decision to dismiss the entire proceeding is made ex parte. This is where the Plaintiff is not aware of the application to dismiss the proceeding for want of prosecution either because the Defendant did not serve the Notice of Motion and supporting Affidavits on the Plaintiff or did not notify the Plaintiff of the hearing date of the application, hence the Plaintiff failure to attend.

14. It is the third instance that I am concerned with here. To answer the first issue of whether or not the National Court has jurisdiction to set aside an ex parte order of the National Court dismissing the entire proceeding for want of prosecution, I am of the view that it does not have the jurisdiction and I give three reasons for holding this view.

15. First, I note that although the Plaintiff’s Notice of Motion cites Order 12, rule 8 of the National Court Rules as the basis of the application, counsel for the Plaintiff also relies on section 155(4) of the Constitution to set aside the ex parte order. I will address the application of section 155(4) of the Constitution first and will return to the application of Order 12, rule 8 of the National Court Rules a bit later on.

16. The National Court has an inherent jurisdiction to make orders to do justice in circumstances where there are no other remedies available. This jurisdiction is given to the National Court by the Constitution under section 155. It is often said that it is the "last resort" remedy. This is because this provision gives concurrent jurisdiction to both the National and the Supreme Courts. However, these powers are in the nature of prerogative writs which are by nature supervisory powers over subordinate Courts, semi-judicial and administrative tribunals under the first limb. Therefore, the Supreme Court has no power to review a decision of another Supreme Court. In the same way the National Court cannot review a decision of another National Court except in circumstances where a judgment or order may be set aside pursuant to statute or common law. Under the second limb, they have powers to make orders which are remedial, adjectival as well as procedural in nature. See Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408, TST Holdings Pty Ltd & another -v- Tom Pelis & Another (1997) SC534 and PNG National Stevedores Pty Ltd & Anor -v- Honourable Andrew Baing & The State (1998) N1705.

17. It is the second limb of this provision that the Plaintiff asks the Court to invoke but I am not satisfied that I should exercise this power in this case. This is not a case where the Plaintiff has exhausted all the available remedies and great injustice will occur if an order is not granted by the Court to set aside the ex parte order dismissing the entire proceeding for want of prosecution. I say this because the Plaintiff has not exhausted all alternative remedies available to him in order to ask the Court to invoke its inherent jurisdiction to set aside the ex parte order and of course the manner in which the Plaintiff seeks to invoke the jurisdiction of this Court is also incorrect. There is nothing for the Court to remedy here except the Plaintiff’s complaint that he has been greatly prejudiced by the decision of the National Court to dismiss his proceeding for want of prosecution.

18. In my view the prejudice to his interest of the land is not a ground for the National Court to set aside the ex parte order of the same Court under the second limb of section 155(4) of the Constitution. For these reasons, I am not satisfied that the Plaintiff has made out a case for the exercise of the Court’s inherent power in his favour and I dismiss this submission.

19. Further, as noted above, the National Court has no jurisdiction to review a decision of another National Court. I consider that what the Plaintiff is in fact asking this Court to do is to review the decision of the National Court to dismiss the entire proceeding for want of prosecution. And that this Court cannot do, for to do so would be seen as to review the decision of the National Court which initially dismissed the entire proceeding for want of prosecution. That is the kind of practice the Supreme Court attempted to discourage or outlaw in the case of Christopher M Smith -v- Ruma Constructions Ltd (2002) SC695. There, the Respondent attempted and indeed succeeded to persuade the learned trial judge in the National Court to set aside an ex parte order for summary judgment but on appeal, the Supreme Court quashed the decision of the National Court on the basis that the National Court did not have the jurisdiction to review decision of an earlier National Court to grant the ex parte order for summary judgment. I will return to discuss this case in more detail later on.

20. But for now, the point to note here is that, the National Court has no jurisdiction to review its own decisions. That power to review belongs to the Supreme Court and a separate application must be filed in the Supreme Court under section 155(2)(b) of the Constitution and Order 5, rules 1 & 2 and Form 5 of the Supreme Court Rules if he is out of time to appeal. Not by Notice of Motion like in this case. As I said, I can see that, that is exactly what the Plaintiff is asking me to do; to review the decision of the National Court under the guise of an application to set aside an ex parte order to dismiss the proceeding for want of prosecution. That I cannot allow. I reject the Plaintiff’s submission under section 155(4) of the Constitution.

