2 Fast Motors Ltd v Digicel (PNG) Ltd [2017] PGNC 45; N6662 (23 January 2017)

N6662

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.1503 OF 2009

BETWEEN:

2 FAST MOTORS LTD
Plaintiff

AND:
DIGICEL (PNG) LIMITED
Defendant

Waigani: Hartshorn J
2016: 18^th March
2017: 23^rd January

Application to set aside a judgment

Cases:

Martha Tilto v. Qantas Airways Ltd (1998) SC541
Smith v. Ruma Constructions Ltd (2002) SC695
Thomas Rangip v. Peter Loko (2009) N3714

Counsel:

Ms. P. Rumints, for the Plaintiff
Mr. J. Munnell, for the Defendant

23^rd January, 2017

1. HARTSHORN J: This is a decision on a contested application to set aside the decision of this court delivered on 1^st February 2016. That decision was amongst others, that judgment is entered for the plaintiff with damages to be assessed (judgment order). It followed a trial of the proceeding at which counsel for the defendant was present when the matter was called and during initial argument, until the trial was stood down to 1:00pm for continuation of the hearing. Counsel for the defendant however was not present at 1:00pm and the trial proceeded in his absence.
   

Background

2. The plaintiff sues the defendant in respect of three written lease agreements and one oral lease arrangement for the lease of the plaintiff’s vehicles by the defendant, which the plaintiff alleges were entered into by the parties. The plaintiff claims the sum of K868, 289.61 allegedly owed, or alternatively damages together with interest and costs.
   

This application

3. The defendant relies upon Order 1 Rule 7, Order 10 Rule 12(2) and (3), Order 12 Rule 8(2)(b), (3) and (4) National Court Rules and the inherent jurisdiction of this court.
   

4. The defendant submits that the judgment order should be set aside as:

a) there is a reasonable explanation for counsel for the defendant not attending the trial on time when it reconvened at 1:00 pm in the afternoon;

b) the renovations to the Court premises were a contributing factor in counsel not attending court on time;

c) it is unfair for the defendant to be denied an opportunity to present its evidence;

4. no prejudice will be caused to the plaintiff as the defendant is prepared to pay the plaintiff’s costs.
   

5. The plaintiff submits that the judgment order should not be set aside as:

a) the court had considered all of the evidence although counsel for the defendant was not present in the afternoon;

b) a reasonable explanation has not been given for the non-attendance in the afternoon of counsel for the defendant;

c) there is authority to the effect that this court cannot set aside a final judgment or review its own decision.

Preliminary

6. As to whether this court can set aside a final decision of this court, I am satisfied that it can. I refer to my decision of Thomas Rangip v. Peter Loko (2009) N3714 in this regard at [11] – [14].

7. As to whether this court can review a decision of another National Court, it cannot, but this court can set aside another National Court judgment or order under Order 12 Rule 8 National Court Rules. At [9] of Rangip (supra), after considering the decision of Kapi DCJ (as he then was) in Smith v. Ruma Constructions Ltd (2002) SC695, I said:

“9. It 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.”

8. As to the submission of the plaintiff that this court had considered all of the evidence including that of the defendant although counsel for the defendant was not present in the afternoon, with respect that is not correct. The court had ruled that the evidence of the witness of the defendant would be allowed into evidence notwithstanding that the witness was not available for cross examination, subject to this court deciding what weight should be given to that evidence. This was after counsel for the plaintiff informed the court that no objection was taken to such a cause of action being adopted. The evidence of the defendant was not tendered into evidence though, as counsel for the defendant was not present in the afternoon to tender that evidence.

Consideration

9. The principles governing the exercise of discretion as to whether an ex parte judgment or order, or a judgment or order made in the absence of a party should be set aside, are well settled and were detailed by Kapi DCJ (as he then was) in Smith v. Ruma Constructions Ltd (supra). The onus is on the applicant to satisfy the court:

a) why the judgment or 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 as to the delay, and

c) that there is a defence on the merits.

10. I am satisfied that these principles apply in respect of all of the various orders in the National Court Rules which provide for an ex parte judgment or order, or a judgment or order made in the absence of a party, to be set aside.

11. In this instance, the defendant relies upon the Supreme Court decision of Martha Tilto v. Qantas Airways Ltd (1998) SC541. This was an appeal from a refusal to set aside a judgment. Application had been made to the National Court to set aside pursuant to amongst others, Order 10 Rule 12(2) and (3). The Supreme Court upheld the appeal as it accepted that the reason for the appellant’s lawyers not being present for the trial was as a result of an error by the then Deputy Registrar of the National Court. Given this, the Supreme Court was of the view that the motion judge erred in not exercising his discretion to set aside the “...verdict and findings (sic)...” of the judge at first instance.

12. To my mind, the Supreme Court was satisfied that the first factor mentioned above, had been met, as there was a reasonable explanation as to why the appellant’s lawyer was not present for the trial, when the order sought to be set aside was made, that reasonable explanation being that it was the fault of the Deputy Registrar, and that the motion judge had made an error in not properly considering that factor. Given that the motion judge had so erred, it was not necessary for the Supreme Court to consider the other factors mentioned above.

13. In this instance, the reason given for the defendant’s lawyer not being present is that he was late. An attempt is made to blame court renovations for him not being able to take a shortcut, but it is admitted that counsel was late in arriving at the National Court car park. The fact is that counsel was 10 or 11 minutes late. No explanation is given at all as to why he was late. I am not satisfied that a reasonable explanation has been given in this regard.

14. As to whether there was any delay in making the application to set aside, I am not of the view that there was an inordinate delay.

15. As to there being a defence on the merits, there is no evidence or submissions in that regard at all.

16. Consequently, as I am not satisfied that a reasonable explanation has been given for the non-attendance of counsel, and there is no evidence or submissions as to a defence on the merits, this application should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

17.

1. All of the relief sought in the amended notice of motion of the defendant filed 1^st March 2016 is refused;
   
2. The defendant shall pay the plaintiff’s costs of and incidental to the said amended notice of motion;
   

100. Time is abridged.
     

_____________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiff
John Peter Munnull Lawyers: Lawyers for the Defendant