[1999] PNGLR 89

PAPUA NEW GUINEA

[national court of justice]

JUAN JEFFREY

V

SIAPU YAPO

waigani: kapi dcj
13, 23 April 1999

inferior courts – District Courts – Appeal – District Courts Act, s 25 – Proper principles for setting aside an ex parte order – Form of proceedings - Whether error in form results in substantial miscarriage of justice.

Facts

The respondent, through an ex parte hearing before a District Court obtained an order for compensation against the appellant. The proceedings, whilst being a civil claim, were commenced by way of an information. The appellant’s application to set aside the ex parte order was refused.

Held

1.	That the principles enunciated in respect of the discretion to set aside ex parte judgments under the National Court Rules are applicable to an application to set aside an ex parte order under s 25 of the District Court Act. Community Development Pty Ltd v Peter Karai [1994] PNGLR 463 followed.

2.	In view of the above and on record, the learned magistrate did not err in law in refusing the respondent’s application to set aside the ex parte order.

3.	The use of a wrong form in the proceedings before the District Court amounted to an error in form only and that by itself did not render the whole of these proceedings incompetent and that no substantial miscarriage of justice occurred.

4.	Appeal dismissed.

Papua New Guinea cases cited

Community Development Pty Ltd v Peter Karai [1994] PNGLR 463.
Fleming v Dau [1983] PNGLR 330 at 340.
Green & Company Pty Ltd v Green [1976] PNGLR 73.

Other case cited

Ratcliffe v Evans [1892] 2 QB 524 at 527.

Counsel

R Bradshaw, for the appellant.
D Kakaraya, for the respondent.

23 April 1999

Kapi dcj. This is an appeal from a decision of the District Court at Porgera. The proceeding in the District Court was commenced by way of an information. A summons upon information was issued to the appellant to appear before the District Court. The respondent claimed compensation. It is not necessary to set out the full details of the cause of action, as it is not an issue. According to counsel for the respondent, the claim is based on an action in law where a person maliciously makes false statements in respect of another person with the result that other persons are induced to act in a manner which causes loss to the person (Ratcliffe v Evans [1892] 2 QB 524 at 527). It is a civil claim.

There is no dispute that the appellant was served with the summons. The day of appearance in Court is a little confusing in that the summons makes reference to 24th March as well as 4th March 1997. The Court record shows that the matter was first called on the 4th March 1997. The respondent was present but the appellant is recorded as not present. The matter was adjourned to 19th March 1997 for mention. On the 19th March 1997, the respondent was present but the appellant was recorded as not present. At this hearing, the Court received proof of service of the summons. The Court then fixed the matter for ex-parte hearing for 9th April 1997. On the 9th April 1997, the matter proceeded ex-parte and the Court found in favour of the respondent and ordered the appellant to pay K4,000.00 as compensation to the respondent.

The appellant through his lawyers applied to set aside the ex-parte order pursuant to s 25 of the District Court Act Ch 40. The Court heard the application on the 29th April 1997 and dismissed it. The appellant has appealed against this decision.

The District Court provided the following reasons for decision:

"This case is an application by the defendant/applicant to set aside the ex-parte order issued on the 9th April, 1997.

After considering the submissions by the applicant’s lawyer, I find that:

1.	There is no incompetency on the proceedings by the complainant/respondent as the case had been properly instituted by virtue of District Court Act Ch 40, Sections 28, 35, 41 and Section 43.

2.	There is no defence filed and to date there is no submissions made to show the Court that there is a good defence.

3.	There is no reason for non-appearance given by the applicant/defendant

4.	The affidavit filed and served in Court are totally false and aimed at destroying the trust and competency of the Porgera District Court and its staff.

Therefore, the ground of such application could not succeed."

Counsel for the appellant submits that the District Court erred in his ruling on three grounds:

1.	That the proceedings were incompetent from the beginning because a civil matter was commenced by way of an information.