21. This then leads me to the second reason to say that the National Court has no jurisdiction to set aside the ex parte order. And this reason is this, in the context of an ex parte order dismissing an entire proceeding for want of prosecution, where a Court dismisses a proceeding for want of prosecution, the entire proceeding is at an end. It cannot be revived. In other words, it is dead. This is regardless of whether or not the decision or order to dismiss is made inter parties or ex parte. In taking this view, I do acknowledge that whilst it is true that the merits of the cause of action in the proceeding is yet to be decided, it must not be missed that the proceeding itself is dismissed. Where a proceeding is dismissed, it means there is no proceeding upon which the cause of action maybe tried.

22. Where the proceeding is dismissed for want of prosecution, it is commonly dismissed for a sole reason and that reason is that, the Plaintiff has failed to diligently prosecute it. In other words, what is relevant and important to the Court when it decides an application to dismiss a proceeding for want of prosecution at the material time is, whether or not a Plaintiff has diligently prosecuted the proceeding. The Court is not concern with the merits of the cause of action in the proceeding but rather the reasons for the lack of its prosecution.

23. For it is settled law that there must be finality in litigation in the interest of the public. In Christopher M Smith’s case which I referred above, the Supreme Court made it abundantly clear that, once a Court has decided on an issue, it can not rehear the matter unless a higher Court on appeal so orders. In that case, the Appellant applied for summary judgment against the Respondent and the National Court granted summary judgment with damages to be assessed. The National Court granted an ex parte summary judgment after the Respondent nor its lawyers turned up at the hearing despite the Respondent’s lawyers being served with the application. The Respondent filed an appeal to the Supreme Court but subsequently discontinued the appeal. It then filed an application to set aside the ex parte summary judgment. The application went before a different judge of the National Court who heard it and upheld it.

24. Essentially, the National Court held that there were serious questions of fact and law in dispute and in such a case, the earlier National Court should not have granted summary judgment. Being aggrieved by the decision of the National Court, the Appellant appealed to the Supreme Court. The Appellant argued inter alia that the National Court fell into error when it set aside the summary judgment because whilst the principles governing an application for default judgment and application for summary judgment are different, the principles applicable for setting aside a default judgment or summary judgment are the same and if applied correctly by the National Court, the National Court would have found that there was no basis to set aside the ex parte summary judgment.

25. The Supreme Court, per Kapi DCJ, (as he then was) in reviewing the decision of the National Court concluded that:

"The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge reviewed the decision of Woods J. The trial judge had no jurisdiction to do this under an application to set aside judgment under O12 r 8 of the Rules. This power belongs to the Supreme Court under the Supreme Court Act or s 155 (2) (b) of the Constitution".

26. And to emphasis the point that the Respondent should have appealed to the Supreme Court, His Honour referred to the Supreme Court judgment of Bruce Tsang -v- Credit Corporation [1993] PNGLR 112, where the National Court’s decision to enter summary judgment was appealed to the Supreme Court under the Supreme Court Act. In summary, in the Christopher M Smith’s case (supra), the Supreme Court held that the National Court did not have the power to review and set aside the summary judgment granted by another National Court judge. That power belonged to the Supreme Court.

27. Returning to the case at hand, in my view, although the Christopher W Smith’s case (supra) and Bruce Tsang’s case (supra) decided applications to set aside summary judgments, the rational is the same, and that is there ought to be finality in litigation in the public interest subject only to appeal. There are a lot of authorities for this proposition such as the Supreme Court judgment in General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331, where it said at p 334:

"It is of some strength in the argument that a court should be wary of extinguishing a plaintiff's right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue".

28. Thus, it is clear from these case authorities that in any proceedings before the Court, there must be finality. In this case, as the National Court has dismissed the proceeding for want of prosecution, it is at an end. There is nothing more to be determined.

