N4015

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO 186 OF 2003

BETWEEN

TEP ROGER
Appellant

AND

DICK KOLUA
First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Mount Hagen: Makail, J
2010: 04th & 13th May

INFERIOR COURTS - Appeals - Decision of - Ex-parte - Strike out of proceeding - Want of prosecution - Setting aside of - Refusal of - Discretionary - Principles of - Whether discretion properly exercised - District Courts Act, Ch 41 - Sections 25 & 230.

Cases cited in this judgment:

Papua New Guinea cases:

Christopher Smith -v- Ruma Constructions Ltd (2002) SC695
General Accident Fire and Life Assurance Corporation Ltd -v- Illimo Farm Products Pty Ltd [1990] PNGLR 331
Government of PNG -v- McCleary [1976] PNGLR 321

Overseas cases:

Flint -v- Lovell [1934] 1KB 354

Counsel: 

Mr P Kunai, for Appellant
Mr L Mapiso, for Respondents

JUDGMENT

13th May, 2010

1. MAKAIL, J: In the District Court, the appellant sued the respondent for damages arising from an alleged motor vehicle accident along Ogulbeng/Baiyer road near Mt. Hagen town on 23rd October 1998. He alleged that the first respondent was driving a motor vehicle owned by the police in front of him and suddenly stopped causing him to run into the rear of the motor vehicle. His motor vehicle, a 15 seater bus sustained severe damage and was put into repairs. He claimed costs of repairs against the respondents. The respondents failed to file their defence and on 19th December 2001, he successfully obtained default judgment against them with damages to be assessed.

2. Following the default judgment, there were a couple of adjournments until 13th January 2003 when the mater came before his Worship Mr Appa. Mr Kumoro Sino appeared for him and no-one appeared for the respondents. According to the record of proceeding of that date at p 38 of the appeal book, Mr Appa noted "Mr Sino yet to file affidavits." The matter was further adjourned to 12th February 2003. On 12th February 2003, the matter was called and this time, Mr Ovia appeared for the respondent and no-one, including Mr Sino appeared for the appellant. Again, according to the record of proceeding of that date at p 39 of the appeal book, it is noted that "Mr Ovia said was advised by Mr Sino for complainant to appear today. Mr Sino & his client are not here. They knew of dated & this hearing." The Court went on and struck out the matter for want of prosecution. 

3. On 23rd April 2003, the appellant filed an application to set aside the ex parte of 12th February 2003. On 20th June 2003, the application came before his Worship Mr Seneka for hearing and his Worship heard it. On 11th July 2003 he delivered his ruling and refused it. His reasons for refusing it may be found at pp 56 & 57 of the appeal book and were:

"Complainant filed an affidavit by his lawyer Mr Johannis Poya who said that the assessment of damages in his case was presided when it was struck out. This case was set for trial on 13th January 2003 complainant did not appeared (sic) so was adjourned to 12/02/03. On 12/02/03, complainant made non appearance also, the lawyer having carriage of the case resigned and that there was no-one to take up.

Complainant’s lawyers say that there is an assessment of damages pending and so should be reinstated.

Defendant’s counsel said the excuse for lawyer’s resignation should not be an excuse for no lawyer taking up on 12/02/03. I agree with the defence counsel and a notice to the clerk of court proceeding (sic) day could be sufficient to notify the presiding magistrate.

Perusal of the file shows complainant was charged for driving without due care and attention. He went into hiding and after the police witness had left the Province, he came out to make a claim against the state. I see this as a dirty game. Complainant must come out with a clean hand.

Complainant has not come with a clean hand. He has come with a charge that had (sic) avoided. Should this case proceed, it would be an unfair enrichment."

4. This is the decision that is the subject of the appeal. The question is, did his Worship err in refusing to set aside the ex-parte order of 12th February 2003 which struck out the proceeding for want of prosecution? The appellant advances four grounds to demonstrate that his Worship erred when he refused to set aside the ex-parte order of 12th February 2003. They are:

1.	His Worship took into account irrelevant factors when he refused to reinstate the proceeding;

2.	The appellant was denied the opportunity to prosecute the proceeding on the basis that default judgment had been entered against the respondents;

3.	The justice of the case did not warrant the refusal of the order to reinstate the proceeding; and

4.	The order for refusal of the application for reinstatement of the proceeding was not based on proper considerations of law and fact.

5. The appellant seems to argue all the grounds of appeal together. He suggest that his Worship took into account irrelevant factors which led him to reach a wrong conclusion. First, his Worship was led to believe that the appellant evaded criminal prosecution for driving without due care and attention by going into hiding and reappearing after the police witnesses transferred out of the province to pursue the claim for damages against the respondents. Secondly, his Worship was led to believe that by evading the police and reappearing to pursue the claim for damages against the respondents, amounted to unjust enrichment on the part of the appellant. These were irrelevant factors which influenced him to reach a wrong decision.

