N2756
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 563 OF 2004

ANDREW KEROWA
First Plaintiff

SECURIMAX SECURITY LIMITED
Second Plaintiff

V

GILBERT SOM KEKE
Defendant

MT HAGEN: CANNINGS J
5 NOVEMBER, 21 DECEMBER 2004

RULING ON MOTION

Practice and procedure – interim orders and injunctions – application to set aside order granting extension of time to appeal against decision of District Court and stay decision of District Court – power of National Court to set aside its own interim orders – allegation that defendant, an officer of the National Court, was in a conflict of interests and able to intercept appeal documents – allegation that appeal documents had already been lodged – considerations to take into account when determining such applications – conduct of parties – need for lawyers to act diligently and query or challenge delays in a registry or apply expeditiously for an extension of time to appeal. 

Case cited:

Ekepa v Gaupe (2004) N2694

Counsel:

Mr C Jaminan for the plaintiffs
Mr B Aipe for the defendant

CANNINGS J: 

INTRODUCTION

This is an application by the defendant to set aside an order made in favour of the plaintiffs. The order granted them leave to appeal out of time against a decision of the District Court and stayed the enforcement of that decision.
 
BACKGROUND 

These proceedings arise from an incident at the Highlander Hotel, Mt Hagen. 

On 21 April 2002 the defendant, Gilbert Som Keke, had an altercation with the 1st plaintiff, Andrew Kerowa, who was a security guard at the hotel. The 1st plaintiff was employed by the 2nd plaintiff, Securimax Security Ltd. The defendant was injured in the incident. He sued the plaintiffs in the District Court for assault. 

A trial was set down for 3 July 2003. There was no appearance by the plaintiffs, so the magistrate, Mr S W Seneka PM, heard the matter ex parte. 

On 22 August 2003 Mr Seneka published a written judgment and found in the defendant’s favour. Mr Seneka concluded that the assault by the 1st plaintiff on the defendant was vicious and uncalled for. He found the 2nd plaintiff vicariously liable and ordered it to pay the defendant K9,650.00 plus costs and interest.

On 18 October 2003 the plaintiffs filed a notice of motion in the District Court, to set aside the order of 22 August 2003 and list the matter for re-hearing.

On 7 November 2003 the District Court struck out the motion of 18 October 2003 and confirmed the order of 22 August 2003. 

On 12 November 2003 the plaintiffs filed another notice of motion, this time seeking to set aside the order of 7 November 2003.
On 19 December 2003 the District Court struck out the notice of motion of 12 November 2003.

On 2 January 2004 the District Court made a garnishee order. The garnishee is Bank South Pacific, Mt Hagen. It was ordered to pay the defendant K9,650.00 (the judgment sum) plus K65.00 (costs) plus K772.00 (interest), a total of K10,487.00. That was to come from the 2nd plaintiff’s account with the bank.

The time allowed by the District Courts Act for lodging appeals in the National Court against decisions of the District Court is one month. There is no record of any appeal against the orders of 22 August 2003, 7 November 2003, 19 December 2003 or 2 January 2004 in either the registry of the District Court or the registry of the National Court. The plaintiffs say that they lodged an appeal but the documents were "lost" in suspicious circumstances. They highlight the fact that the defendant was at the relevant time the Acting Assistant Registrar of the National Court at Mt Hagen.

On 7 October 2004 the District Court issued a warrant of execution under Section 173 of the District Courts Act and Schedule 1, form 52 of the District Courts Regulation. The warrant was issued to the officer-in-charge of Mt Hagen Police Station and other officers of the Police Force. It commanded them to seize the plaintiffs’ goods and chattels to a value not exceeding K10,487.00 and, if within 14 days that amount is not paid, to sell them and pay money arising from their sale to the Clerk of the District Court at Mt Hagen.

On 8 October 2004 the plaintiffs filed the present originating summons in the National Court. They sought leave for an extension of time to appeal against the decision of the District Court and a stay of the District Court proceedings. On the same day, 8 October 2004, they filed a notice of motion in the same terms. In support were two affidavits. One was by Christopher Jaminan, the lawyer of Young & Williams Lawyers, who now have the carriage of this matter. The other was by Andrew Stocks, the 2nd plaintiff’s acting Group General Manager.