29. This is where the distinction between dismissals of proceeding for want of prosecution as oppose to strike out of proceeding for want of prosecution becomes relevant. In a case where a proceeding is struck out, the proceeding is also at an end but a Plaintiff is entitled as of right to re issue the proceeding if he is still within the 6 years time limitation under section 16 of the Frauds & Limitations Act 1988 or other time limitations as are applicable (see sections 16(3) and 19 of the Frauds & Limitations Act and section 31 of the Wrongs (Miscellaneous Provisions) Act), or file an application by way of a Notice of Motion to set aside the ex parte order striking out the entire proceeding for want of prosecution if he outside the time limitation to re issue new proceeding.

30. This distinction is important because a strike out of proceeding for want of prosecution is only a temporary measure. The word "strike" in plain English in the Oxford Advanced Learner’s Dictionary 7th ed, Oxford University Press at p 1465 means "to fail or be unsuccessful". To my mind, it connotes that there must be another attempt made by the person in order to avoid failure or being unsuccessful. So in the legal context, it would mean another attempt made by a Plaintiff to prosecute the cause of action to avoid the proceeding from being struck out for want of prosecution again.

31. An example of a case where the National Court heard an application to set aside an ex parte order that struck out the proceeding for want of prosecution is Makop On -v- Billy Parako (2004) N2593. That case was an appeal wherein His Honour Manuhu AJ, (as he then was), heard an application to set aside an ex parte order which struck out the appeal for want of prosecution. The appeal was filed by the Appellant against the decision of the Mt Hagen District Court ordering the Appellant to pay K3,000.00 to the Respondent. The Appellant did not diligently prosecute the appeal by failing to prepare and file an appeal book and on an application by the Respondent the National Court struck out the appeal for want of prosecution.

32. In the application to set aside that order, the Appellant argued that the ex parte order was irregularly entered because the Respondent did not serve the application on him, hence he did not know that such an application was before the Court. Alternatively, if it was regularly entered, he argued that as a lay person, he did not know that he was required to compile and file an appeal book for the substantive hearing of the appeal. His Honour held that the ex parte order was irregularly entered because there was no Affidavit of Service to establish if the Respondent had served the Notice of Motion and supporting Affidavit for the application to strike out on the Appellant. As to whether it was regularly entered, His Honour rejected the explanation given by the Appellant to allow the ex parte order to go by in his absence. His Honour was of the view that the Appellant seemed to be well aquatinted with the Court system and also had easy access to the National Court as well as lawyers and should have sought some legal assistance then.

33. In the end, even though His Honour found that the ex parte order was irregularly entered, hence the ex parte order ought to be set aside, he struck out the entire appeal for the reason that it was filed out of time. But His Honour also made an interesting observation which was raised by counsel for the Appellant during arguments before him and that is whether the ex parte order was final and the Appellant should have appealed the decision to the Supreme Court. I note, His Honour did not consider fully that point in his judgment except to say that the issue of a final order was irrelevant in that case because the application to set aside an ex parte order striking out the appeal for want of prosecution was permissible under Order 12, rules 8 & 35 of the National Court Rules.

34. In the present case, I will consider the issue of final orders. It is relevant because in this case, it is a case where the National Court dismissed the proceeding for want of prosecution in the absence of the Plaintiff. In my view, the ex parte order is final. As such, the dismissal concluded the proceeding. That is the effect of the ex parte order. It cannot be set aside on the basis that it was made ex parte or in the absence of the Plaintiff. It cannot be treated just like any other forms of ex parte orders which I will come to in a moment. This is where Order 12, rule 8 of the National Court Rules become relevant. I am of the view that sub rule 3(a) of rule 8 of that Order gives the National Court jurisdiction to set aside an order made inter alia in the absence of another party, whether or not the defaulting party has notice of the application.

35. But that power does not include the power to set aside ex parte orders dismissing the entire proceeding for want of prosecution. I hold this view because it is also clear to me that Order 12, rule 8(4) excludes orders dismissing proceedings because of the words, "excepting an order for dismissal of proceeding". And in my view, this includes ex parte orders dismissing proceedings for want of prosecution. Further, I hold this view notwithstanding that this sub rule gives the Court additional powers to set aside orders which in my view is wide enough to cover any other circumstances or grounds not covered by sub rule 3 except dismissal of proceedings.

36. I reiterate that where a proceeding before a Court is dismissed for want of prosecution, it is irrelevant whether the application is heard inter parties or ex parte. What is relevant and important is that a Plaintiff has failed to diligently prosecute it. If a Plaintiff fails to appear and oppose an application to dismiss for want of prosecution and the application is heard in his absence and the Court dismisses the entire proceeding, he has a right to appeal to a higher Court, like the Supreme Court if he is aggrieved by the decision.

