N11158

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 334 OF 2023

BETWEEN
JOHN DEMOK
Plaintiff

AND
KATU YAPI, LUTHERAN HEALTH SERVICES NATIONAL SECRETARY
First Defendant

AND:
JOEL RONAPO, the incumbent Health Manager of the Morobe Regional Lutheran Health Services
Second Defendant

AND
LUTHERAN CHURCH OF PAPUA NEW GUINEA
Third Defendant

LAE:   DOWA J
21, 28 FEBRUARY 2025

PRACTICE AND PROCEDURE-Application to set aside ex parte order dismissing proceedings for want of prosecution-whether Court has jurisdiction to set aside-consideration of Order 12 Rule 8 (3) of the National Court Rules-factors to be considered -application granted.

Cases cited

Thomas Barry v Joel Luma & others (2017) SC1639
Lady Ni Cragnolini & another v Henry Leia (2023) SC2464

Counsel

S Toggo for the plaintiff
S Gor for the defendants

DECISION

1.	DOWA J:	This is a ruling on the Plaintiff's application to set aside an ex parte order made on 17th September 2024 dismissing the Plaintiff’s proceeding for want of prosecution.

Background

2.    The matter was first mentioned on the 5th of August 2024.  Mr Keindip appeared as counsel for the Defendants.  There was no appearance on the part of the Plaintiff.  The Court fixed the matter for trial on 17th September 2024.  The Court directed Defence counsel to inform the Plaintiff of the hearing date. When the matter returned for trial on 17th September 2017, both parties did not attend Court.   The matter was then dismissed for want of prosecution. Aggrieved, the Plaintiff now applies to set aside the ex parte decision.
 
	The Plaintiffs application.

3.	The Plaintiff applies, by Notice of Motion filed 10th December 2024, to set aside the decision of 17th September 2024.  The Notice of Motion is supported by the following Affidavits:

	1.  Affidavits of Maik Karu filed 10th December 2024.
	2.  Affidavit of John Demok filed 20th December 2024.

4. 	At the commencement of the hearing, the Plaintiff sought an amendment to the Notice of Motion – that the application was made under Order 12 Rule 8 of the National Court Rules, rather than Rule 35. 
5.	The relevant rule is Order 12 Rule 8 of the National Court Rules, and it reads: 

		8 Setting aside or varying judgement or order. (40/9)
(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

(2) The Court may, on terms, set aside or vary a judgement
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement 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 judgement 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 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.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.”

6.    The law on applications to set aside an ex parte order dismissing proceeding for want of prosecution is now settled by the five men panel of the Supreme Court in the case, Lady Ni Cragnolini & another v Henry Leia (2023) SC2464. That is, the National Court has the power to set aside an ex parte order dismissing proceedings for want of prosecution under Order 12 Rule 8 (3) (a) of the National Court Rules. The earlier case, Thomas Barry v Joel Luma & others (2017) SC1639 relied on by the Defendants in contesting the application is distinguishable. The Thomas Barry decision concerns applications where the merits of the case have been heard and determined. The circumstances of the present case are different, in that the matter was dismissed without determining the merits of the claim. The Court therefore has jurisdiction to hear the application under Order 12 Rule 8 (3) of the National Court Rules.

7.    The following considerations apply when determining whether to set aside an ex parte decision: 

a)	The application must be made within a reasonable time.
b)	The Applicant must show a reasonable explanation for his absence.
c)	The Applicant must have a meritorious claim.
	
a.	Application within a reasonable Time

8.	The ex parte decision dismissing the proceedings was made on 17th September 2024.  The Plaintiff filed this application on 10th December 2024, about 2 and half months later.  In my view, a reasonable time could range from within a week to 3 months, depending on the circumstances.  In the present case, it seems the Plaintiff became aware of the decision sometime in October 2024.  No explanation is given why it was not filed sooner. Nevertheless, I accept that two and a half months delay is not unreasonable.

Explanation for allowing ex parte Decision

9.	Mr Karu, lawyer for the Plaintiff, provides an explanation for the absence.  He deposes; he was not aware that the matter was listed for the call-over on 5th August 2024.  He was not in Lae that day.  The Defendants lawyer who was in Court obtained the trial date, but he did not inform him. Therefore, he was not aware that the matter was fixed for trial on 17th September 2024, so he did not attend Court on that day.

10. 	The Court accepts the explanation by counsel for the Plaintiff.  The Court records show, Mr Karu was not present in Court on 5th August 2024 when the matter was given a trial date at the request of counsel for the defendant.  Counsel for the Defendant was to inform the Plaintiff.  There is no evidence that he did that.  When the matter returned to Court for trial on 17th September 2024, there was no appearance by the parties. The counsel for the Defendant was aware of the trial date, yet he made no appearance.  The Court finds the Plaintiff had a good reason for not attending Court on that day.

Does the applicant have a meritorious claim

11. 	The final consideration is whether the Plaintiff has a meritorious claim.
The Plaintiff’s claim is for a declaration that his termination was unlawful and seeks reinstatement and payment of the loss of entitlements.  The Plaintiff had a written contract of employment for a term of three years.  He alleges that his contract was prematurely terminated.  The main issue is whether he was lawfully terminated. The Plaintiff says he was terminated by an officer who did not have authority and therefore he has merit in pursuing this action.  If he succeeds, it is open for reinstatement, and if that is not possible, he will be entitled to entitlements lost.  In the circumstances, it is not in the interest of justice to prematurely shut him out.  I find there is merit in his claim.

8.	In conclusion, I find the Plaintiff’s proceeding was dismissed for want of prosecution in his absence without determining the merits of the claim. He has provided a reasonable explanation for his absence and has demonstrated he has a meritorious claim in the pleadings and his Affidavit evidence filed 30th November 2023. For the foregoing reasons, the Court is inclined to set aside the ex parte orders of 17th September 2024.

Costs

9.	The award of cost to a party is a discretionary matter. Both parties were at fault in failing to make appearance in Court on the day of trial. There shall be no order for costs.

Orders
	
10.      The Court orders that:

1.	 The ex parte Orders of 17th September 2024 dismissing the proceeding is set aside.
2.	The matter is reinstated.
3.	Costs be in the cause.

4.	The matter is adjourned to 7th April 2025 for listing.
_______________________________________________________________
Lawyers for the plaintiff: Daniels & Associates Lawyers
Lawyers for the defendants: Gor Lawyers