DC455

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 155 OF 1999

BETWEEN

Susan Kuriti
Complainant

V

Teman Kuriti
Defendant

Mr. Ioy As. Geita, Magistrate
2000: May 17

Practice and Procedure - District Courts Act 25 - Setting aside Ex parte Judgments -Application to set aside Ex parte Order refused because no defence was shown on the merits.

Practice and Procedure - Application to set aside Ex parte Order - no reasonable explanation given why Judgement was allowed to go by de/emit - the application was not made promptly and within a reasonable time - Application dismissed.

Cases Cited
Barkar Vs. The Government of PNG and Davis and Bux [1976] PNGLR 340 
Green & Com. Pty Ltd Vs. Green [1976] PNGLR 73.

Counsel
Mr. Teman Kuriti in person Respondent not present

17th May 2000

NOTICE OF MOTION

EX PARTE APPLICATION.

This is an application by the Applicant seeking to set aside an Ex parte Judgement entered in favour of the Respondent by the Port Moresby District Court on 9th June 1999. In a Supporting Affidavit the Applicant explains that the Respondent moved out of their matrimonial home at her own accord in early 1997. In the cause of time she restrained the Applicant from entering what he calls his property as he claims to be the legal owner of the property.

He claims that the Respondent took out a Court Order, now the subject of appeal and restrained the Applicant after he had gone home to Mount Hagen alone to attend to his mother's funeral. No dates were given as to when that event took place. Those reasons were basically what was relied upon by the applicant in his attempt to set aside or dismiss the Ex parte Judgement entered against him.

Section 25 District Courts Act provides that a conviction or order where one party does not appear may be set aside on the application of the Court on such terms as to costs or otherwise as a Court thinks just and the Court, on service on the other party, and on such reasonable notice as the Court directs may proceed to a hearing.

The Affidavit in support of the application to set aside basically stated that the Respondent move out of the matrimonial home at her own accord and that the Restraining Order was obtained during his absence in Mt Hagen to attend to his mother's funeral. The applicant filed his Affidavit and Notice of Motion on 16th May 2000. The delay of 11 months in moving to have the Judgement set aside is not considered to be within the sphere of "within a reasonable time." The death of his mother was said to be the reason for the long delay however I did not consider that explanation to be a good enough reason.

Furthermore, the Support affidavit did not show any defence on the merits nor were they sufficiently particularised so as to enable this Court to be satisfied that it is reasonable that the particular defence should be raised.

Having considered the precedents for setting aside Ex parte Judgement by National Court the application before me is found wanting. The leading cases being Barkar Vs. The Government of PNG and Davis and Bux [1976] PNGLR 340 and Green & Com. Pty Ltd Vs. Green [1976] PNGLR 73.

The precedent show that three (3) conditions have to be met for the setting aside of a regularly entered Default Judgement. They were as follows (and I quote here from Page 341 of the [1976] Papua New Guinea Law Reports):-

1. There must be an affidavit stating facts showing on a defence on the merits.

2. There must be a reasonable explanation why judgement was allowed to go by default; and

3. The Application must be made promptly and within a reasonable time. "

These were the three 3 grounds that have been followed on numerous occasions by the National Court in considering applications under the National Court Rules to set aside a default judgement regularly entered.

It will be noted the similarity of this rule to the wording of Section 25 of the District Court Act, which provides an Order or conviction, made, may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just.

I am indebted to the then Doherty J in her unreported judgement No.1260 Commodity Development Pty Ltd Vs. Peter Koval of 11th February 1994. In that case she said and I quote:--

"The District Courts when apply Section 25 have consistently and regularly adopted the National Court decisions in Green & Com Pty Ltd, Vs. Green and Barker Vs. The Government of Papua New Guinea and Others, (supra). The National Court rules and the District Court are two (2) distinct and different pieces of legislation with different provisions and, I have quoted above, have different but similar provisions relating to the setting aside of ex parte default judgments. As was stated by the late Chief Justice in Fleming Vs. Gwale Dau (1983) PNGLR 339 at 340 where Magistrates are bound by decisions of the National Court and the Supreme Court they must adhere to any directions given by these Courts. I have not been referred to any precedent directing the District Court to follow the ruling in Barker Vs. State of Papua New Guinea and Others *supra) nor have I been able to find such a ruling, but given the similarity in the National Court rules and S.25 District Court Act together with the same principals in the Barker Ruling. "

Having placed the Applicants grounds to set aside the judgement against the three (3) conditions or precedents, I am not convinced that they have been successfully made out. The end result is that the application is dismissed.