6. If he had taken into account that first, there was a default judgment against the respondents with damages to be assessed, he would have concluded otherwise and secondly, if he had accepted Mr Sino’s resignation from the law firm resulting in his non appearance on 12th February 2003 as a reasonable explanation, he would have set aside the ex-parte order.

7. The contrary view was presented by the respondents. They argue that his Worship’s decision should not be disturbed by the Court as there is no valid reason to do so. They say the appellant has failed to identify precisely where his Worship fell into error and it is not sufficient to say that his Worship took into account irrelevant factors when he refused to set aside the ex-parte order of 12th February 2003. The irrelevant factors that the appellant has turned into a major ground of appeal are peripheral to the main issues before his Worship. 

8. The main issues were first, whether the appellant had provided a reasonable explanation as to why judgment was entered in his absence and if that is considered, his Worship did take it into account and found that the reason offered by the appellant that his lawyer Mr Sino had resigned from employment, hence had not attended the hearing on 12th February 2003 was unsatisfactory. Secondly, whether there was delay in bringing the application to set aside the ex-parte order of 12th February 2003. On this issue, they argue that it took about two months for the appellant to file the application to set aside the ex-parte order on 23rd April 2003 and no explanation was given for the delay and even if there was, it was unsatisfactory. 

9. They further argue and urge the Court to compute delay from the date of entry of default judgment of 19th December 2001 to the date of striking out of the proceeding of 12th February 2003 and if the Court computes delay from that point, there is a delay of one year and two months and the delay is inordinate and unexplained. They emphasize that the appellant gave no evidence and made no submission on this issue, hence it is wrong for him to suggest that his Worship was wrong to refuse the application to set aside the ex-parte order. There is also no reasonable explanation for the delay and a good example was when Mr Sino appeared on 13th January 2003 and requested for a further adjournment as he needed time to file affidavits. They argue that Mr Sino should have filed affidavits well before that date.

10. Thirdly, in relation to the merit of the matter, while they accept that the matter was pending trial on assessment of damages, they argue that the appellant has failed to demonstrate that the trial on assessment of damages in itself is sufficient to make out a case for setting aside of the ex-parte order. In other words, they argue that the appellant has failed to demonstrate that his Worship did not take into account that there is a serious case to be tried. Fourthly, they argue that they will be prejudiced if the ex-pate order is set aside because their witnesses are not readily available as they have transferred out of the province. When it comes to trial on assessment of damages, they will be no witnesses for them.

11. The District Court may set aside its own orders by virtue of its powers in section 25 of the District Courts Act, Ch 41. In my view, it is a discretionary power as it must be exercised according to law and the law regarding setting aside of ex-parte orders is no doubt in our jurisdiction. In relation to setting aside of orders on dismissal or struck out of proceedings as opposed to default judgment, an applicant is place with the burden of satisfying the Court that: 

1.	There is reasonable explanation as to why judgment was entered in the absence of the applicant;

2.	Whether there is delay in making the application and if so, 	whether there is reasonable explanation for the delay;

3.	There is a serious issue to be tried; and

4.	Whether there will be no prejudice to the opposing party if the ex-parte order is set aside.

12. In my view, these are stringent requirements which must be satisfied by a party applying to set aside an ex-parte order before a matter is re-opened or re-litigated. The rationale behind parties being estopped from re-opening or re-litigating a matter that has been determined by judgment, be it dismissal or otherwise, is that, public interest requires that there must be finality to litigation: see Christopher Smith -v- Ruma Constructions Ltd (2002) SC 695 and General Accident Fire and Life Assurance Corporation Ltd -v- Illimo Farm Products Pty Ltd [1990] PNGLR 331 at 334.

13. In the present case, it is true that his Worship did observe that the appellant evaded criminal prosecution for driving without due care and attention by going into hiding and reappearing after the police witnesses had transferred out of the province to pursue the claim for damages against the respondents and further, his reappearance to pursue the claim for damages against the respondents amounted to unjust enrichment, in his reasons, but I am not persuaded that they were the overriding considerations that influenced him to refuse the application to set aside the ex-parte order. I agree with the respondents’ submission that these factors that the appellant claims as irrelevant are peripheral to the main issues before his Worship.

14. The main issues before his Worship were first, whether the appellant had provided a reasonable explanation as to why judgment was entered in his absence and if it is considered, his Worship did take it into account and found that the reason offered by the appellant that his lawyer Mr Sino had resigned from employment, hence had not attended the trial on 12th February 2003 was unsatisfactory. Just to elaborate on this issue, in my view the resignation of Mr Sino from the law firm resulting in his non attendance on behalf of the appellant on 12th February 2003 is an internal administrative matter that should not have been brought to the attention of the Court at all. It is irrelevant, as far as this Court is concern.

