Credit Corporation Pty Ltd v Jimendi Enterprises Pty Ltd [1991] PGSC 18; SC419 (10 December 1991)

Unreported Supreme Court Decisions

SC419

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCA NO. 3 OF 1989
BETWEEN: CREDIT CORPORATION (PNG) LIMITED
APPELLANT
AND: JIMENDI ENTERPRISES PTY LIMITED
RESPONDENT

Waigani

Los Hinchliffe Salika JJ
28 November 1991
10 December 1991

PRACTICE - Appeal - Ex parte Order - Setting aside - Notice to be given - Unfairness and injustice caused.

Appeal from an ex parte order. Proceeding by way of Appeal to the Supreme Court. Ex parte order caused unfairness and injustice. Appellant not served.

Appeal

This was an appeal against an ex parte order of the National Court.

Counsel

J Patterson, for the appellant

S Sitapai, for the respondent

Cur adv vult

10 December 1991

LOS HINCHLIFFE SALIKA JJ: This is an Appeal from an ex parte Order of Amet J on the 30th December, 1988. We would have thought that the proper procedure would have been to make application in the National Court to have the said ex parte Order set aside but for reasons unknown to us the matter has proceeded by way of Appeal to the Supreme Court and there has been no objection from the respondent. We make no further comment.

The appellant states that it should have been notified of the said proceedings before Amet J. on the 30th December, 1988. That argument is certainly supported by the National Court Rules - O.4 r.38 which provides:

“38. Notice necessary

(1) Subject to sub-rule (2) of this Rule, a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings.

(2) A person may move the Court without previously filing or serving notice of the motion:

(a) where the preparation of the notice, or the filing or service (as the case may be) of notice would cause undue delay or other mischief to the applicant;

(b) where each party interested, other than the applicant, consents to the order;

(c) where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service (as the case may be) of notice of the motion; or

(d) where the Court dispenses with the requirements of sub-rule (1) of this Rule.

(3) Except with the leave of the Court, and subject to these Rules, a motion shall be moved only on a date fixed by the Court for the hearing of motions.”

The appellant has submitted that there was no apparent reason for the matter to proceed on an ex parte basis and therefore not only were the National Court Rules not complied with but unfairness and injustice has arisen because of the matter being heard ex parte.

The appellant is the third defendant in the National Court matter and there is nothing to suggest that is is not an “interested party.” We are not assisted by the trial Judge’s notes (p.56 of the Appeal Book) as they give no indication at all as to why the motion proceeded ex parte. It is not clear as to whether or not the question was even raised. The notes read as follows:

“W.S. 1026/1988 30/11/88

Credit Corporation (PNG) Ltd. v. Jimendi Enterprises Pty. Ltd.

Mr. Sitapai for Plaintiff

O.13.4.11

Order in existence - 21/12/88

Order

Granted per terms of draft amended order signed today and put on file.”

From what has arisen out of this Appeal it is fairly obvious that if the appellant had been served and appeared on the said motion and presented its side of the argument then it is most probable that the learned trial Judge would have made a different Order. The appellant was denied that opportunity for no apparent reason.

If the trial Judge was of the opinion that, in accordance with O.4.r. 38(2) of the said Rules, it was not necessary to serve the appellant (the third defendant) then we are of the view that he should have recorded his reason quite clearly in his note book. That was not done. As we have said, we are not sure whether the ex parte question was even raised.

We agree with Mr. Patterson, who appeared for the appellant, when he said, “It is a fundamental rule of natural justice, as required in the Constitution, that proceedings should be fair. Proceedings are not fair when one or more parties have not been given notice or been heard. Halsbury’s Lays of England. Volume 1, 4th Edition. paragraphs 75 and 76.”

We make the following orders:

1. Appeal upheld

2. Order of Amet J. of the 30th December, 1988 be set aside.

Orders accordingly.

Lawyers for the appellant: Henao Cunningham & Priestly

Lawyers for the respondent: Karingu & Sitapai