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National Court of Papua New Guinea |
N6602
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. No. 1291 of 2007
BETWEEN
JAMES AIWASI
Plaintiff
AND:
MONTY DERARI – ORO PROVINCIAL ADMINISTRATOR
First Defendant
AND:
ORO PROVINCIAL GOVERNMENT
Second Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Kandakasi, J.
2015: 17th June
2017: 2nd February
EVIDENCE – Application for set aside of ex parte orders – Affidavit evidence required meeting each of the requirements for set aside of ex parte orders – Only lawyer filing affidavit in support – Lawyers affidavit cannot be evidence of parties explanations and evidence going into merits of the case – Effect of – Application not made out.
JUDGMENT & ORDERS - Ex parte orders dismissing proceedings for want of prosecution - Application by notice of motion seeking set aside of – Dismissed or concluded proceedings provide no legal or factual and logical foundation for – Appropriate remedy - Appeal or reissuance of proceedings if dismissal not after hearing on the merits – Courts Jurisdiction – Court has power to set aside ex parte orders in appropriate cases except only in cases where the issue is determined or the proceedings are dismissed – Principles governing set aside of ex parte orders – No satisfactory explanation for allowing ex parte orders – No Affidavit filed by plaintiff explaining want of prosecution and going into merits of the case – Court orders question claim not satisfactorily addressed – Only lawyer filing affidavit in support – Insufficient – Application dismissed - Order 12 r. 8 (4) National Court Rules.
PRACTICE & PROCEDURE – Applications seeking to set aside ex parte dismissal orders by amended notice of motion – No provision in the National Court Rules allowing for amended notice of motions – Effect of – Application not properly before the Court.
PRACTICE & PROCEDURE – Application by notice of motion seeking to set aside ex parte dismissal orders – Whether National Court has jurisdiction to entertain application – Motions can only be filed on the foundation of existing or current proceedings – Dismissed or concluded proceedings provide no legal or factual and logical foundation for – Appropriate remedy – Appeal or reissuance of proceedings if dismissal on after hearing on the merits – Power of Court to set aside ex parte orders except only in cases where the issue is determined or the proceedings are dismissed – Order 12 r. 8 (4) National Court Rules.
Cases Cited:
Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408.
Breni Kora v. Sergeant Manuma Titima (2012) N4730.
Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112.
Christopher M Smith v. Ruma Constructions Ltd (2002) SC695
Curtain Bros (QLD) Pty Ltd and Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285.
Daniel Bali Tulapi v. Alphonse Niggins (2011) SC1111.
Daniel Ronald Walus v. The State (2007) SC882.
Dr Yvonne Sapuri v. Peter Kolly (2014) SC1310.
Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176.
Feflo Plantation (PNG) Ltd v. Lolo Development Corporation Ltd (2013) N5065
Harry Tovon v .Carl Malpo & Ors (2016) N6240.
Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1999) SC607.
Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143.
Kundu Consultants Limited v The Independent State of Papua New Guinea (2001) N2128.
Makop On v. Billy Parako (2004) N2593.
Motor Vehicles Insurance (PNG) Trust Limited v Yama Security Services Limited (2009) SC1004.
Motor Vehicles Insurance (PNG) Trust v. Viel Kampu (1998) SC587.
Muriso Pokia v. Mendwan Yallon (2014) SC1336.
Peter Flynn Aihi v. The State (2000) N2006.
Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577.
POSFB v. Paul Paraka trading as Paul Paraka Lawyers (2004) N2791.
PNG National Stevedores Pty Ltd & Anor v. Honourable Andrew Baing & The State (1998) N1705.
PNG National Stevedores Pty Ltd & Anor v. The Honourable Andrew Baing, PNG Harbours Board & Anors; PNG Harbours Board v. PNG National Stevedores Pty Ltd (1998) N1705.
Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145.
Richard Dennis Wallbank and Jeanette Manifie v. The Independent State of Papua New Guinea [1994] PNGLR 78.
Robert Kittika v. Pastor Peter Kapia & Ors (2010) N4051.
Salamo Elema v. Pacific MMI Insurance Ltd (2007) SC1321.
Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906.
The State v. The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344.
Thomas Rangip & Fountain Finance Ltd v. Peter Loko & National Capital District (2009) N3714.
Thomas Babia v. Mr. Pepi Kimas (2009) N3940.
TST Holdings Pty Ltd & Anor v. Tom Pelis & Anor (1997) SC534.
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844.
Counsel:
W. Mapiso, for the Plaintiff
S. Vate, for the Third Defendants
No Appearance, for the First and Second Defendants
2nd February, 2017
1. KANDAKASI J: By notice of motion filed on 27th March 2015 and later amended on 29th May 2015, the applicant, James Aiwasi who is plaintiff in this proceeding is seeking to set aside an order dismissing the proceeding
for want of prosecution on 4th March 2015.
