DC836

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC. N0. 959 OF 2007

KOLA KUMA
DIRECTOR – KOMA CONSTRUCTION LIMITED
Complainant

V

BREM MAJU (PNG) LIMITED
Defendant

Port Moresby:	Pupaka, PM

2007: 19th December

Practice & Procedure – Notice of motion – Application to set aside order striking out notice of motion seeking set aside of ex parte judgment – First notice of motion not moved – Abandonment by conduct – Second motion misconceived – In the alternative – Requirements of case precedent – Green –v- Green [1976] PNGLR 73 & ors – Even if set aside application is filed within reasonable time applicant must set out by affidavit the facts disclosing a defence on the merits – Duque – v- Paru SC510

Cases Cited:

Green and Co Pty Ltd v Green [1976] PNGLR 73
The State of PNG and Davies v Barker [1977] PNGLR 386
Barter v The State PNG & Bux [1976] PNGLR 340
George Page Pty Ltd v Malipu Bus Balakau [1982] PNGLR 140
Leo Duque v Avia Andrew Paru SC N0. 25 of 1996 (SC510)

Counsel: 

The Complainant /Respondent in person
Mr. P. Siminzi for the Defendant /Applicant

7th January 2008

PUPAKA, PM: This is the ruling in relation to a motion upon notice to set aside a strike out order terminating another notice of motion. The first notice of motion was intended to seek orders setting aside an ex parte order and consequently re-instate the case, which had by then become a completed case.

If this current application is successful the defendant would have a chance to argue the merits of its first motion later. This current motion is therefore an effort by the defendant to rescue an opportunity it lost to move to set aside a final, albeit ex parte order.

The underlying facts of the case are disclosed in the following brief outline of the history of this case. The history of the case puts matters in their proper perspective.

History

The substantive proceeding in this matter was a suit by the complainant against the defendant for a sum of K2, 633.75 plus interests and costs. The money is said to be the balance owing as a result of underpayment for security services rendered under a contract to supply security services.

This matter, in its fresh case state, was fixed for first mention on 22nd May 2007 but it is unclear as to whether it was mention on that date. It probably never got reached. On the next scheduled date, which was on 8th June 2007, both parties were present. The matter was adjourned to the 18th of June 2007. On the 18th of June 2007 the complainant alone was present and the defendant absent so the matter was adjourned to 26th June 2007. On that date the defendant again failed to appear in court.

By then there should have been a defence filed but none was filed or served. There had been an affidavit filed by the defendant previously, which raised a defence of sorts. However it had some annexed documentations which showed instances of underpayment. There were instances of overpayment too, which really was unfortunate because it made things unclear as to whether money was still owed or not. In the circumstances the complainant always had the benefit of the doubt. Therefore on 26th June 2007, when the complainant moved for summary judgment on the bases of lack of a defence, his application was granted. Not enough invoices were annexed in the defence affidavit then on file; sufficient to give the benefit of doubt to the defendant so entering judgment in favor of the complainant for the amount claimed was unavoidable.

File records show that a warrant of execution was issued in due course. It must have been successfully executed because it is now disclosed in court that there is a seized vehicle in police custody ready to be sold to meet the judgment debt. Before the vehicle was sold a notice of motion, dated 7th September 2007, was filed by the defendant seeking orders for the summary judgment to be set aside and the warrant of execution, albeit already issued and apparently executed, to be set aside as well. The motion was fixed to be heard on 24th September 2007.

However on 24th September 2007, instead of moving the motion Mr. N. Kopunye, counsel for the defendant asked the Court for time to file a defence. The complainant did not object to that but wanted any adjournment to be for no more than 2 weeks only. The presiding magistrate may not have been aware of the status of the case up to that point in time. He apparently was unaware of the pending notice of motion because he granted the adjournment sought and directed that a defence be file.

At this juncture I must note the following in relation to what I think was a seemingly strange behavior of the defendant /applicant:

First of all the defendant /applicant could not ask for time to file a defence without first securing an order setting aside the summary judgment of 26th June 2007. The 26th June order ended the whole proceedings. From that date on this case was no longer pending. It had become a completed case. The sole reason why this matter was retrieved from the archives and re-listed on 24th September 2007 was for the defendant to try to have the proceeding resurrected.