Mr Jaminan deposed that he received instructions in this case on 6 August 2004. Before then, the case was dealt with by Warner Shand Lawyers. He was not given all the documents, so on 15 September 2004 he wrote to Warner Shand to get any documents that were still in their possession. Warner Shand have not responded. However from the instructions he received and the documents he has, he can say that on 19 December 2003 Warner Shand filed an appeal in the National Court registry at Mt Hagen. However, the appeal documents have not been made available. In his opinion the defendant was in a conflict of interests. He was, in his capacity as Assistant Registrar, the custodian of the appeal documents, while the appeal was against a District Court decision in his favour. 

Mr Stocks deposed that neither the 2nd plaintiff nor their then lawyers, Warner Shand, were given notice of the District Court proceedings of 22 August 2003. On 22 April 2004 Warner Shand advised the 2nd plaintiff that the appeal documents that had been lodged in the National Court had gone missing. Mr Stocks offered the same opinion as to the defendant’s conflict of interests as Mr Jaminan did.

On 8 October 2004 I dealt with the notice of motion, filed that day, in chambers. I dealt with the matter that way as I was informed by Mr Matthew Tamutai of Tamutai Lawyers (the town agents for Young & Williams) that it was a sensitive matter. There had been difficulties with this case, and it might be hard to get the plaintiffs’ motion set down for hearing in court. I granted the orders sought. Thus:

•	The plaintiffs were granted an extension of time to appeal against the decision of the District Court, erroneously described in the actual order entered as being made on 19 December 2004.

•	The District Court proceedings were stayed. The practical effect of that was that the garnishee proceedings were put on hold.

I also ordered that the defendant be given notice of the orders and that the matter should return for mention on the next motions day in Mt Hagen, which was 15 October 2004.

On 15 October 2004 the matter was mentioned before me and I extended the stay order; and the same thing happened on 21 and 22 October 2004.

In the meantime on 14 October 2004 the Public Solicitor entered an appearance for the plaintiff. Then on 21 October 2004 the Public Solicitor filed a notice of motion, seeking to have the order of 8 October 2004 set aside. That notice of motion, argued before me on 5 November 2004, is the subject of this ruling.

RELEVANT LAW

The order I made in chambers on 8 October 2004 is an interim order. It did not finally determine the rights of the parties. As I recently pointed out in Ekepa v Gaupe (2004) N2694, the National Court can set aside its earlier interim orders. This power exists irrespective of whether the previous orders were made by the same Judge who is dealing with the application to set aside the previous orders. The power derives from both the National Court Rules and the Constitution.

National Court Rules 

Order 12, Rule 8(4) deals specifically with setting aside or varying ex parte orders. 

It states: 

In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

Constitution

The Constitution provides that the National Court is a superior court of record. Subject to the role of the Supreme Court, it has an inherent power to review the exercise of judicial authority. It has an inherent power to make, in such circumstances as seem to it proper, orders in the nature of prerogative writs or such other orders as are necessary to do justice in the circumstances of a particular case. It is obliged, generally, to apply and enforce, as part of the underlying law, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England. (See Constitution, Sections 163(2), 155(3)(a), 155(4) and Schedule 2.2.)

The order of 8 October 2004 was an interim order and contained an interlocutory injunction. An injunction is an equitable remedy. In deciding whether to grant or set aside an injunction, the National Court relies on the rules of equity that were adopted on Independence. For example: the Court’s decision whether to grant or vary or set aside an injunction is a matter of discretion; the Court must always consider the conduct of the parties; maxims such as ‘those who seek equity must do equity’ and ‘those who come to a court of equity must come with clean hands’ must be considered; a court of equity retains a discretion to set aside an interim injunction.

PLAINTIFFS’ SUBMISSIONS

Mr Jaminan submitted that it was clear that the appeal documents had been filed. But they had become lost in suspicious circumstances, which is not the fault of the plaintiffs. An appeal was filed soon after the District Court decision of 19 December 2003. The defendant was in a conflict of interests. The interests of justice and fairness dictate that the order of 8 October 2004 remains intact. 