2. This application presents the following issues for the Court to consider and determine:
(1) Whether an application by notice of motion is the correct mode to seek a set aside of an ex parte order dismissing a proceeding?
(2) If the answer to question (1) is in the negative, what is the correct mode?
(2) Subject to answer to questions (1) and (2) above, whether the Applicant has met all of the requirements for a set aside of an ex parte order dismissing the proceeding?
Relevant Background and Facts
3. Aiwasi, issued this proceeding on 12th November 2007 claiming a breach of a contract of employment between himself and the Oro Provincial Government for the position of District Administrator of the Ijivitari District in the Oro Province. After the close of pleadings, the matter was on the Court’s directions hearing list for some time. On 16th October 2013, the Court amongst others directed Aiwasi to reconsider his claim and ensure that he had the necessary legal foundation for his claim with a view to withdrawing the proceeding. Subsequently, on 3rd December 2013 when the matter next returned to the Court, the proceedings were adjourned to 12th February 2014 to enable the First Defendant to turn up in Court and address the claim against him and the Oro Provincial Government. That was the last time the matter was in Court and Aiwasi did nothing about his claim. Concerned with a prolonged inactivity on the Court file, the Court in early February 2015, decided to have the matter listed for mention on 4th March 2015. The Court communicated that fixture by letter dated 16th February 2015. That communication required the parties to come prepared to assist the Court to progress the matter to finality.
4. On 4th March 2015 the matter came before the Court. Neither of the parties turned up ready to assist the Court as directed. Having regard to lengthy period of unexplained inactivity on the file, the Court decided to dismiss the proceedings for want of prosecution. On 27th March 2015, Aiwasi’s, Guardian Legal Services filed a notice of motion seeking to set aside the orders dismissing the proceedings. Aiwasi’s counsel, Mr. Mapiso filed the only affidavit in support of the application. He claims that his client was engaged in settlement discussions with the State and that his office received the Court’s letter of 16th February 2015 on an unspecified date after the 4th of March 2015. These claims are not supported by an evidence of the kind of steps taken in pursuance of the settlement discussions with the State and records of when the Aiwasi’s lawyers received the Courts letter. Clearly therefore these are only unsubstantiated claims. Aiwasi as the plaintiff has not filed an affidavit explaining the inactivity for more than a year from 3rd December 2013 to 04th March 2015 and demonstrate that he is now committed to pursue his matter with due compliance of the orders and directions of the Court.
Whether an application by notice of motion is the correct mode to seek a set aside of an ex parte order dismissing a proceeding?
5. With these facts in mind I will deal with the first issue presented first. In my recent decision in Harry Tovon v .Carl Malpo & Ors,[1] I said it was procedurally wrong to file and proceed on the basis of an amended notice of motion. I explained as follows:
“Unlike the provisions dealing with amendment of pleadings under O. 8, rr. 50 and 51, there is no such provision in the National Court Rules (Rules) for a party to file and proceed on the basis of an amended notice of motion. What this means is that, should there be a change regarding the basis upon which a particular relief in a notice of motion is sought or the kind of relief sought changes so much so that the motion cannot be moved on the basis of the original notice, the motion should be withdrawn and a new one filed in its stead, incorporating the changes required. Persisting on the current practice of simply filing an amended notice of motion with the tacit approval of the Court is licensing a process that is not authorized by the Rules. I suggest in the strongest term possible that, this practice cease immediately to avoid continuance in irregularity.”
6. Since the irregularity was highlighted formally for the first time in that case, I decided to entertain an amended motion on its merits. I did however, warn that:
“In future however, lawyers and parties will have sufficient notice and will have no excuse. Hence, the Court will not allow parties and lawyers to continue with this otherwise irregular practice.”
7. Tovon v. Malpo (supra) was decided on 4th April 2016, which was after the filing of the amended motion in this case. Accordingly, I will not apply the warning in this case and only repeat the warning for any amended motions filed after the 4th of April 2016.
8. Amended or not, the question remains. The question asks if a notice of motion is a correct process or mode to use to seek a set aside of an order that dismisses any proceeding. Again in the Tovon v. Malpo (supra) I answered that question in the negative and said a notice of motion cannot re-activate a matter concluded by a consent order, judgment and or an order of the Court. I then provided the following reasons:
“11. Firstly, O. 4 r. 4 of the Rules provides for motions in this terms:
‘4. Mode of proceedings in interlocutory matters.
Proceedings may be instituted by motion, only if they relate to an interlocutory application.’
12. Rule 37 of the same Order reiterates this position in these terms:
‘37. Interlocutory or other application in proceedings. (19/1)
An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.’
13. The word interlocutory comes from the word interloqui which is to say ‘speaking between’. According to L.B. Curzon’s A Dictionary of Law the term means ‘Not final, (i.e., during the course of an action) as in an interlocutory (interim) injunction. Similarly, an internet based legal dictionary defines the word in terms of:
‘Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point of matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit.’