Therefore defence counsel should have moved to set aside the final order first. Without a set aside order there is no lawful right to file a defence. This failure by defence counsel was cardinal for in the circumstances it amounted to abandonment of the notice of motion. 

Consequently all these; defence counsel’s failure to move the motion on the day it was fixed to be heard, his request instead for something that could not lawfully happen, and the court granting that request; laid an unlawful foundation for all that occurred subsequently.

Secondly the complainant unconsciously agreed to the defence request. I say ‘unconsciously agreed’ because had the complainant, who obviously is an uninformed person, appreciated the illegality of the defence request he would not have conceded to the request.

Thirdly, all I can say for the presiding magistrates’ seeming blunder is that he was misled by defence counsel. Otherwise had he known or been made aware that a notice of motion seeking to nullify a final order and resurrect a completed case was still pending, I doubt if his Worship would have granted permission to the defendant to defend a ‘dead’ proceeding. The presiding magistrate’s direction to file a defence in relation to a completed case was always void at law. That direction neither nullified the summary judgment nor did it in any way resurrect the completed case. Nullifying summary judgments or resurrecting completed cases can only be properly and lawfully effected by set aside and re-instatement orders.

That said I continue with the recount of the events: The presiding magistrate adjourned the matter to 8th October 2007 for the defendant to file and serve its defence.

On the 8th of October the complainant was present in court. The defendant was absent. No defence had been filed or served in accordance with the Court’s direction of 24th of September, albeit notwithstanding for the moment that that directive was defective and faulty at law. The matter was adjourned to 18th October for mention.

I must say I cannot immediately understand why the presiding magistrate did nothing about the unmoved notice of motion on 8th of October. I can only conclude that he was still unaware of it for he did not endorse the court file in relation to it. Further it is unclear whether the presiding magistrate queried why a defence had not been filed in accordance with his previous directions. Needless to say the defence abandonment of the motion was always perceivable by the court. The complainant, with due respect to him, was of course incapable of understanding what was happening so he must be excused for not asserting anything on his part in relation to these bewildering developments.

There are no formal endorsements for 18th October on the court file, possibly indicating that there was no magistrate available that day or else the matter was otherwise not reached, which is why the clerk had the case stood over to the 15th of November 2007.

On 15th November 2007, almost predictably, the complainant appeared in court alone and the defendant absent. Therefore the notice of motion had to be struck down. To allow it to remain pending, even by default, was not improper. The complainant is entitled to enforce and enjoy the fruits of his judgment. The notice of motion, clearly abandoned as it had been, was needlessly hindering the complainant’s right to enforce a final order. The strike out order of 15th November was really a formality only as the notice of motion had been abandoned previously. It is to be noted that the strike out order was not made because the defendant was absent.

Further it must be remembered that a struck out order was not needed. It is unfortunate a "struck out" order was recorded. It may have created the impression that the notice of motion, still pending to that point in time, was being terminated by the Court on 15th November, when that was actually not the case. As I said, when the defendant failed to prosecute the notice of motion on 24th September, by its conduct it abandoned the notice of motion. And from that point on no issues were pending.

This brings things to the current. I understand it is that strike out order of this Court dated 15th November 2007 the defendant wishes to have set aside now. To do that it has filed another motion upon notice dated the 11th of December 2007. It is this ‘motion to reinstate motion’ that is before this Court for ruling.
 
Is a motion to reinstate an abandoned motion proper?

In the circumstances the answer is no. It is not proper. In light of the history of this case and the defendant’s actions any application to reinstate or resurrect an abandoned notice of motion, especially in the way it is being done now, is misconceived.

In his affidavit dated 11th December 2007 Mr. Siminzi, the current defence counsel, sets out reasons why the initial notice of motion was not moved. He refers to events and dates after the threshold date of 24th September 2007, the day the first motion was abandoned. However I do not wish to deal with the merits of the reasons advanced. The case’s history I have set out above and the explanation provided are the reason why. Nevertheless, in addition to that, I wish to point out, for whatever it is worth, that it is not correct to say that "On 24th September 2007 by consent our application was adjourned to 8th October…" as Mr. Siminzi asserts in his affidavit.

