N3130

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 799 OF 2003

BETWEEN:

WAU ECOLOGY INSTITUTE LTD
Plaintiff

AND:

TREVOR NEALE
First Defendant

AND:

SAMUEL KIRIMBUK
Second Defendant

AND

MICHAEL HUDSON
Third Defendant

AND

OMAS GENORE
Fourth Defendant

AND

WAGI KUKUBOL
Fifth Defendant

Lae: Manuhu, J
2007: 9 & 21 March

RULING

PRACTICE AND PROCEDURE– Application to set aside ex parte order – relevant principles – Order 14 Rule 45 of the National Court Rules – dispensation of service not irregular – substitute service of contempt process not irregular – application dismissed.

Cases cited:
 
•	Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73.
•	Kuijk v Kuijk [1977] PNGLR 253.
•	The Government of Papua New Guinea and Richard Harold Davis v Barker [1977] PNGLR 368. 
•	Anthony John Polling v MVIT [1986] PNGLR 228.
•	Dennis Charles Young v Niugini Nius Pty Ltd [1988-89] PNGLR 45.
•	Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC 505 dated 16th August, 1996.
•	Sai-Sail Beseoh v Yuntivi Bao (2003) N2348.
•	Graham B Price and Swanita Ltd v Pacific Legal Group Lawyers (2004) N2509.

Counsel:

V. L. Narokobi, for the Plaintiff.
J. Kais, for the Defendants.

21 March 2007

1.	MANUHU, J.: This is an application, commenced by way of a notice of motion, seeking to set aside "Orders of 16th February 2007 obtained ex parte…for failing to observe the mandatory requirement of Order 14 Rule 45 and Order 6 Rule 1 of the National Court Rules." 

2.	It is necessary to contextualize the Plaintiff’s application. The subject orders and the present application are in relation to the issue of service of the contempt process on contemnors Camillus Narokobi and Harry Sakulas. Relevantly, Order 6 Rule 1 of the National Court Rules (Rules) provides that any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by the Rules or by order of the Court. In a contempt proceeding, personal service of the contempt process on the contemnor is a mandatory requirement: Order 14 Rule 45. 

3.	On an ex parte application by the defendants, however, the Court on 16th February 2007 granted leave for substitute service of the contempt process for the two contemnors in the following manner:

"1.	The requirement for service is dispensed.

2.	The contempt proceedings comprising Notice of Motion filed on 23rd January 2007 and all supporting Affidavits be served on the Contemnors, Camillus Narokobi and Harry Sakulas by substituted service.

3.	Substituted service be effected by service of the proceedings upon the law firm, Narokobi Lawyers at their Head office in Port Moresby." 

4.	The Plaintiff is aggrieved by these orders and, in this application, seeks to have them set aside. 

5.	Evidence in support of the Plaintiff’s application is relevantly found in the Affidavit of Camillus Narokobi sworn on 5 March 2007. The contemnor deposes that the contempt process has not been personally served on him. What he really means is that, as deposed in the Affidavit of Vergil Narokobi sworn on 6 March 2007, the contempt process has been served but service was effected on Narokobi Lawyers and not him. 

6.	Contextually, the Plaintiff’s application is that, having regard to the mandatory requirement of Order 14 Rule 45, the Court Order dispensing with service of the application for substitute service of the contempt process is irregular, and, consequently, the Court Order on substitute service of the contempt process is also irregular. The initial issue, therefore, is whether the Court’s waiver of or dispensation with the requirement for service of the defendants’ application on 16 February 2007 is an irregularity. The second issue is whether the Court’s waiver of or dispensation with the requirement for personal service of the contempt process is an irregularity. 

7.	The law on setting aside of ex parte orders regularly entered is settled: see Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73, and Barker v The Government of Papua New Guinea, Davis and Bux [1976] PNGLR 340. The law is restated in the Supreme Court case of Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC 505 dated 16 August, 1996, in the following manner: 

"Where a judgment is regularly obtained the manner in which the Court may exercise its discretion to set aside such a judgment is set out in Barker v The Government of Papua New Guinea, Davis and Bux [1976] PNGLR 340, namely:

1.	There must be an affidavit stating facts showing a defence on the merits;
2.	There must be reasonable explanation why judgment was allowed to go by default; and
3.	The application must be made promptly and within a reasonable time."

8.	The same Supreme Court bench also reaffirmed the law on setting aside of ex parte orders entered irregularly, thus: 

"The Courts in Papua New Guinea have quoted authorities from England as well as Australian States on this issue. The most often quoted authority on this issue is Anlaby v Praetorius (1888) 20 QBD 764 which stands for the proposition that if a judgment is entered irregularly, the defendant is entitled to set it aside ex debito justitiae (as required in the interests of justice). This principle was approved in Green & Company Pty Ltd v Green [1976] PNGLR 73; Smeeton v Davara House Pty Ltd [1979] PNGLR 324; Page P/L v Malipu Balakau [1982] PNGLR 140. This authority is also referred to in Bank of South Pacific v Spencer [1983] PNGLR 239."

9.	As intimated, the Plaintiff relies on the latter leg of the law. 

10.	Ordinarily, the Court will dispense with the requirement for personal service in an application for substitute service if the person to be served does not have a lawyer, does not have an address and could not be located. Where the person to be served has a lawyer who has a known address, the Court process may be served on the lawyer. In contempt cases, an application for substitute service would normally be prompted by inability to effect personal service on the contemnor. However, where a contemnor has a lawyer with a known address, the application for substitute service, under Order 6 Rule 1, may be served on his lawyer. In other words, in the absence of urgency or likely prejudice which would justify an ex parte hearing, an application for substitute service of the contempt process should be served on the contemnor’s lawyer. 

