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Willie v Lin [2007] PGDC 174; DC788 (17 December 2007)

DC788

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

GFC NO 749 OF 2007

BETWEEN

HELLEN WILLIE
COMPLAINANT

AND

MICHAEL LIN TRADING AS RICKSHAW NOODLE
BAR RESTURANT
DEFENDANT

Port Moresby: C BIDAR, PM
2007: 17 November

DISTRICT COURT - Practice and Procedures - Application by Notice of Motion to set aside an ex parte order of this court made on 29 August 2007 – DISTRICT COURT ACT s25

Cases Cited

There are no cases cited in the Judgement.

Counsel

Defendant/Applicant appeared in person
Complainant/Respondent appeared in person

17 December 2007

RULING

BIDAR C PM: On the 8 October 2007, the defendant Michael Lin, filed a Notice of Motion which sought the following orders:

1. The Court order entered ex parte by the Honourable Court on 29 August 2007, against the defendant be set aside.
   
2. The substantive matter involving both parties named herein be fixed for proper hearing.
   
3. Costs be in the cause
   
4. Any further or other orders as the court deems fit."
   

2. To understand the orders sought it is proper to state a brief background to these proceedings.

3. On or about 12 April 2007, complainant Helen Willie filed a complaint and Summons to a Person Upon Complaint against the defendant claiming damages for negligence in preparation and supply of food. Complainant alleged that she consumed sausage flour, which she bought from the defendant’s shop and suffered abdominal pain and acute diarrhoea with tightness.

4. The matter was adjourned several times and was fixed for hearing on 29 August 2007.

5. On the date fixed for trial, the complainant appeared in person. The defendant did not appear. The trial proceeded despite non-appearance by the Defendant. After the trial, the defendant was found liable and damages were assessed at One thousand five hundred kina (K1, 500.00).

6. The principles governing setting aside of ex parte, judgments are well established in our jurisdiction. Basically, the principles are that, an application should be made promptly. There should be reasonable explanation by affidavit as to why the judgment or orders were entered ex parte, and that there should be affidavit material stating that there is a defence on merits.

7. Having heard the defendant and reading the affidavit material he deposed to and filed herein, I am satisfied that the application to set aside was made promptly. I am unable to be satisfied as to the reasons why the defendant did not show up on the trial date. Furthermore, the defendant has not shown by affidavit that he has a meritorious defence in respect to the claim by the complainant.

8. There is nothing, which amounts to a defence, let alone a meritorious one.

9. In all the circumstances, I refuse the defendant’s application to set aside. I dismiss the application. Parties pay their own costs.

Respondent/Complainant in person
Applicant/Defendant in person