14. The Australian Commonwealth Corporations Act 2001, makes the position much more clearer by providing a definition for the phrase ‘interlocutory application to mean an application that:
(a) is made during the course of a proceeding; and
(b) is for an order that is incidental to the principal object of that proceeding, including, for example:
(i) an order about the conduct of that proceeding; or
(ii) an order assisting a party to that proceeding to present their case in that proceeding; or
(iii) an order protecting or otherwise dealing with property that is the subject matter of that proceeding;
but not including an order making a final determination of existing rights or liabilities.’
15. The above, sources put beyond any argument that, an ‘interlocutory application’ is an application that can be made during the currency of a proceeding to deal with any interlocutory matter prior to a final determination of the issues presented in the case and hence a resolution of the proceedings. In other words, an interlocutory application can be made prior to the termination or conclusion of a proceeding. It follows therefore that, no motion can be filed once a proceeding has been concluded. This is understandable as an aggrieved party has recourse by way of appeals or reviews as the case might be. Order 12 r. 8 (4) strengthens this position by precluding from the reach of the National Court’s power to set aside orders made even in the absence of a party where the order determines an issue between the parties or in the proceeding or the proceedings are dismissed. The provision reads:
‘(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 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 and excepting an order for dismissal of proceedings so far as the order concerns the whole or any part of any claim for relief.’
16. The position is further strengthened by the position the Supreme Court has taken of late. Through the Supreme Court, the law and practice in PNG in my view has correctly developed to the current position, where appeals from a trial court lie to an appellate court like the Supreme Court as of right, if the decision appealed from finally determines the proceedings or an issue between the parties.”
9. Then in Tovon v. Malpo (supra), I noted that a consent order which was the subject of Tovon’s application, finally resolved those proceedings and went on to say:
“In other words, the consent orders concluded or terminated the proceedings. Hence, there is no current proceeding upon which the Applicants can file and proceed on a motion. Order 4, r. 4 and r. 37 permits a notice of motion to commence only with interlocutory proceedings in the course of pending proceedings. The correct mode is either an appeal or a review or fresh proceeding claiming fraud or misrepresentation as against the consent order which finally resolved this matter and those who facilitated it. Seeking to reactivate a concluded proceeding by way of a motion is clearly unauthorized and amounts to an abuse of the process of the Court, which attracts an immediate penalty of dismissal for the protection of the Court’s due processes and procedures.”
10. I gave a second reason for answering the question in the negative. That reason was:
“Public policy requires finality in litigation. This principle says, subject only to one’s right of appeal and review where that is available or going by the slip rule principle, there must be finality in litigation once a final decision has been arrived at or a matter before the court gets concluded. The decision of the Supreme Court in Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea,... stated this principle in terms of:
‘...the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a Court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law. As this Court is a final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be, an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is it to be exercised simply because a party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases.’
11. I then commented:
“As might be apparent from the Supreme Court’s decision, there must be finality in litigation, subject to a rehearing in cases where for good reason an earlier decision was wrongly arrived at by reason of a misapprehension of the facts or the law. Where the error is in a decision of a final appellate or review court, correction is through the application of the slip rule principle. Where the error is at a lower trial level it is usually by appeal or review in accordance with their respective governing rules and principles and any statutory provision on point.”
12. Applying this principles to the case then before me, I observed:
“In this instance, the consent orders concluded the proceedings. Hence, there is no current or existing proceedings upon which the Applicants’ motion could be filed and proceeded upon. A question that necessarily arises then is this. What is the correct mode to revisit an order (by consent or by order of the Court) that concludes a proceeding? That question is the subject of the second issue.”
13. In the present case, the order dismissing the proceedings ended the currency of this proceeding. In other words the matter becomes concluded upon the issuance of the dismissal order. That being the case, there is no current proceeding upon which Aiwasi’s original or the amended motion could stand upon. Simply put, there is no foundation for the motion not only as a matter of law but also as a matter of fact, logic and common sense. That being the case, the next question is what is the correct mode or process to use to get around the orders dismissing this proceeding.
What is the correct mode or process to use to get around the orders dismissing this proceeding?
14. Learned counsel for Aiwasi, Mr. Mapiso ably refers to the case law on applications seeking to set aside ex parte orders dismissing proceedings. In so doing, learned counsel has also correctly, pointed out that there are two lines of authority. One line of authorities is led by the decision in Peter Malt v. Dean Queen & Christian Union Mission Inc.[2], per Makail J., which say the National Court has no jurisdiction to entertain an application seeking to set aside orders dismissing proceedings. The other line of cases is led by decisions such as the one in Thomas Rangip & Fountain Finance Ltd v. Peter Loko & National Capital District,[3] per Hartshorn J., which say the opposite.