DEFENDANT’S SUBMISSIONS

Mr Aipe asserted that the plaintiffs should have appealed against the District Court order of 22 August 2003, if they were aggrieved by it. Instead of doing that they made two applications to the District Court to get the decision of 22 August 2003 set aside. They were unsuccessful on each occasion. Now they want to appeal. They say that they have already filed an appeal but cannot produce any evidence that they have done so. The statements made in the affidavits of Messrs Jaminan and Stocks are hearsay. It is all too easy to make allegations of impropriety against Court staff without any evidence to back them up. The plaintiffs do not deserve to be allowed to appeal out of time. 

RELEVANT CONSIDERATIONS RE EXERCISE OF DISCRETION

In deciding whether I should exercise my discretion to set aside the interim order of 8 October 2004, the consideration I give a lot of weight to is that when I made that order, I did not have the benefit of considered submissions from both sides. I have now received such submissions and I am now familiar with the background of the case. I have in effect conducted a re-hearing of the plaintiffs’ notice of motion. That means the issues are:

•	Should the plaintiffs be granted an extension of time to appeal against the District Court decision?

•	Should the District Court proceedings, especially the garnishee proceedings, be stayed?

The reason the plaintiffs say that they need, and deserve, an extension of time is that, in fact, they have already lodged an appeal but it has become lost in suspicious circumstances. On this issue, however, I am persuaded by Mr Aipe’s submission that there is no evidence that an appeal has been filed. The affidavits of Mr Jaminan and Mr Stocks contain hearsay statements that they are informed that an appeal was lodged. But there is no proof. Mr Jaminan says that, for a long time, the case was handled by a different law firm. He tried to obtain copies of the appeal documents that were lodged but has been unsuccessful. This to me seems very strange. If an appeal were lodged, it is reasonably to be expected that the lawyer lodging the appeal would have retained a hard copy of what was lodged or at least would have been able to produce a copy if need be. The Court has been presented with nothing. And surely, if an appeal were lodged, it would have been reasonable to expect the lawyer who lodged the appeal to query or challenge the delay, if the sealed appeal documents were not immediately produced. Or, better still, to seek an extension of time to appeal.

Lawyers who file documents and ‘hope for the best’ and do not follow up or challenge delays in a court registry are not doing their job professionally.

I also find myself in agreement with Mr Aipe’s submission that it is becoming too easy for lawyers to blame Court registry staff when something goes wrong. Here, serious allegations have been made against the defendant, who was the Acting Assistant Registrar of the National Court at Mt Hagen. It is suggested that he used his position to intercept appeal documents that had been filed in relation to a District Court decision that was in his favour. However, no evidence in support of that allegation has been filed. Not even evidence that an appeal document was drafted by anybody.

I can accept that the defendant was in a potential conflict of interests. And it could be argued that it would have been more transparent and appropriate for him to have commenced his District Court case somewhere else, eg at Goroka. But he filed the District Court proceedings in Mt Hagen and the Court processes have been allowed to continue in the District Court and the National Court at Mt Hagen. The plaintiffs had the opportunity to raise these concerns earlier. It is not equitable to raise the allegations now in this manner. 

Another consideration that has become apparent is the dithering and dilatory conduct by the plaintiffs’ two lawyers that has allowed the District Court decision of 22 August 2003 to continue in force.

No appeal was filed against that decision. There were then two fruitless attempts to get the decision set aside. Then – if the hearsay evidence is accepted – an appeal to the National Court was made on 19 December 2003. Then nothing was done until almost ten months later. Mr Jaminan said he received instructions in the case in August 2004. But even then nothing was done until two months after that.

In all the circumstances I can see no reason for allowing the plaintiffs an extension of time to appeal. That means there is no reason that any of the decisions of the District Court should be stayed any longer.

Having closely considered the conduct of the parties, I am not satisfied that the plaintiffs have come to the Court with ‘clean hands’. The interests of justice require me to exercise my discretion to set aside the previous orders made in favour of the plaintiffs.

ORDER

The order of the Court will be that the order of 8 October 2004 is set aside. The plaintiffs shall pay the defendant’s costs, to be taxed if not agreed.
____________________________

Lawyers for the plaintiffs		:	Young & Williams
Lawyers for the defendant		:	Public Solicitor