2.	That a party to the proceedings is not required to attend Court on all the mentioned dates.

3.	That there is no requirement under the District Court Act to require the party applying to set aside a judgment to file a defence or to show a defence on the merits.

Counsel for the respondent submits that the principles for setting aside ex-parte judgment in the National Court are applicable to application to set aside judgment in the District Court. He submits that in accordance with these principles, an applicant is required to explain why the judgment was allowed to be made ex-parte and that he must show a defence on the merits. He relied upon Green & Company Pty Ltd v Green [1976] PNGLR 73.

The question of the proper principles that should apply in an application to set aside an ex-parte order under s 25 of the District Court Act was considered in Community Development Pty Ltd v Peter Karai [1994] PNGLR 463. The facts are similar to the present case. The matter proceeded to hearing in absence of the defendant. The defendant then made application to set aside the ex-parte order. Counsel for the defendant argued that the principles which govern application to set aside judgment in the National Court were not applicable to an application under s 25 of the District Court Act. The issue was argued fully and the Court ruled:

"The District Court when applying s 25, have consistently and regularly adopted the National Court decisions in Green & Co Pty Ltd v Green and Barker v PNG (supra). The National Court Rules and the District Court Act are two distinct and different pieces of legislation with different provisions. As I have quoted above, they have different but similar provisions relating to the setting aside of ex-parte default judgments. As was stated by Kidu CJ in Fleming v Dau [1983] PNGLR 330 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 on Barker v PNG, 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 principles of justice involved, I think it was quite proper for the District Court to adopt the procedures and principles in the Barker ruling.

I cannot find any error on the part of the learned magistrate. I think he was entitled to follow the National Court decisions which have been consistently followed in the application of s 25."

I agree that the principles enunciated in respect of the discretion to set aside judgment under the National Court Rules are applicable to s 25 of the District Court Act. I find that the learned trial magistrate did not err in applying those principles in the present case.

The appellant relied on two affidavits in the District Court; affidavit of Moses Bowie sworn 25 April 1997 and affidavit of Patrick Ga’a sworn 25 April 1997. The learned magistrate rejected these affidavits on the ground that they contained false statements. I do not find it necessary to determine this issue. The question is whether there is any evidence to explain why the matter was dealt with ex-parte and whether there is any evidence of a defence on the merits. There is some suggestion in the affidavit of Patrick Ga’a that there may have been some confusion over the first return date of the summons. However, Mr Ga’a was informed on the 24 March that the matter was adjourned to the 9 April 1997. There is no explanation why the appellant or any of his representatives did not attend on the 9 April 1997. 

None of the affidavits relied upon show any defence on the merits. I find that the learned magistrate did not err in dismissing the application.

The only point that remains to be dealt with is the argument that the learned magistrate erred in not setting aside the judgment on the basis that the proceedings were incompetent in that this was a civil claim, which was laid using the wrong form.

This is an error in form only. The question is whether the use of the wrong form nullified the rest of the proceedings. In so far as this is an error for want of form, it does not necessarily render the whole proceedings incompetent. This was an error, which was capable of correction by the power of amendment under s 138 of the District Court Act. If this matter were raised at the hearing, the error would have been amended to comply with the proper form. That would have been the end of this issue. I note from the record of the Court that the learned magistrate treated the whole proceedings as a civil matter. The learned magistrate was under no illusion that he was dealing with a civil complaint. I do not consider that any substantial miscarriage of justice resulted in the fact that the summons was issued upon an information rather than upon a complaint. I am able to come to this conclusion by having regard to the spirit of other provisions of the District Court Act (see ss, 163, 230 (2), 240 and 245). These provisions are not directly applicable to the present case but their effect is that an error in form does not necessarily affect the substance of the proceedings.

In the result I would dismiss the appeal with costs to the respondent.

Lawyers for the appellant: Blake Dawson Waldron.
Lawyers for the respondent: Carter Newell.