Yangukali v Sikin [2022] PGSC 26; SC2223 (25 February 2022)

SC2223

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 4 OF 2020

LIPU YANGUKALI
Applicant

V

GEORGE SIKIN
Respondent

Waigani: Cannings J, Anis J, Miviri J
2022: 22^nd, 25^th February

PRACTICE AND PROCEDURE – ex parte order by National Court, dismissing proceedings for failure to comply with statutory requirements – whether party aggrieved by dismissal can apply to National Court to set aside order made in their absence – whether only option is to appeal to Supreme Court against order of dismissal – National Court Rules, Order 12, Rule 8 (setting aside or varying judgment or order).

The applicant sought review by the Supreme Court of the decision of the National Court to refuse his motion under O 12 r 8 of the National Court Rules to set aside a previous decision of the National Court, made in his absence, which dismissed an appeal he had lodged against an order of the District Court. The National Court dismissed the appeal on the ground that the applicant failed to comply with s 227 of the District Courts Act. The applicant’s motion to set aside the previous decision was also heard in his absence due, he claims, to his not being given notice of the hearing. The respondent was present and contended that the motion should be dismissed. The National Court upheld that contention and dismissed the motion as an abuse of process, on the basis that the only option for a party aggrieved by an order of dismissal of proceedings was to lodge an appeal or apply for review to the Supreme Court. The applicant argued three grounds of review: (1) the primary Judge erred in law by ruling that O 12 r 8(3) did not authorise the motion to set aside the previous decision; (2) the primary Judge erred in law in the previous decision by finding that the failure to comply with s 227 of the District Courts Act meant that the proceedings were an abuse of process; (3) that the applicant was denied natural justice due to his not being given notice of the hearing of his motion to set aside the previous decision, resulting in it being heard and determined in his absence.

Held:

(1) Order 12, rule 8(3) of the National Court Rules allows a party aggrieved by summary dismissal of proceedings to apply to the National Court to set aside the order for summary dismissal, provided that the order has been made in the absence of that party. The primary Judge erred by refusing the applicant’s motion on the basis that it was an abuse of process and that the applicant’s only avenue of redress was to appeal or apply for review to the Supreme Court.

(2) Section 227 of the District Courts Act provides that if an appellant does not enter an appeal within 40 days after instituting it, the District Court order being appealed against may be enforced. It does not provide a ground on which an appeal from the District Court can be summarily dismissed. An error of law occurred in the decision to dismiss the appeal due to failure to comply with s 227.

(3) The applicant’s motion to set aside the earlier decision of the National Court was heard and determined in his absence in circumstances where he was not notified of the hearing of the motion and deprived of the opportunity to move it. This was a denial of natural justice.

(4) All grounds of review upheld. Application granted. Orders of National Court set aside. National Court proceedings reinstated and shall be subject to a directions hearing. Costs to applicant.

Case Cited

The following case is cited in the judgment:

Inugu v Maru (2019) SC1873

Counsel

T T Yamarhai, for the Applicant
G Sikin, the Respondent, In person

25^th February, 2022

1. BY THE COURT: The applicant, Lipu Yangukali, applies to the Supreme Court for review of the decision of the National Court of 2 December 2019 at Wabag to refuse his motion under O 12 r 8 of the National Court Rules to set aside a previous decision of the National Court, made on 16 July 2019 in his absence, which dismissed an appeal he had lodged against an order of the Wabag District Court. The National Court had dismissed the appeal on the ground that the applicant failed to comply with s 227 of the District Courts Act.

2. The applicant’s motion to set aside the 16 July 2019 decision was also heard in his absence due, he claims, to his not being given notice of the hearing. The respondent George Sikin’s lawyer, Mr Yallon, was present when the applicant’s motion was mentioned on 2 December 2019 and contended that the motion should be dismissed. The National Court upheld that contention and dismissed the motion as an abuse of process, on the basis that the only option for a party aggrieved by dismissal of proceedings was to lodge an appeal or apply for review to the Supreme Court.

3. The applicant argued three grounds of review:

(1) the primary Judge erred in law by ruling that O 12 r 8(3) did not authorise the motion to set aside the previous decision;

(2) the primary Judge erred in law in the previous decision by finding that the failure to comply with s 227 of the District Courts Act meant that the proceedings were an abuse of process;

(3) the applicant was denied natural justice due to his not being given notice of the hearing of his motion to set aside the previous decision, resulting in his motion being heard and determined in his absence.