37. Proceeding on this premise in the present case, this is where I reject the submission put forward by counsel for the Plaintiff that there would be no grounds for the Plaintiff to ground his appeal if he was to appeal the decision of the National Court to the Supreme Court because the application to dismiss the proceeding for want of prosecution was made ex parte. As a result, there were no evidence and submissions presented by the Plaintiff before the National Court to then enable the Plaintiff to formulate his grounds of appeal.

38. With respect, I dismiss this submission. Surely, there would be grounds upon which the Plaintiff may appeal to the Supreme Court. The grounds of appeal will be confined to why and how the National Court dismissed the entire proceeding for want of prosecution, even though the application to dismiss was heard ex parte. To argue that just because the Plaintiff was not heard on the application to dismiss does not mean that the Plaintiff is entitled to apply by Notice of Motion to set the ex parte order aside. As to the likely grounds of appeal, may I for a moment observe that one example of a likely ground of appeal is the Defendants’ failure to notify the Plaintiff of the hearing date of the application. Such a ground would be apparent from the evidence presented before the judge who heard and determined the application to dismiss. In other words, it must be the Plaintiff’s case that there was neither nor service of the notice of the hearing date on him to enable him to appear and oppose the application to dismiss.

On a quick glance at the materials placed before the National Court, one thing that must not go amiss here is that the various court documents such as Notice to Plead Further Facts, including the Notice of Motion and supporting Affidavit for the application to dismiss the proceeding were served by the Defendants’ lawyers at the Plaintiff’s former lawyers’ office. See Affidavit in Support of Koeya J Peri sworn on 7th September 2006 and filed on 8th September 2006. It should also go without saying that the Plaintiff admits that the former lawyer left his practice without informing him. As a result, he did not know that there was a pending application by the Defendant before the Court to dismiss the entire proceeding for want of prosecution. That led to neither his former lawyer nor him appearing on the hearing date and the application was heard and decided in his absence.

39. Those matters are for the Plaintiff and his new lawyers to seriously consider but for now, the point is that surely there are grounds of appeal and they would as I said, relate to how and why the Court granted the ex parte order to dismiss the entire proceeding for want of prosecution. May I also observe in passing that if there is something wrong here, there is evidence to suggest that the Plaintiff’s former lawyer may have been guilty of professional negligence by not properly and adequately representing the Plaintiff in this proceeding. If the Plaintiff is of the view that his former lawyer failed to adequately and properly represent him in this proceeding, again, that is a matter for the Plaintiff to pursue.

40. This Court is not being asked to determine that issue today. Instead today, I am able to reach a decision that since the National Court has dismissed the proceeding for want of prosecution in the absence of the Plaintiff, this Court has no jurisdiction to set that decision aside. That is a matter for the Supreme Court to decide by virtue of its power under the Supreme Court Act. For this reason too, I find that this Court lacks the jurisdiction to entertain the Plaintiff’s application to set aside the ex parte order under Order 12, rule 8 of the National Court Rules.

41. The last reason for me to hold that the National Court has no jurisdiction in this kind of application follows on from the second reason and that is, the order dismissing the entire proceeding is final and not an interim one. Here, I can see that the Plaintiff did not draw a distinction between ex parte orders made on an interim basis and ex parte orders made on a permanent basis or as final orders. Further, the Plaintiff has proceeded on the basis that an "ex parte" order can be set aside as of right. In my view, an "ex parte" order dismissing the entire proceeding for want of prosecution is a permanent or final order.

42. One significant feature of this type of ex parte orders is that they are made on an interim basis. The word "interim" in plain English is defined by the Oxford Advanced Learner’s Dictionary 7th ed, Oxford University Press at p 779 as "intended to last for only a short time until somebody or something more permanent is found". So in the context of a proceeding before the Court, it is clear to me that an interim order is made "for only a short time until somebody or something more permanent is found", like a permanent or final order is made. In fact, the legal definition of interim order as defined by Osborn’s Concise Law Dictionary 9th ed (1979), Sweet & Maxwell at p 212 is, "Some order made in the course of proceedings, not being a final order.......".