15. In my decision in Thomas Babia v. Mr. Pepi Kimas,[4] I adopted the Malt v. Queen (supra) line of cases. There I noted that finality in proceedings through dismissal of proceedings occurs in any of three instances namely:
(1) dismissal of proceedings after trial on a plaintiff failing to establish his case on the required standard of proof;
(2) dismissal of proceedings for want of prosecution on a party’s formal application for such an order on account of a plaintiff’s unexplained prolonged inactivity;
(3) dismissal following a plaintiffs failure to turning up and prosecute his case on the date fixed for trial.
16. I then referred to the Supreme Court in Christopher M Smith v. Ruma Constructions Ltd[5] and noted that that decision offers us some assistance and guidance as to the consequence that should follow. In that case, an application had been successfully made for summary judgment resulting in the National Court signing judgment with damages to be assessed. All that happened ex parte upon the Respondent and its lawyer’s failing to turn up at the hearing despite being served with the application and having notice of the date of hearing. Aggrieved by the decision, the Respondent appealed to the Supreme Court and later discontinued it. Thereafter, it filed an application seeking a set aside of the ex parte summary judgment, which went before a different judge of the National Court who heard it and upheld it on the basis that, there were serious questions of fact and law in issue which warranted proper hearing and determination. That decision aggrieved the Appellant and he appealed against it.
17. The Supreme Court of which I was a member quashed the decision of the National Court and effectively reaffirmed the earlier ex parte summary judgment. That was on the basis that, the National Court did not have the jurisdiction to review its own decision in the guise of an application for set aside of an ex parte order. In so doing, the Supreme Court emphasized the point that, once a Court has decided on an issue, it cannot rehear the matter save only on appeal or review by the Supreme Court.
18. The Supreme Court, per Kapi DCJ, (as he then was) with whom, I agreed said:
“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”. (Emphasis supplied)
19. I went on to emphasise the point that ,the Respondent should have appealed to the Supreme Court as the correct approach and I referred to, His Honour Kapi DCJ in the same Supreme Court decision referred to the Supreme Court’s decision in Bruce Tsang v. Credit Corporation (PNG) Ltd,[6] where the National Court’s decision to enter summary judgment was appealed to the Supreme Court under the Supreme Court Act. This reasoning and principle proceeds on the basis that, once a Court has come to a decision, it is final subject only to one’s right of appeal or review.
20. I also observed that, this does not undermine the National Court’s inherent jurisdiction to make orders to do justice in circumstances where there are no other remedies available and to review decisions pursuant to s.155(4) of the Constitution. But that is a “last resort” remedy. These are concurrent powers the National and the Supreme Courts have. Citing Makail J., in Malt v. Queen (supra) I observed these powers are in the nature of prerogative writs which are by their very nature supervisory powers exercisable over courts and tribunals below them. That being the case, I noted that it is well settled law now that the Supreme Court has no power to review a decision of another Supreme Court.[7] In the same way the National Court cannot review a decision of another National Court or its own decision except in circumstances where a judgment or order may be set aside pursuant to statute or common law. The power they have under this constitutional provision is only to make orders that are remedial, adjectival as well as procedural in nature and there is a body of case law supporting this position[8] and does not grant any right.
21. In the Malt v. Queen (supra), the plaintiff applied for a set aside of an ex parte order which dismissed the proceedings for want of prosecution. His Honour, Makail AJ., correctly noted that, it was not a case of the plaintiff having exhausted all the available remedies and that great injustice would occur if the ex parte orders were not set aside. His Honour came to that conclusion because the plaintiff did not sufficiently demonstrate to the Court’s satisfaction that, he had exhausted all available remedies or that he was left with no remedy. One of the available remedies was the plaintiff’s right to appeal to the Supreme Court. Alternatively, if the plaintiff could, issue fresh proceedings. That was possible if he was within time in terms of the relevant provisions of the Frauds and Limitations Act 1988. This was possible because the dismissal order came not upon a substantive hearing and determination on the substantive merits or issues raised in the proceedings which could have given rise to a defence of res judicata[9] but was a technical knockout.
22. I also had regard to another decision which arrived at a similar decision in refusing to entertain and allow for a set aside of an ex parte order dismissing proceedings for want of prosecution. That was the decision of Manuhu AJ, (as he then was) in Makop On v. Billy Parako.[10]
23. After having regard to these case authorities I concluded:
“The foregoing decisions of the Supreme and the National Courts make it abundantly clear that, when a Court has decided to and a pronouncement has been made for a dismissal or strike out of any proceedings, whether inter parte or ex parte, that Court, however it is constituted, is without jurisdiction to review its own decision. At that stage of the proceedings, the Court becomes functious officio. This is because, by virtue of the dismissal or strike out order, the proceedings are at an end both from a logical and legal view point.
