DC87

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 23 OF 2004

BETWEEN

NORMAS MIRIA
Complainant

AND

STEAMSHIPS LIMITED
Defendant

Mt Hagen

S W Seneka
18 November 2004

Counsel
Complainant, In Person
Defendant, Ms J Waiwai

RULING

SENEKA: Applicant/complainant is asking the court to set aside the consent order obtained on 16th August, 2004 as it was obtained without consultation and knowledge. That matter be reinstated.

Complainant relied on his affidavit filed on 15th October, 2004. His affidavit in support only mentioned about his entry into an apprenticeship contract for four years as a trainee cook. He was engaged as of 18th March 1998 in Mt. Hagen Highlander Hotel then transferred to Melanesian Hotel in Lae. While there he was terminated on the 04th October, 2000 for allege stealing of food. From thereon he had been claiming for balance of salary at K4392.80 plus damages for breach of contract, mental distress, frustration and special damages.

On the other hand, Respondent/Defendant rely on affidavit of William Tekwie who says complainant had engaged Tamutai Lawyers to file proceedings against the defendant. Before this case was set for trial negotiation were had an agreement reached for a settlement of K5,500.00 for full settlement. Consent order was signed by both lawyers and endorsement by the court on the 17th of May, 2004. However payment is pending as complainant had instructed his lawyer not to settle.

The claim by complainant is that the consent order was obtained without consultation or knowledge. Reading of his affidavit, complainant does not disclose how or why he was not to consulted or had no knowledge of the consent order being obtained. There was nothing.

The law as pointed out by Sheehan J, in Peter Limpsy v PNG [1993] PNGLR 405 is from the Common Law and quotes at p. 406:

"when a final judgement has been passed and entered the court cannot set it aside unless a fresh action is brought for that purpose, although it has been entered by mistake."

"A court has no power to vary a consent judgment or order made previously in that court and therefore, the only means open to a party to set aside a consent judgement or order on the grounds of fraud or mistake is to bring a fresh action for that purpose."

On the same page His Honour went on to say:-

"Basically the consent order finalizes the matter between the parties. The only discretion remaining in the court after entering the consent judgement or order appear to be a power to vary or discharge such a judgement or order if it has not been finalized in the order has not been sealed."

In the case before this court the consent order was signed by defendant on the 22/07/04 and Tamutai lawyers on 06/08/04 and endorsed by this court on the 16/05/04. The only time court has discretion be revoke or vary the judgement or order is prior to endorsement. At endorsement the case is effectively closed. The alternative is to make an appeal to National Court or make a fresh case on the grounds of fraud or mistake to this court.

That being the law, I dismiss the application with cost.

In Person	Complainant
Steamship	Defendant