43. Based on this definition, the question is; what is there for the Court to decide in view of the fact that the entire proceeding has been dismissed? In my view, there is nothing for the Court to decide after the Court has dismissed the entire proceeding for want of proceeding. That is why I am of the view that before the National Court can entertain an application to set aside any form of ex parte orders, it must satisfy itself that the ex parte order is an interim one.

44. Let me illustrate further. One example of ex parte orders made on an interim basis is default judgments. Where a default judgment is irregularly or regularly entered by the National Court, it maybe set aside by the same Court under Order 12, rules 8 & 35 of the National Court Rules. There are many case authorities on applications to set aside default judgments such as Green & Co Pty Limited -v- Green [1976] PNGLR 73, Barker -v- Government of Papua New Guinea [1976] PNGLR 340 and George Page Pty Limited -v- Malipu Bus Balakau [1982] PNGLR 140 to name a few. Default judgments are interim orders, that is why if they are irregularly obtained, they maybe set aside as of right as in the case of George Page Pty Ltd (supra), or where they are entered regularly, at the discretion of the Court like in the cases of Green (supra) and Barker’s case (supra). And as I said above, the Court’s power to set aside default judgments is derived from Order 12, rules 8 and 35 of the National Court Rules.

45. Another example of ex parte orders is interim injunctions. Where the National Court grants ex parte interim injunctions, it may set aside them if it is satisfied that first, there are no serious or triable issues raised in the proceeding, the balance of convenience do not favour the continuation of the interim injunction and damages would be an adequate alternative remedy. There are abundance of case authorities on setting aside of ex parte interim injunctions in this jurisdiction like Gobe Hongu Ltd -v- NEC & The State (1999) N1920, Mark Ekepa & Ors -v- William Gaupe & Ors (2004) N2694 and East Arowe Timbers Resources Limited -v- Cakara Alam (PNG) Limited & PNG Forest Authority (2008) N3270 to name a few.

46. By contrast, an example of ex parte orders made on a permanent basis or are final is orders to dispense with condition precedents for appeals from the District Court to the National Court under section 231 of the District Courts Act. Another example is ex parte orders granting leave to apply for judicial review under Order 16, rule 3 of the National Court Rules. Another example of an order of this nature that I can think of is an order granting leave to give notice of claim to the State out of time under section 5 of the Claims By & Against the State Act 1996.

47. These types of ex parte orders are deemed final although they are granted in the absence of the other party. They are granted in this fashion because they are intended to progress the proceeding before the National Court to the next level. If a party is aggrieved by the decision of the National Court to grant any of these orders, it has a right to appeal the decision to a higher Court. It should also be mentioned here that except for orders granted under section 5 of the Claims By & Against the State Act 1996, the first two types of orders are granted ex parte as of right under their respective laws governing their grant like the District Courts Act and the National Court Rules. But in all three instances, they cannot be set aside by an application to the National Court except a successful appeal in the Supreme Court.

48. I am led to conclude that an ex parte order dismissing the entire proceeding for want of prosecution finally disposes of the entire proceeding. That being the effect of such an order, the same Court has no jurisdiction to set it aside unless the Supreme Court so orders on appeal.

Considerations or principles for application to set aside ex parte orders

49. As I have found that the National Court has no jurisdiction to set aside an ex parte order dismissing an entire proceeding for want of prosecution, it is not necessary to consider the relevant considerations or principles upon which the Court may take into account in deciding an application to set aside an ex parte order dismissing the entire prosecution for want of prosecution.

CONCLUSION

50. For the foregoing reasons, I find that the Plaintiff’s application seeking to set aside the ex parte order of 13 July 2007 in dismissing his entire proceeding for want of prosecution is not only misconceived but also an abuse of process. This Court has no jurisdiction to set it aside. Accordingly, the application must fail. But in reaching this conclusion, this does not mean that the Plaintiff is left without a remedy. He does and it is entirely up to his legal advisors to properly advise him on the next course of action.

ORDERS

In the end, I order that the Plaintiff’s Notice of Motion filed on 19 November 2007 be dismissed forthwith and the Plaintiff shall pay the Defendants’ costs of the application to be taxed if not agreed.

____________________________________________

Paulus Dowa Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants