N4160

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS. No. 141 of 2008

BETWEEN

MOROBE PROVINCIAL GOVERNMENT
Plaintiff

AND

TROPICAL CHARTERS LIMITED
First Defendant

AND

FRANCIS TANGA-CHAIRMAN OF NATIONAL LAND BOARD
Second Defendant

AND

RAGA KAVANAR AS REGISTRAR OF LANDS TITLES
Third Defendant

AND

DR. PUKA TEMU – MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Gabi, J
2009: 2 November

PRACTICE AND PROCEDURE – application by plaintiff to set aside ex parte order dismissing proceedings and to re-instate – defendant contests application – defendant contends O12 r 8 does not apply in this application for various reasons – Such reasons are that the proceedings were dismissed after a trial, or order as been entered and should not be set aside under the principle of 'finality of litigation', or the proceedings relate to challenge of title, which involves allegation of fraud which shall be commenced by way of writ of summons or the appropriate forum shall be the Physical Planning Appeals Tribunal and not Judicial review under O16 - Order 8 Rule 12, Order 12, Rule 8 (1), (3) and (4) & Order 16 of the National Court Rules, s 88 Physical Planning Act 1989

PRACTICE AND PROCEDURE - whether court has jurisdiction to set aside the ex parte order which finally disposes of the proceeding - court has jurisdiction to set aside an ex parte order that dismisses a proceeding for want of prosecution – plaintiff is seeking an order in the nature of certiorari to quash decision of Land Board and there is no allegation of fraud –no delay in this application – reason to vacate proceedings was reasonable to give time for key witness to testify – ex parte order is set aside

Facts:

The plaintiff is applying for an order to set aside an ex parte order which dismissed the proceedings. The plaintiff's counsel sought to vacate the trial date to have key witness summoned to testify. The defence counsel opposed the vacation of the trial date and in the absence of the plaintiff's counsel, the trial judge dismissed the entire proceedings. The defence counsel in opposing the application contends that Order 12 Rule 8 does not apply as the proceedings were dismissed after a trial. The appropriate rule therefore should be Order 10 Rule 12. Secondly, as the order has been entered, it should not be set aside due to the public policy of finality of litigation. Thirdly, the proceedings relate to challenge of title, which involves allegation of fraud and the proper mode of commencing proceedings is by way of writ of summons, not by way of judicial review under Order 16. Finally, the appropriate forum to review the decision of the National Physical Planning Board is the PNG Physical Planning Appeals Tribunal pursuant to section 88 of the Physical Planning Act 1989.

Held:

1.	No trial was conducted by the trial judge and so this court has jurisdiction to set aside the ex parte order.

2.	The plaintiff is seeking an order in the nature of certiorari to quash the decision of the National Land Board. There is no allegation of fraud in these proceedings. The mode of commencement of the proceedings is correct. 

3.	Ex parte order is set aside

Cases Cited:

Papua New Guinea Cases Cited:

Malt v Queen (2009) N3577
Martha Loke-Tilto v Qantas Airways Ltd (1998) SC541
National Stevedores Pty Ltd & Anor v Andrew Baing & Ors (1998) N1705
Obadia Buka v Jude Baisi & Anor (2004) N2602
Smith v Ruma Constructions Ltd (2002) SC695
Thomas Rangip & Anor v Peter Loko & Anor (2009) N3714

Counsel

J Haiara, for the plaintiff
E Manu, for the First defendant

DECISION

2nd November, 2009

1.	GABI J: Introduction: This is an application by Morobe Provincial Government, the plaintiff, to set aside the ex parte Order of 20th July 2009 which dismissed the entire proceedings pursuant to Order 12, Rule 8 (1), (3) and (4) of the National Court Rules and to re-instate the entire proceedings.

Evidence

2.	The parties filed the following affidavits: (i) affidavit of Justin Haiara dated 16th July 2009; (ii) affidavit of Kenneth Aisi dated 21st July 2009; 
(iii) affidavit of Justin Haiara dated 25th July 2009; and (iv) two affidavits of Edward Manu dated 24th and 29th July 2009 respectively.

Facts

3.	This matter was set down for trial on 20th July 2009 at Lae. It appears that on or about 16th July 2009, Mr. Haiara became aware that Mr. Billy Lawrence, a key witness, had left the employment of Morobe Provincial Government and was now working in the Gobe Petroleum Project Area. In his affidavit dated 18th July 2008, Mr. Billy Lawrence deposed that the land the subject of the proceedings is a Public Park. In Mr. Theo Pelgen's affidavit dated 14th July 2009, he deposed that Mr. Billy Lawrence knew about the re-zoning of the land to Business (Light Industrial) Lease and supported the application of Tropical Charters Ltd, the first defendant, to the Land Board. In view of that situation, the counsel for the plaintiff was seeking vacation of the trial date and have Mr. Billy Lawrence summoned to attend and give evidence.

4.	Mr. Manu of counsel for the first defendant opposed the vacation of the trial date and attended on 20th July 2009 for hearing. Mr. Aisi, who was appearing on instructions of the lawyers for the plaintiff, was late and not in court when the application for vacation was opposed by Mr. Manu. In his affidavit dated 29th July 2009, Mr. Manu deposed that a hearing was conducted after the application for vacation was dismissed. Without hearing the plaintiff, the trial judge dismissed the entire proceedings.

Submissions

5.	Mr. Manu made the following submissions in opposing the application. First, Order 12 Rule 8 does not apply as the proceedings were dismissed after a trial. As such, the appropriate rule under which to make the application is Order 10 Rule 12 (see Martha Loke-Tilto v Qantas Airways Ltd (1998) SC541). Secondly, as the order has been entered, it should not be set aside due to the public policy of finality of litigation (see National Stevedores Pty Ltd & Anor v Andrew Baing & Ors (1998) N1705). Thirdly, the proceedings relate to challenge of title, which involves allegation of fraud and the proper mode of commencing proceedings is by way of writ of summons, not by way of judicial review under Order 16. Finally, the appropriate forum to review the decision of the National Physical Planning Board is the PNG Physical Planning Appeals Tribunal pursuant to section 88 of the Physical Planning Act 1989.

6.	I intend to deal with each of the submissions; however, before I do so I intend to comment on the date of entry of the Order of 20th July 2009.

Entry of the Order

7.	The Order was made on 20th July and entered on 21st July 2009. There was no direction to enter judgment by the trial judge. In the absence of such a direction, Order 12 Rule 19 states that the judgment should not be entered until after the expiration of seven days. Accordingly, the order should have been entered on 28th July 2009. The significance of this is that the application was made before the entry of the order.

Trial

8.	In his affidavit dated 29th July 2009, Mr. Manu deposed that after dismissing the application for vacation, the trial judge proceeded to hear the matter and dismissed the proceedings after a trial. I have had the benefit of reading the transcript of proceedings on Monday 20th July 2009. First, the hearing commenced at 9.49 am and ended at 9.55 am, which is approximately 6 minutes of hearing. Secondly, the proceedings were dismissed due to non-appearance by the plaintiff. No trial was conducted.

Finality of judgment

9.	I am of the view that the application is properly made under Order 12 Rule 8. Mr. Manu quoted extensively from PNG Stevedores Pty Ltd & Anor v Andrew Baing & Ors (supra). In that case, the Order was obtained by consent and the application was made some seventeen (17) months after the entry of the Order. In this instance, the application was made promptly before the entry of the Order. Secondly, the Order was obtained ex parte.

10.	The question is whether I have jurisdiction to set aside the ex parte order, which finally disposes of the proceedings. 

11.	There are two conflicting and differing views on the matter. Makail AJ (as he then was) in Malt v Queen (2009) N3577 held that an ex parte order dismissing an entire proceedings for want of prosecution finally disposes of the proceedings, the same court does not have jurisdiction to set it aside, only the Supreme Court does on appeal.

12.	The question was again considered by Hartshorn J, in Thomas Rangip & Anor v Peter Loko & Anor (2009) N3714 where he held that the National Court does have jurisdiction to set aside an ex parte National Court order that dismisses an action for want of prosecution. His Honour said at paragraphs 12 and 13 thus:

"…although the general rule is that a court ordinarily has no power to set aside a final order once it has been passed and entered, Order 12 Rule 8 National Court Rules and the New South Wales equivalent, Pt 40 r 9 from which our Rule is derived, deal with several exceptions to the general rule: Ritchie's Supreme Court Procedure Vol. 1 40.9.

One of those exceptions is where the judgment or order has been made ex parte: Order 12 Rule 8(2)(b) and (c), and (3)(a). In this regard I refer to the New South Wales Supreme Court decision of Nicholson v Nicholson [1974] 2 NSWLR 59, where Jenkyn J., after noting that the power to set aside or vary an order can be given to a court by a statutory provision or a validly made rule, considered Pt 40 r 9(3), which is the same as Order 12 Rule 8(3) and concluded at p.64 that its application is not limited to interlocutory orders but applies also to final orders."

13.	I agree with Hartshorn J that this court has jurisdiction to set aside an ex parte order that dismisses a proceeding for want of prosecution.

Principles

14.	In Smith v Ruma Constructions Ltd (2002) SC695, Kapi DCJ (as he then was) said that the discretion to set aside default judgment under Order 12 Rule 35 is couched in identical terms to Order 12 Rule 8(2) and (3) and that the principles governing the exercise of discretion would be the same. The principles are settled in this jurisdiction. The applicant must satisfy the court: (i) why the order was allowed to be entered in the absence of the applicant; (ii) if there is a delay in making the application to set aside, a reasonable explanation as to the delay; and (iii) that there is a defence on the merits. Here, as the order sought to be set aside is a dismissal for want of prosecution and not a default judgment, the principle to be considered is whether there is an explanation for the proceedings not being prosecuted with due diligence.

Ex parte order made in absence of plaintiff

15.	The application before the court was to vacate the hearing date, not to dismiss the proceedings. The reason for vacation was that the plaintiff's key witness was no longer in its employment and the lawyers wanted him summoned to attend and give evidence. The application was not made as the lawyer for the applicant was not in court at the time the matter was called, but the Court nevertheless dismissed the proceedings for non-appearance by the plaintiff or its lawyers. Mr. Aisi deposed that he was late by some 15 minutes.

Delay 

16.	There is no delay in making the application. This application was filed on 21st July 2009 before the entry of the Order of 20th July 2009.

Due diligence 

17.	This matter was set down for trial on 20th July 2009. The lawyers for the plaintiff became aware that the key witness was no longer in the employ of the plaintiff on or about 16th July 2009. Secondly, evidence from Mr. Theo Pelgen shows that the key witness was aware of the re-zoning of the land and supported the first defendant's application to the Land Board. In view of that situation, the lawyers wanted the hearing date vacated so that the witness is summoned to appear and give evidence.

18.	It is the responsibility of a plaintiff to prosecute his action with due diligence and it is the plaintiff who has to take the next step in the proceedings to get the matter ready for trial: Obadia Buka v Jude Baisi & Anor (2004) N2602. This matter was ready for trial, but could not proceed on that day because the key witness was not in Lae. The request to vacate was not an unreasonable one in view of the state of the evidence. I am of the view that the explanation is satisfactory.

Fraud

19.	This is judicial review under Order 16. I have read the pleadings. The plaintiff is seeking an order in the nature of certiorari to quash the decision of the National Land Board and a declaration that it is the owner of the land. There is no allegation of fraud whatsoever in these proceedings. The allegation is that the process in the grant of the lease was flawed and the Court is asked to review that process. The mode of commencement of the proceedings is correct. 

Section 88 of Physical Planning Act 1989 

20.	It is not known whether this issue was raised at the leave stage. I, however, recall the issue been raised before me by Mr. Maik Karu. I was of the view then and now that it must be raised at the substantive hearing and properly argued before determination.

21.	For all the above reasons, I set aside the Order of 20th July 2009. I direct that the plaintiff mentions the matter before the motions judge in Lae on 6th November 2009 for a date for hearing either in November or December 2009. Costs are in the cause. 

_________________________________

Steeles Lawyers: 	Lawyers for the Plaintiff
Manu & Associates: 	Lawyers for the First Defendant