The court file endorsement shows that Mr. Kopunye, who was counsel for the defendant /applicant at the time, sought "time to file our defence". It is clear Mr. Kopunye did that without moving his motion or seeking adjournment of the same. The fact that the complainant did not object to the request cannot assist the defendant /applicant in any way. I have already alluded to the reasons why. The fact is that the defendant /applicant did not move its motion to reinstate. Instead it, through counsel, made an absurd application to "seek time to file our defence". Clearly the presiding magistrate was unaware of the business for 24th September 2007. The defence counsel should have alert him to it but instead made that absurd application. That resulted in the presiding magistrate granting an erroneous order, which actually set the foundation for further misunderstandings that followed later.

I am of the view that a defence cannot be filed without there being orders for reinstatement of a completed case first. This means, in this case, all activities including appearances or non appearances of the parties, after 24th September 2007, were on the bases of an unlawful foundation. The unlawful foundation is the erroneous direction given by the court on 24th September to file a defence in the ‘dead’ case.

There is also no explanation from Mr. Siminzi now as to why the defence that his colleague Mr. Kopunye obtained permission to file on 24th September, has never been filed. Not that it mattered much in the circumstances. However it does go to show what could happen when file briefs get transferred from lawyer to lawyer in the same law firm without clear instructions.

I must note for the record that all these, i.e., all the matters and events and consequences I have alluded to above, became apparent to me before this current motion, in its present form and context, was formally moved on 19th December 2007. Therefore before counsel stood to move the motion I tried to steer him into a position where he might appreciate the absurd situation his client was in as a result of what transpired on 24th September 2007 and the subsequent events, including the "struck out" order by this Court on 15th November 2007. Perceiving that there may have been some misunderstandings and mix ups due to the apparent movement of the case brief between lawyers in the defence team I attempted to draw counsel’s attention to the need to adopt a different approach, before he committed himself to move the motion on its merits. For some reason counsel took exception to the Court’s intrusion, notwithstanding that it was well intentioned. That quickly put paid to any Court intention. I now realize that it was just as well because in fact the Court’s intrusion, albeit with good intention, was always unfair to the complainant. In any event counsel’s clear wish was to move his motion dated 11th December on its merits. Therefore he was afforded unhindered opportunity to do so and he did just that.

In the end, having heard the motion on its merits and having considered all things, for all the foregoing, I rule that the defence application, i.e., the notice of motion to reinstate a motion, particularly an abandoned notice of motion, is misconceived.

This ruling on its own should finally determine the fate of the defendant’s application. Nevertheless I need to refer to and discuss the requirements of the case of Green –v- Green [1976] PNGLR 73 as its requirement are mandatory in this type of application. There were other, later cases; including the cases of Barter –v- The Government of Papua New Guinea and Bux [1976] PNGLR 340; George Page Pty Ltd –v- Malipu Bus Balakau [1982] PNGLR 140, which adopted and followed the principles in Green –v- Green (supra). The principles expounded in these cases are binding upon the District Court.

Requirements of Green –v- Green & other precedents

As I said it is not strictly necessary to determine if the requirements in the precedent cases (supra) are met or present. In fact, in the light of the forgoing, deciding whether the requirements have been met is unnecessary. Nevertheless the defendant’s application has been constructed and formulated in such a way that considering the application on its merits must include whether the requirements of the binding precedents are met so I must consider the requirements, even if it is for the purposes of completeness only.

That said the precedents require that anyone wishing to set aside a regularly entered ex parte order must come to court within reasonable time; must provide a good explanation as to why the ex parte order was allowed to be entered; and disclose by affidavit evidence a defence on the merits.

In this case, given its surrounding circumstances, it is unnecessary to decide whether or not the applicant has come to court within reasonable time or has provided a good explanation as to why it allowed the ex parte order to be entered in the first place. However it is not excused from disclosing, by affidavit evidence, a defence on the merits. This requirement is the pivotal of the three requirements. Without showing a defence known in law an applicant cannot succeed in his or her quest to have a case reinstated for in the end there really would be no purpose in the reinstatement.

The tenor of the language of the precedents is that the odds are stacked against an applicant who does not clearly disclose up front by affidavit evidence a defence on the merits. Merely attaching a proposed defence or relying on a defence already filed does not adequately comply with the requirements of the precedents.

In Leo Duque –v- Avia Andrew Paru SC510 the Supreme Court comprehensively stated what may and what may not amount to disclosing a defence on the merits in applications such as this. The following passage in that case is worth quoting in full in order for the full context of the requirements to be properly appreciated.