15. What was and is relevant as far as the Court below and this Court is concerned is that, it was at Mr Sino’s request that the Court adjourned the matter on 13th January 2003 to 12th February 2003 for trial to enable him to file affidavits. He knew very well that he had to return to Court for the trial on 12th February 2003 but did not and the Court below was perfectly entitled to raise concern in relation to his non attendance and proceed to struck out the matter for want of prosecution.

16. If Mr Sino had indeed resigned before the matter returned to Court on 12th February 2003, I consider that it was the responsibility of the law firm to protect the interest of the appellant by ensuring that another lawyer from the law firm appeared on behalf of the appellant on 12th February 2003. Lawyers’ duty in protecting clients’ interests, as is the case here, is fundamental and of paramount importance in a lawyer/client relationship and I cannot see any better way to stress its importance in the way I have put it. I would not be wrong also to say, as it is not only common knowledge, but also a common occurrence in recent times, lawyers failing to appear in Court without prior notice or explanation or with unsatisfactory explanation, forcing the Court to either adjourn or dismiss cases for want of prosecution. With respect, this case is a classic example and I am persuaded that this was the overriding consideration that compelled his Worship to conclude in the way he did. That is, refusing the application to set aside the ex-parte order.

17. Secondly, no satisfactory explanation has been given by the appellant for not filing the application to set aside the ex-parte order in good time. I note no submissions were made either in this Court or the Court below on this issue. Neither do I find evidence in the affidavit in support of Johannis Poya sworn on 17th April 2003 and filed on 23rd April 2003 at pp 45 - 48 of the appeal book explaining why the application to set aside the ex-parte order was not filed until 23rd April 2003. Between 12th February 2003 and 23rd April 2003 is about two months of unexplained delay. This omission may be the reason for his Worship not making any finding of fact in relation to the issue of delay, except to observe in passing that the appellant went into hiding to evade criminal prosecution by police for driving without due care and attention.

18. In my view, the appellant’s failure to direct his Worship’s mind to the issue of delay and explanation (if any) should not be held against him on appeal. With that, I consider it not necessary to consider the further submission of the respondents in relation to computing delay from the date of entry of default judgment of 19th December 2001 to the date of strike out of proceeding of 12th February 2003.

19. Thirdly, the appellant has not demonstrated that there is a serious case to be tried except by pointing his Worship to the fact that the matter was pending trial on assessment of damages and asked his Worship to allow him to proceed to assessing damages. It is obvious to me that his Worship did take note of it although he did not make any finding as to whether or not it raised a serious issue which justified the setting aside of the ex-parte order. Be that as it may, I consider that the overriding consideration that compelled his Worship to refuse the application was the unsatisfactory explanation of Mr Sino’s non attendance on 12th February 2003.

20. Finally, the appellant made no submission before this Court in relation to the question of prejudice to the respondents if the ex-parte order is set aside and I am not satisfied that this issue was also brought to his Worship’s attention during submission by the appellant. That is why he did not make any finding on this issue except to again observe that the appellant’s disappearance and reappearance to pursue the claim for damages against the respondent would amount to unjust enrichment.

21. I consider that matters of prejudice to the respondents such as the non availability of witnesses for trial due to the long delay and so forth are relevant and should have been addressed by the appellant before his Worship. As it was not brought to the attention of his Worship, I consider it would be wrong to hold it against him on appeal.

22. In the end, these considerations were not only the main issues but also relevant issues in an application to set aside ex-parte orders. Out of them, only two were raised by the appellant and addressed by the Court below while the rest were not raised by the appellant and addressed by the Court below. In summary, his Worship was led to accept that the explanation given by the appellant for allowing the ex-parte order to be entered was unsatisfactory even though the matter was pending trial on assessment of damages. A Court exercising powers of an appellate Court will not disturb the findings and orders of the lower Court unless it is satisfied that the lower Court has acted on a wrong principle of law or that the lower Court has misapprehended the facts or that the findings made or the amount of damages awarded are so outrageous or inordinately low or inordinately high: see Flint -v- Lovell [1935] 1KB 354 which was applied in Government of PNG -v- McCleary [1976] PNGLR 321.

23. In the present case, the issues on appeal are whether his Worship acted on wrong principles of law and also misapprehended the facts when he refused the application to set aside the ex-parte order. This Court exercising powers of an appellate Court in section 230 of the District Courts Act, Ch 41 shall allow the appeal only if it appears that his Worship acted on wrong principles of law and also misapprehended the facts resulting in him not properly exercising his discretion to set aside the ex-parte order. In that regard, I am not satisfied that his Worship acted on wrong principles of law and misapprehended the facts resulting in him, improperly exercising his discretion in refusing to set aside the ex-parte order. I find there is no substantial miscarriage of justice in this case. I dismiss the appeal and affirm the decision of his Worship. I also order the appellant to pay the respondents’ costs of the appeal to be taxed if not agreed.

Judgment accordingly.

_______________________________
Kunai & Co Lawyers: Lawyers for the Appellant
Acting Solicitor-General: Lawyers for the Respondents