24. I then went into what I believe is a fundamental point which concerns final and interlocutory orders or judgements. In respect of that point I said:
“It must be clearly understood that, orders dismissing or striking out proceedings are not similar and hence do not have the same effect as interlocutory orders made on the basis of interlocutory applications. For such orders are interlocutory by their very nature and do not affect or render none existent the substantive proceedings. By reason of that effect, the law states clearly that, no substantive relief can be sought and obtained out of an interlocutory application, but only orders that are facilitative of a proper hearing and determination of the substantive matter and or those that deal with any interim pressing issue, while awaiting a determination of the substantive proceedings.[11] It goes with saying more that; the substantive proceedings remain to be dealt with. Given that, it is clear law that, all interlocutory orders are open to set aside or variation by the same Court.[12]
25. Relying on the decision of the Supreme Court in Richard Dennis Wallbank and Jeanette Manifie v. The Independent State of Papua New Guinea,[13] counsel for the plaintiff Mr. Narokobi, urged the Court to revisit its order dismissing the proceeding and have it set aside. I rejected that argument. I reasoned, that line of cases concerned the Court’s inherent power to correct an apparent error appearing on the face of the record of a court’s judgment, which has in time became known as the slip rule. At the same time, I noted that many parties through their lawyers have attempted to use the slip rule to re-agitate and effectively re-argue their cases particularly before the Supreme Court. In so doing, they tried to have a second bit at the cherry in most cases. The lawyers have been trying to cover-up for their failures more than any apparent error made by the Court appearing on the face of the record. I then pointed out that the decision of the Supreme Court in the matter of Motor Vehicles Insurance (PNG) Trust Limited v Yama Security Services Limited[14] put all this unnecessary arguments and Court’s time wasters to rest by reinforcing the correct intent of the slip rule, which is only to correct apparent errors on the face of the Court’s record and nothing more.
26. The decision in Rangip v. Loko (supra) introduces a view contrary to the Malt v. Queen (supra) line of cases. In that case, counsel did refer His Honour to the decision in the Malt v. Queen (supra) case. His Honour noted:
“...In Malt v. Queen (supra), Makail AJ refers to the Supreme Court case of Smith v. Ruma Constructions Ltd (2002) SC695 which was a successful appeal against a National Court decision that set aside a summary judgment that had been granted after an ex parte hearing. Kapi DCJ (as he then was) after considering the approach taken by the trial judge said:
‘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 r8 of the Rules.’”
27. His Honour went on to say, Kapi DCJ had however also:
“...said that the discretion to set aside a default judgment under Order 12 Rule 35 is couched in identical terms to Order 12 Rule 8(2) and (3) and that the principles governing the exercise of discretion would be the same. He then said that those principles are well settled and detailed them.”
28. His Honour then comment:
“...is clear then that Kapi DCJ was of the view that the National Court could set aside a National Court judgment or order under Order 12 Rule 8 after a consideration of the correct principles governing the exercise of discretion, but that in the case before Kapi DCJ, the trial judge had not done so and had instead embarked upon a review of another National Court judge’s decision.”
29. Thereafter, His Honour noted what Makail AJ said in Malt v. Queen (supra) and went on to say:
“As to whether an ex parte order dismissing a proceeding for want of prosecution is a final order does not require determination here. I note in this regard that there are conflicting Supreme Court decisions on this point as to what constitutes a final order: Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119 and North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145.
If such an order is a final order, although the general rule is that a court ordinarily has no power to set aside a final order once it has been passed and entered, Order 12 Rule 8 National Court Rules and the New South Wales equivalent, Pt 40 r 9 from which our Rule is derived, deal with several exceptions to the general rule: Ritchie’s Supreme Court Procedure Vol. 1 40.9.
One of those exceptions is where the judgment or order has been made ex parte: Order 12 Rule 8(2) (b) and (c), and (3) (a). In this regard I refer to the New South Wales Supreme Court decision of Nicholson v. Nicholson [1974] 2 NSWLR 59, where Jenkyn J., after noting that the power to set aside or vary an order can be given to a court by a statutory provision or a validly made rule, considered Pt 40 r 9(3), which is the same as Order 12 Rule 8(3) and concluded at p.64 that its application is not limited to interlocutory orders but applies also to final orders.”
30. His Honour then concluded:
“After considering Smith v. Ruma Constructions Ltd (supra) and the other authorities cited, I am of the view that this court does have jurisdiction to set aside an ex parte National Court order that dismisses a proceeding for want of prosecution and to that extent, I respectfully disagree with Makail AJ where he expresses a contrary view in Malt v. Queen (supra).”
31. For a number of reasons, I have great difficulty accepting the Rangip v. Loko (supra) line of cases. Firstly, they appear to have had no regard to the context in which the views were expressed by Kapi DCJ in the Smith v. Ruma Construction Ltd (supra). There I was a member of the Court and the grounds of appeal which gave context to the judgment as summarized by Kapi DCJ were:
“1. That the trial judge erred in concluding that Woods J had evidence demonstrating the existence of real and serious issues of fact and law.