GROUND 1: NATIONAL COURT RULES, ORDER 12, RULE 8(3)

4. Order 12, rule 8(3) (setting aside or varying judgement or order) states:

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.

5. It has been a vexed issue over many years whether this rule allows a party aggrieved by summary dismissal of proceedings to apply to the National Court to set aside the order for summary dismissal, or whether the only option is to appeal or apply for review before the Supreme Court. We consider that the issue has been resolved by the decision of the Supreme Court (Kirriwom J, Yagi J, Collier J) in Inugu v Maru (2019) SC1873: if an order is made in the absence of a party, it may be set aside by the National Court pursuant to O 12, r 8(3) irrespective of whether the order is interlocutory or final (such as an order for summary dismissal).

6. 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.

7. The important point is that if a final order is made in the absence of a party, dismissing proceedings for want of prosecution, it is not necessary for the aggrieved party to go to the Supreme Court on appeal or review. The aggrieved party may apply under O 12, r 8(3) to the National Court seeking an order to set aside the order for dismissal made in their absence. In taking the opposite view, the learned primary Judge fell into error. The first ground of review is upheld.

GROUND 2: DISTRICT COURTS ACT, SECTION 227

8. In making the order of 16 July 2019 for dismissal of the proceedings, the primary Judge relied on s 227 of the District Courts Act, which states:

If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

9. The order was consistent with the terms of the respondent’s notice of motion filed 18 June 2019, which sought dismissal of the entire proceedings pursuant to O 12 r 1 of the National Court Rules and s 227 of the District Courts Act.

10. We consider that s 227 simply provides that if an appellant does not enter an appeal within 40 days after instituting it, the District Court order being appealed against may be enforced. It does not provide a ground on which an appeal from the District Court can be summarily dismissed. There are provisions in the National Court Rules (eg O 10 r 9A(15), O 18 r 12(4)) which provide a clear jurisdictional basis for dismissing an appeal from a District Court for want of prosecution. Such provisions ought to have been invoked here. They were not, instead an irrelevant provision of the District Courts Act was relied on.

11. An error of law occurred in the decision to dismiss the appeal due to failure to comply with s 227. Ground 2 of the review is upheld.

GROUND 3: NATURAL JUSTICE

12. There is ample material before us to show that the applicant’s motion filed on 17 July 2019 (just one day after the order of dismissal of 16 July 2019) was heard in most peculiar circumstances. The applicant was given no notice that his motion was being heard on 2 December 2019. It was mentioned during the course of a callover. The respondent’s lawyer, Mr Yallon, was in court and said that he was ready to deal with the motion and the primary Judge allowed him to argue against it, even though it had not been moved. The primary Judge upheld the motion in a brief ex tempore ruling.

13. We consider that this was irregular and unfair to the applicant. He was deprived of the opportunity to move his motion. This was a denial of natural justice. Ground 3 of the review is upheld.

CONCLUSION

14. The application for review will be granted. The order of the National Court of 2 December 2019 will be set aside. What about the order of 16 July 2019, which dismissed the National Court proceedings based on s 227 of the District Courts Act? We have enough material before us to also set it aside, as it was made in error. We rely on s 16 of the Supreme Court Act in doing so. The National Court proceedings, CIA No 82 of 2018, will be reinstated and should proceed to hearing without further delay. Costs will follow the event.

ORDER

1. The application to review the order of the National Court of 2 December 2019 in CIA No 82 of 2018, filed 27 March 2020, is granted.
   
2. The order of the National Court of 2 December 2019 in CIA No 82 of 2018 is set aside.
   
3. The order of the National Court of 16 July 2019 in CIA No 82 of 2018 is set aside.
   
4. CIA No 82 of 2018 is reinstated forthwith and shall be subject of a directions hearing as soon as is practicable.
   
5. The respondent shall pay the applicant’s costs of the application on a party-party basis which shall if not agreed be taxed.

_____________________________________________________________
Supasonixs & Alu Lawyers: Lawyers for the Applicant
Yallon & Associates Lawyers: Lawyers for the Respondent