N10760

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 14 OF 2018

EREMAS WARTOTO

V

THE STATE & ORS

Waigani: Narokobi J
2023: 4th August
2024: 18th April

PRACTICE AND PROCEDURE – Application to Set Aside Ex-Parte Orders – Relevant Principles Considered – No Reasonable Explanation Provided – Application dismissed

The plaintiff successfully obtained judgment on liability. Following that decision, the plaintiff took no action to prosecute the case for a period of one year. This prompted the defendants to move the court to dismiss the case for want of prosecution, which was granted. Following the dismissal an application was filed to set aside the orders, which were obtained ex-parte. This is the court’s ruling on that application. 

Held:

(1)	There was a period of one year, from 30 June 2021 to 21 June 2022 of non-activity on the file.  No evidence is provided from the plaintiff that he followed up on his case during that time.  Considering the principles to set aside ex parte orders held in Lipu Yangukali v. George Sikin (2022) SC2223, despite the application being filed promptly, no reasonable explanation is provided for the plaintiff’s non- appearance when the orders were made in his absence, and also no reasonable explanation was forthcoming for not prosecuting the case with due diligence, such that the application to set aside the ex parte orders should be refused.

Cases Cited:

Lipu Yangukali v. George Sikin (2022) SC2223
Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514

Legislation:

Constitution
National Court Rules

Counsel:

Mr Yange, for the Plaintiff
Ms Ohume, for the Defendants

RULING

18th April 2024

1.	NAROKOBI J: The plaintiff had filed proceedings claiming his rights were violated when he was forcefully removed from the hospital by the Correctional Services officers.  At the time he was a state prisoner.  After trial, I dismissed most of the claims but accepted his claim under s 41(1) of the Constitution.  The matter than proceeded to assessment of damages.  After several times the matter was mentioned, and there being no appearance, the proceedings were dismissed with no orders as to costs. 

2.	The dismissal of proceeding was made on 27 February 2024 with the following orders:

1.	The entire proceedings is dismissed for want of prosecution pursuant to Order 10 Rule 5 of the National Court Rules and Order 10 rule 9A (15) (1) (a) and (2) (a) (b) and (c) of the Listings Rules 2005.

2.	No orders as to costs.

3.	File is closed.

4.	Time is abridged.

3.	On 7 March 2023 the plaintiff filed a notice of motion seeking to set aside the ex-parte orders.  The plaintiff relied on his lawyer, Paul P Yange to file an affidavit in support of the application. The affidavit was filed on 4 March 2023.  In that affidavit Mr Yange explains that he did the case on a pro bono basis. He is based in Kokopo.  He did not receive the notice of the application to dismiss the proceeding for want of prosecution.  That was why he did not appear at the hearing of the application to dismiss. He also says that he was served short of the notice period before the application to dismiss was moved. The proceeding was than dismissed for want of prosecution.  

4.	The plaintiff relied on the case of Lipu Yangukali v. George Sikin (2022) SC2223, citing paragraph 6 of the judgement, where the Supreme Court said:

The question of whether an order made in the absence of a party ought to be set aside is a matter of discretion to be determined after considering: (1) why the order was made in the absence of the party wanting it set aside; (2) whether there was a delay in moving the court to set aside the order and if there was delay, whether there is a reasonable explanation for it; and (3) whether there is a reasonable explanation for the proceeding not being prosecuted with due diligence.

5.	In respect of the three considerations the plaintiff submits firstly that after the decision on liability was given on 11 May 2022, he did not receive any further notice regarding the proceeding.  Secondly, the application was filed promptly that is on 7 March 2023, after the order for dismissal was made on 27 February 2023.  Thirdly, the plaintiff submits that after the matter was adjourned to the registry on 21 June 2022, no information was received regarding the case.

6.	Finally, the plaintiff submits that he is resident in Kokopo, East New Britain Province, and the matter was taken up on pro-bono basis.  The Human Rights Clerk and the defendants did not exercise courtesy to inform the plaintiff’s lawyer for adjournments or dates given for mention of matter, more particularly after the 11 May 2022 decision on liability. 

7.	The defendants oppose the application and rely on the affidavit of Priscilla T Ohuma. The defendants submit that based on the court records, since the last appearance on 21 December 2020, the Plaintiff has never shown any interest again on the matter.  The plaintiffs own actions have resulted in the matter being dismissed.

8.	The defendants rely on the case of Wawoi Guavi Timber Company Ltd v Molu (2016) SC1514 where an application of dismissal of the proceeding was heard ex-parte and plaintiff was not given an opportunity to be heard.  There the court took the view that counsel bears much responsibility of prosecuting their case. The defendant submit that the plaintiff should not dictate the terms of the operation of the court.  The application should be dismissed.

9.	In my assessment of the application and the submissions, I accept the plaintiff’s case authority on the principles I should consider to decide whether I should set aside my orders of 27 February 2023.

10.	Regarding the first consideration, that is why the orders were made in their absence, I am not satisfied that a reasonable explanation was provided for their non-appearance.  It is the responsibility of the plaintiff to contact the court registry to obtain information about the progress of the case.  Since the last appearance of the plaintiff on 22 October 2019, there has been no appearance although the plaintiff’s counsel said he came to court on 21 December 2020 and discovered the matter was not listed.

11.	I have considered the file endorsements and noticed the following status:

•	30 June 2021 – No appearance by the plaintiff.

•	19 July 2021 - No appearance by the plaintiff.

•	22 July 2021 - No appearance by the plaintiff.

•	11 May 2022 - No appearance by the plaintiff.

•	20 June 2022 - No appearance by all parties, including the plaintiff.

•	10 May 2022 - No appearance by the plaintiff.

•	21 June 2022- No appearance by the plaintiff.

12.	The plaintiff’s explanation is that he received no further notice until he was informed of the application to dismiss.  In my view, this is unacceptable. There was a period of one year, from 30 June 2021 to 21 June 2022 that the plaintiff showed no interest to confirm the status of the matter.  One cannot shift the responsibility to the registry.  I see no evidence from the plaintiff that he followed up on his case.  For this reason, I am not satisfied that the Plaintiff has shown reasonable explanation to explain his non- attendance at the time the orders were made in his absence.  Although he has filed the application promptly, as he has submitted, there is no good explanation in relation to his non- communication with the registry, and therefore I see no good reason for the proceeding not being prosecuted with due diligence.  For these reasons, I dismiss the application.

13.	Since the plaintiff says he is doing the case on a pro-bono basis, no order is made as to costs.

Islands Legal Services: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Defendants