32. As can be seen from these grounds of appeal, the case concerned, the trial judge failing to adopt and applying the correct principles for setting aside ex parte judgments, decision or orders. Instead, the learned trial judge proceeded to effectively review a decision by another National Court on an application for set aside of an ex parte summary judgment. This the Supreme Court said was clearly wrong. In my judgment in that case, I added:
“...this Court on the respondent’s application granted leave for it to proceed to an appeal against the summary judgement on the basis that the summary judgement was a final judgement. When this Court said that, in my view, nothing could be done about the summary judgement except to appeal against it. So the only avenue open to the respondent was to pursue its appeal. If it was faced with difficulties putting its evidence disclosing a defence on the merits into Court for the purpose of the appeal, it had the opportunity to ask the Supreme Court to give such directions or make such orders as were necessary to bring them into Court. No such application was made.
When faced with these facts or chronology of events, it was important that the National Court address them and provide reasons as to why it consider itself as still having the jurisdiction to deal with the application at the first place even before getting into the merits of the application. ... In my view, the National Court was without any jurisdiction to entertain any application questioning the summary judgement after this Court had ruled that the summary judgement was final and that the respondent should pursue its appeal.”
33. Having so decided both Kapi DCJ and myself pointed out the correct principles governing applications for set aside of ex parte orders as at the time of coming to the decision in that case. The issue of whether the National Court has jurisdiction to revisit its own ex parte decision that either dismisses or orders final judgment for a party was not strictly speaking an issue before the Court and indeed never became the subject of any judgment until the decision in Malt v. Queen (supra).
33. Secondly, much later after the decision in Smith v. Ruma Constructions Ltd (supra) the National Court per the decision in Malt v. Queen (supra) took a closer look at the provisions of O.12, r.8 and in particular sub-rule (4) of the National Court Rules. In that context, the Court addressed specifically the question of whether the National Court has jurisdiction to revisit its own ex parte decision which either dismisses or orders final judgments and answered that question in the affirmative.
34. The provision in question reads:
“(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 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 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.”(Emphasis supplied)
35. It is clear to me that, sub-rule (4) retains and reinforces the power that is vested in the Court to set aside orders or judgments entered in any of the circumstances listed in sub-rules (1) – (2). At the same time however, this provision makes it clear that there are two exceptions to that. These are in cases where the:
(1) “order or judgment determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief;” or
(2) order is “for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.”
36. I can understand why this is the case. Once the Court has come to a determination of any claim or relief or any question arising in any proceeding that becomes the end of the claim, relief or question. The Court’s task is then completed and the Court becomes what is technically known as “functus officio”. The only correct way for a party to get around that would be an appeal to the Supreme Court. Similarly, where an order or judgment dismisses the proceedings, the proceedings come to an end by virtue of that decision. Again, the only way around such a decision or order is by way of any appeal or if the dismissal was technical and not after a substantive hearing, the plaintiff may reissue proceedings. Also for reasons I have already given at paragraphs 8 to 13 above there would be no currency of proceedings that would facilitate and or provide foundation for a motion seeking to set aside the order that finally determines the proceedings to stand on.
37. In Feflo Plantation (PNG) Ltd v. Lolo Development Corporation Ltd,[15] Sawong J., took a similar view in the following terms in a case of a judgement for failure to give discovery:
“As to Order 12 Rule 8(4), this is a general discretion but the provision especially does not extend to orders that determine 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. In other words, Order 12 Rule 8(4) does not apply to a final determination. If a defendant is dissatisfied with a ruling which finally determines a proceeding, it should lodge an appeal. The judgment sought to be set aside was entered in July 2012, as time was abridged and therefore the first defendant had no standing to contest or rely on the National Court rules to set aside the orders that were made against it. Its’ remedy was to lodge an appeal against that decision to the Supreme Court.”
38. Similarly, Her Honour late, Davani J., in POSFB v. Paul Paraka trading as Paul Paraka Lawyers,[16] in the following terms in the a case of a summary judgment:
“As for O. 12 R. 8 (4), it provides that the Court may set aside or vary any order except insofar as the order determines any claim for relief. In this case, the nature of the order for summary judgment determined the whole claim, as such O. 12 R. 8(4) does not apply.”
39. Earlier in PNG National Stevedores Pty Ltd & Anor v. The Honourable Andrew Baing, PNG Harbours Board & Anors; PNG Harbours Board v. PNG National Stevedores Pty Ltd,[17] Kapi DCJ came to a similar conclusion in the following terms:
“I am also of the opinion that O 12 r (8) sub-rule (4) is not applicable. This sub-rule is limited by the words ‘except so far as the order determines any claim for relief and..’. In the present case the order in question determines the relief against the defendants.”
40. That was in a case where an application was made to have a consent order finalizing the proceedings set aside. The applicant relied on a number of provisions of the National Court Rules, including O. 12 r. 8 (4). His Honour was of the view that the provisions in question could not be used to set aside the order that was sought to be set aside.