"The appellant relies on the affidavit of Mr. George T Yapao who was the new lawyer for the appellant. He made the application to set aside judgment. He annexed a proposed defence and simply deposed in paragraph 7 of his affidavit the following: "Upon instructions I know and believe that if this judgment is set aside and the matter is allowed to proceed to trial proper the Defendant has a good prospect of success."

Counsel for the respondent has submitted that this affidavit failed to provide any material facts giving rise to a defence on the merits.

The appellant himself also filed an affidavit in support of the application. Counsel for the respondent has submitted that this affidavit also failed to raise any facts, which would give rise to a defence on the merits.

On the other hand, counsel for the appellant has submitted that it is sufficient for the lawyer to simply make reference to his instructions and simply express a legal opinion that there is a defence on the merits.

It is clear to us from the authorities we have set out earlier in our judgment and subsequent cases in this jurisdiction that as a matter of practice, an applicant must in an affidavit state material facts showing a defence on the merits.

In the present case it was the responsibility of the appellant to state material facts showing a defence on the merits. As we have indicated before, the appellant filed an affidavit setting out the reasons why judgment was entered but he failed to state any facts, which shows any defence on the merits. A proposed defence prepared by the lawyer is not capable of serving this purpose. The expression of opinion by the lawyer that there is good prospect of success can only amount to a legal opinion. It is not capable of raising the material facts". 

(Emphasis added)

Mr. Siminzi’s affidavit dated 11th December 2007, filed for the purposes of this application, in paragraph 10 thereof, refers to the existence of a defence on the merits without stating the substance of it. It also alludes to the relevance of two other affidavits filed before his own. It is said that those other affidavits contain assertions that disclose the defendant’s defence on the merit.

One of the two affidavits referred to by Mr. Siminzi is the affidavit of Andrew Maino. It was sworn on 4th September 2007 and filed on 7th September 2007. It was obviously filed for the purposes of the Notice of Motion that was abandoned and not for the current purpose. Nevertheless I consider the intended purpose of the affidavit to be almost the same as the current purpose and so I have considered it as requested by Mr. Siminzi. Unfortunately that affidavit discloses nothing capable of being construed as a defence on the merits. It merely says that the defendant has a defence on the merits, which of course is not what the precedents require.

The other affidavit asked to be considered for the current purpose is the affidavit of Christine Griffin. It is dated 21st May 2007. There are two reasons why this Court cannot accept or rely on the contents of that affidavit:

Firstly Christine Griffin’s affidavit was filed well before the summary /ex parte judgment was entered. It seems to have been filed in preparation for a contested hearing. It was not filed in aid of any application of the current kind nor was it intended to serve the requirements in Green –v- Green (supra). Therefore this Court should not accept or rely on this affidavit for the current purposes.

Secondly there is another, more important, reason why Christine Griffin’s affidavit cannot be considered. This same affidavit was actually considered, for whatever it was worth, at the time summary judgment was entered for the complainant on 26th June 2007. The court file endorsement shows that this Court noted the fact that a defence of sorts was raised by Christine Griffin’s affidavit. The endorsements also note the fact that the affidavit showed that payment was effected at a lower rate. The implication is that that affidavit was considered by this same Court for the purposes of entering summary judgment against the defendant. It cannot reconsider the same affidavit for the purposes of this current application, which is an attempt to reverse that earlier judgment.

I must say I am unable to fathom just why the defendant /applicant has not gotten Christine Griffin to redraft or redo her affidavit, especially so as to fully disclose the defence on merits that the defendant reckons is contained in her affidavit. That way the deponent would not only comply with the requirements of the precedents by clearly attesting to facts that disclose a defence on the merits but also force this Court to reconsider evidence that it already took into account for the purpose of making an order detrimental to the defendant /applicant’s interests.

In the end the effect of all these further discussions is that no defence on the merits is disclosed in support of the application. Therefore even if this application were not misconceived as I already ruled to be, I would also dismiss it on the bases that no defence on the merits is disclosed as required by the precedents.

Ergo the defendant /applicant’s notice of motion dated 11th December is dismissed with costs to the complainant respondent.

_____________________________________________________

The Complainant /Respondent in person
Ninai Lawyers for the Defendant /Applicant