11.	In this case, the application for substitute service was filed on 23 January 2007. The application was not served on the contemnors. The Court, on 16 February 2007, granted leave to dispense with the requirement for service of the application. Evidence before the motions Judge was that personal and residential addresses of the contemnors were unknown, and they could not be located. In the process, it seems that the motions Judge did not give due consideration to other evidence which appear to show that Narokobi Lawyers were lawyers on record for the contemnors. On that evidence, the defendants did not have any practical difficulty in locating the office of Narokobi Lawyers. They could have served their application on Narokobi Lawyers. The ex parte hearing of their application on 16 February 2007, was probably not necessary. 

12.	Be that as it may, the Court dispensed with service of the application for substitute service and subsequently granted leave for service of the contempt process to be effected by substitute service. There were probably good reasons for doing so.

13.	The Court could have considered that the contemnors are separate persons from Wau Ecology Institute Ltd, which is the Plaintiff, and which lawyer on record is Narokobi Lawyers. The contemnors are not parties to the substantive proceeding. They are separate individuals facing contempt charges. This would be a valid reason for the grant of orders the Plaintiff is now aggrieved by. It is also interesting that this application is not made by the contemnors but by the Plaintiff which has not been charged with contempt.

14.	The rights and wrongs of the exercise of discretion in question, in any event, is a matter best left for the appellate Court. For present purposes, it was within the Court’s discretionary powers to dispense with any requirement of the Rules. Under Order 1 Rule 7, the Court "may dispense with compliance with any of the requirements" of the Rules, either before or after the occasion for compliance arises. See Dennis Charles Young v Niugini Nius Pty Ltd [1988-89] PNGLR 45, Anthony John Polling v MVIT [1986] PNGLR 228, Sai-Sail Beseoh v Yuntivi Bao (2003) N2348, Graham B Price and Swanita Ltd v Pacific Legal Group Lawyers (2004) N2509. 

15.	In the circumstances, the relevant paragraph of the Orders of 16 February, 2007 which dispensed with service of the application was not irregularly entered and, for that reason, cannot be set aside. 

16.	In relation to the second issue, under Order 6 Rule 1, any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by the Rules or by order of the Court. In contempt proceedings, personal service is mandatory. Under Order 14 Rule 45, the appropriate notice of motion or summons, the statement of charge, and the supporting affidavits shall be served personally on the contemnor. 

17.	However, as earlier observed, the Court has the discretion to dispense with the requirements of the Rules. Under Order 1 Rule 7, the Court "may dispense with compliance with any of the requirements" of the Rules, either before or after the occasion for compliance arises. 
 
18.	There is, however, a distinction between dispensing with an ordinary procedural rule and dispensing with a mandatory procedural rule. The cited cases relate to the former. There is little or no decided case on how the Court’s discretionary power under Order 1 Rule 7 could be exercised in relation to a mandatory procedural requirement such as the requirement for personal service under Order 14 Rule 45. 

19.	I am of the considered view that Order 1 Rule 7 does not draw the distinction between an ordinary procedural rule from a mandatory procedural rule. Order 1 Rule 7 simply provides that the Court may dispense with compliance with "any of the requirements" of the Rules. This would include all mandatory procedural rules under the Rules, and Order 14 Rule 45 is not an exception. The Court is satisfied, therefore, that Order 1 Rule 7 empowers the Court to dispense with the mandatory requirement of personal service under Order 14 Rule 45.

20.	The Court is, accordingly, satisfied that the service of the contempt process on Narokobi Lawyers, which is in accordance with the terms of the Court Orders of 16 February 2007, is not an irregularity and, for that reason, cannot be set aside.

21.	The contemnors’ better option would be to rely on the other leg of the setting aside principle in the cases of Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73, and The Government of Papua New Guinea and Richard Harold Davis v Barker [1977] PNGLR 368. The Plaintiff would be required, among other things, to disclose in an affidavit a meritorious defence or argument against substitute service. In that regard, the materials before the Court do not show how the Plaintiff would have opposed the application for substitute service on 16 February 2007. 

22.	I further note that in the case of Kuijk v Kuijk [1977] PNGLR 253, it was held that:

"If the Court is satisfied that the purpose of a rule has been substantially fulfilled, the Court has an inherent jurisdiction under s 155(4) of the Constitution, in the interests of justice to waive strict compliance with the rule." 

23.	In this case, it is of substantial importance that the contemnors are served with the contempt processes so that they are made aware of the nature of the proceeding against them. When this application was being argued, contemnor Camillus Narokobi was present in the Court room and was listening to the presentation of the arguments. This means that he is aware of the contempt proceeding.

24.	In the absence of an argument against substitute service, and with the purpose of the rule substantially fulfilled, the Plaintiff would have also failed to set aside the Court’s exercise of discretion on 16 February 2007 to dispense with the requirement for personal service.

25.	In all the circumstances, the notice of motion is dismissed with costs, which, if not agreed, shall be taxed.

Orders accordingly. 

_____________________________________________

Narokobi Lawyers: Lawyer for the Plaintiff	
Pryke and Janson Lawyers: Lawyer for the Defendants