41. Thirdly, the other Supreme Court decisions like the one in Daniel Bali Tulapi v. Alphonse Niggins[18] and Salamo Elema v. Pacific MMI Insurance Ltd,[19] with respect did not give any serious consideration to the provisions of O. 12 r. 8 (4) and have lodged strait into a consideration of the principles governing a set aside of ex parte orders. This was the case because the question of whether or not the National Court can revisit its own or another National Court’s decision did not arise in those cases. Indeed in the latter case the Supreme Court noted:
“Everyone accepts that the National Court has power to set aside an order it has previously made ex parte, irrespective of whether the ex parte order was made by the same Judge hearing the motion to set it aside or a different Judge. The power to set aside an ex parte order is a matter of discretion.”
42. In Tulapi v. Neggins (supra) the Supreme Court had an application for a set aside of any earlier order dismissing an appeal for want of prosecution also by the Supreme Court. Apart from acknowledging there being no provision in the Supreme Court that allows for such an application the Court merely adopted the principles governing applications for set aside of ex parte orders. This is what the Court said:
“In our opinion the principles applicable in an application such as is before us now are the same as those pronounced by the courts in dealing with the relevant provisions of the National Court Rules concerning similar applications, and that is the applicant must satisfy the court:
(a) why the order was allowed to be entered in the absence of the applicant,
(b) if there is a delay in making the application to set aside, a reasonable explanation for the delay, and
(c) that there is a reasonable explanation for the proceeding not being prosecuted with due diligence...”
43. The Court then went straight into an application of the relevant principles and dismissed the application. Effectively, this was repeated in Elema v. Pacific MMI Insurance Ltd (supra) with none of the parties taking any issue on the Courts jurisdiction.
44. Having regard to the foregoing reasons, I would decline the application. There is a further reason to decline the application. This has to do with the plaintiff failing to make out a case of set aside the ex parte dismissal order. This is the subject of the third and final issue before the Court.
Has the plaintiff made out his case for a grant of his application?
45. This matter was last before the Court on 03rd December 2013 when it was adjourned to 12th February 2014. Aiwasi, being the plaintiff has the primary duty and responsibility to have his proceedings duly prosecuted and without any unnecessary delay. He however, failed to do so for a period of over one year from 03rd December 2013 to 03rd December 2014. This caused the Court to have the matter listed before it on 4th March 2015 and formally informed the parties by letter dated 16th February 2015.[20] In the same letter the Court asked the parties to come ready ‘to progress this matter to its finality.” Come 4th March 2015, neither Aiwasi nor his lawyer turned up ready to assist the Court as requested. In the circumstances, the Court decided to dismiss the proceedings for want of prosecution.
46. The principles governing applications seeking to set aside ex orders are clear. These are:
(1) Why the judgment was allowed to be entered in absence of the applicant.
(2) If there is a delay in making the application to set aside, a reasonable explanation as to the delay.
(3) That there is a defence on the merits or an arguable case.[21]
Why the judgment was allowed to be entered in absence of the applicant.
47. Considering first the first of these three requirements, I note in his affidavit, counsel for Aiwasi Mr Mapiso says his office received the Court’s letter dated 16th February 2015 sometime after the 4th of March 2015. Neither a copy of the letter annexed to his affidavit nor in his affidavit is there any indication of when exactly the letter was received. Usually most law firms and other offices would record the date when letters to them are received and when letters out from their offices get sent out. A copy of the records of incoming and outgoing mail showing when the letter was received would have assisted. In the absence of any such evidence, I find the evidence of learned counsel evasive. It does not in my view constitute good reason for allowing judgment to go in his and his client’s absence. From 16th February 2015 to 4th March was a period of 15 days, a period which I consider is sufficient to have the letter delivered to Mr. Mapiso’s law firm’s office well before the 4th March especially when both the Court and Mr. Mapiso’s postal addresses are located in the National Capital District.
If there is a delay in making the application to set aside, a reasonable explanation as to the delay.
48. Turning to the next factor as to the timing of this application, I note the counsel for Aiwasi filed this application on 27th March 2015. That was about 23 days after the dismissal of the proceedings on 4th March 2015. I am prepared to accept this as acting promptly and there is was no inordinate delay. Hence the second factor favours the application.
Is there an arguable case?
49. Finally, I turn to the last of the three requirements. The application before the Court is not supported by any affidavit from Aiwasi, the plaintiff himself. Instead, there is only an affidavit by his lawyer, Mr. Mapiso. It is well settled law that, a lawyer’s affidavit on behalf of his client is not sufficient. As early as 2000, when I came on the bench a situation like the present, presented itself in the case of Peter Flynn Aihi v. The State.[22] There, in a bail application, only the applicant’s lawyer filed an affidavit and none from his client or any other person possessed with the relevant evidence. I observed that, what the lawyer deposed to “can hardly be facts or anything of any evidentiary value on which this court can act...”. In support of that position, I referred to the leading case on point, namely Provincial Government of North Solomons v. Pacific Architecture Pty Ltd,[23] and quoted the following from page 148 of the judgment:
“His lawyer has explained why the delay occurred and then annexed the proposed document of defence, but the defence is not verified by an affidavit from an officer of the provincial government as required by the writ of summons. The lawyer for the defendant has merely listed some probable area for argument for a defence, but he has not presented the implications of the statement as set out in defence, which might suggest that there might be an argument on the merits. Further, it is only the lawyer's belief, not affirmed by an officer of the defendant. The court was entitled to so consider that the application discloses no defence on the merits.”
50. I also referred to the decision of the Supreme Court in Curtain Bros (QLD) Pty Ltd and Kinhill Kramer Pty Ltd v. The State,[24] where the Supreme Court on appeal upheld objections to affidavits sworn by lawyers on the basis that what they deposed to were not of any evidentiary value but arguments or submissions. Further, I noted that, in Motor Vehicles Insurance (PNG) Trust v. Viel Kampu,[25] the Supreme Court upheld on appeal against a decision for the Respondent based on an affidavit by her lawyer without any affidavit from the Respondent or any other person having direct knowledge and involvement. Most recent decisions of the Supreme Court as in Muriso Pokia v Mendwan Yallon;[26] Dr Yvonne Sapuri v. Peter Kolly[27] the Court continue to uphold this principle.
51. Here as noted, there is not a single affidavit from Aiwasi the plaintiff himself or indeed anybody with the relevant evidence on the substantive merits of the case. This raises doubt as to whether the plaintiff is aware of this application and whether his lawyer filed this application with his instructions. The only affidavit filed in support of the application by Mr. Mapiso does not address this point in any manner or form.
52. In an attempt to explain the inordinate delay which caused the Court to list the matter on 4th March 2015, Mr. Mapiso claims this period of more than one year was spent on talking and pursing settlement discussions with the State. No specifics as to who did what when, where and how are deposed to if this claim of the lawyer is true. The only specific date and event disclosed is 20th November 2014. That is when it is claimed that the lawyer met with a Ms Sharon Vate and Linus Wafi of the Solicitor General’s discussing settlement in this claim. It is further claimed that, the meeting resulted in Ms Vate indicating her willingness to take instructions for settlement and make an offer by 20th December 2014. There is no evidence of what happened next. There is however no primary or other evidence such as for example, evidence such as a file notes confirming the appointment for the alleged meeting, notes taken at the meeting, any follow up letter or communication confirming what was discussed and who was to do what by what time is annexed to the affidavit. If at all this evidence is about what happened on 20th November 2014. But what exactly did the plaintiff do about his claim from 3rd December 2013 until 20th November 2014? There is no evidence explaining what happened during that period.
53. This claim if at all has any merit is primarily against the Oro Provincial Government. The relevant defendants being the first and second defendants have not shown any interest in defending or settling this proceeding. In any case, following a number of directions hearing it appeared clear to the Court that Aiwasi might fail in his claim. Consequently, the Court on 16th October 2013 directed him to reconsider the legal basis for his claim with a view to discontinuing the proceeding. The affidavit of Mr. Mapiso does not address this point or indeed the merits of his client’s claim at all. Obviously, the applicant has not established the third factor for the Court to favour a grant of his application.
54. Having due regard to all of the foregoing discussions and reasons, I am not satisfied that the application has been made out. Accordingly, I order its dismissal and order that the Plaintiff pay the State’s costs, which costs shall be taxed if not agreed.
__________________________-______________________
Guardian Legal Services: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Third Defendant
[1] (2016) N6240.
[2] (2009) N3577
[3] (2009) N3714
[4] (2009) N3940
[5] (2002) SC695
[6] [1993] PNGLR 112.
[7] William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844.
[8] Ibid and see also 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.
[9] See:Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906; Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143.
Kundu Consultants Limited v The Independent State of Papua New Guinea (2001) N2128.
Eki Investments Limited v Era Dorina Limited; Era Dorina Limited v Eki Investments Limited (2006) N3176.
[10] (2004) N2593; For other cases supporting this view see Breni Kora v. Sergeant Manuma Titima (2012) N4730; Robert Kittika v. Pastor Peter Kapia & Ors (2010) N4051
[11] Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1999) SC607.
[12] Ibid and see also The State v. The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344 and Daniel Ronald Walus v. The State (2007) SC882.
[13] [1994] PNGLR 78.
[14] (2009) SC1004.
[15] (2013) N5065.
[16] (2004) N2791.
[17] (1998) N1705.
[18] (2011) SC1111.
[19] (2007) SC1321.
[20] Copy is annexure “A” to the affidavit of Wailyo Mapiso sworn and filed on 27th March 2015.
[21] See Smith v. Ruma Constructions Ltd (supra); and Elema v. Pacific MMI Insurance Ltd (supra).
[22] (2000) N2006.
[23] [1992] PNGLR 145.
[24] [1993] PNGLR 285.
[25] (1998) SC587.
[26] (2014) SC1336.
[27] (2014) SC1310.
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