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Paradise Contractors Ltd v Milne Bay Provincial Government [2010] PGNC 5; N3975 (12 March 2010)

N3975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 703 OF 2009

BETWEEN:

PARADISE CONTRACTORS LIMITED
Plaintiff

AND:

MILNE BAY PROVINCIAL GOVERNMENT
First Defendant

AND:

HENRY BAILASI,
as Milne Bay Provincial Administrator and as
Chairman of Milne Bay Provincial Building Board
Second Defendant

AND:

NAPOLEON LIOSI,
as Chairman of the Economic Facilitation Committee,
Milne Bay Provincial Government
Third Defendant

AND:

ALOTAU URBAN LOCAL LEVEL GOVERNMENT
Fourth Defendant

AND:

HAROLD TABU,
as Chairman of Alotau Urban Local Level
Government Trading Licence Committee
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Davani .J
2010: 10th, 12th March

PRACTICE AND PROCEDURE – ex parte order to dismiss proceedings or application – must apply to set aside – if granted, can then file same or similar proceedings.

Facts

Ketan Lawyers for the plaintiff filed a Motion which they did not move because they did not appear to move. The lawyer for the defendants applied to dismiss the Motion for want of prosecution and non-appearance. The Order was granted.

The plaintiff’s lawyer then, on the same day, filed a Motion in the same or similar terms without firstly setting aside the Order to dismiss.

Held

The party whose Motion or proceedings was dismissed, must firstly apply to set aside those orders, before he can file Motion seeking the same or similar orders.

Counsel

A. Carl, Lawyer for the Plaintiff/Applicant
D. Liosi, Lawyer for the First to the Fifth Defendants/Respondents
No appearance for and on behalf of the Sixth Defendant

12th March, 2010

RULING

1. DAVANI .J: Before me is a Notice of Motion (‘Motion’) filed on 3rd March, 2010 by Ketan Lawyers for and on behalf of the plaintiff/applicant (‘applicant’). The application is opposed by the first to the fifth defendants/respondents (‘respondents’).
   

Background

2. The matter was first mentioned before me on 3rd March, 2010 by Notice of Motion filed on 16th November, 2009 by Ketan Lawyers. At the hearing of that Motion, Mr Carl did not make appearance which then resulted in the Court dismissing the matter for want of prosecution and for non-appearance by Counsel. This was done on application by the respondents’ Counsel, Mr Liosi.
   
3. Immediately thereafter, on the same day, Mr Carl filed the Motion now before me and appeared before His Honour Justice Kandakasi on 4th March, 2010. However, His Honour directed that he appear before me to make the application, as is provided under Rule 19(4)(1)(2) of the Motions (Amendment) Rules 2005.
   
4. On 5th March, 2010, Mr Carl appeared before me to move the Motion, however, because Mr Liosi had not been advised, I directed that he do so, to advise Mr Liosi of the adjourned date which was 10th March, 2010 and to file an Affidavit of Service to that effect.
   
5. When the application was moved, I raised the issue of whether the application should be moved, considering;
   
   • - the Motion being moved, was in the similar terms to the Motion that I had dismissed for want of prosecution on 3rd March, 2010;
     
   • - whether applicant’s Counsel should firstly apply to set aside those Ex parte Orders.
     
6. Both Counsel made submissions which I then adjourned to consider.
   

Analysis of evidence and the law

7. I adjourned to consider that issue because I noted the practice now before this Court where lawyers are quick to file same applications after ex parte dismissals without firstly moving to set aside those Ex parte Orders, sometimes done at the prompting of the Court.
   
8. Mr Carl was of the view that he need not apply to set aside the ex parte order because O.12 r.7(1) of the National Court Rules (‘NCR’) provides that a matter that was not heard on the merits, is not Res Judicata. He submitted this relying on several authorities which I refer to below.
   
9. Firstly, O.12 r.7(1) of the NCR reads;
   

"(1) Where under these Rules, the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns the whole or any part of any claim for relief, the order for dismissal shall not, subject to any terms or conditions on which the order for dismissal is made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings."

10. I accept the position at law that when an order to dismiss is made for want of prosecution, and more particularly, where it is made ex parte and the Court did not hear and consider submissions on the merits of the matter, that it is not a decision on the merits and therefore, it does not operate as Res Judicata. (See Hami Yawari v. Anderson Agiru & Ors EP 46 of 2007 where Sevua .J cited Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Jim Trading Limited v. Him Maddison & Ors, WS 145 of 2003). I also agree that a second action for the same relief can be sought, based upon the same facts against the same party, provided it is within the statutory time limits (Newmont v. Laverton Nickel NL (2) [1981] 1 NSW LR 221 cited by David .J in Danny Totamu v. Small Business Development Corporation WS 768 of 1998 dated 7th May, 2009).
    
11. However, the issue is in relation to the existence of the ex parte order to dismiss which is a valid order. In the event a party decides to file a Motion in the same terms as the Motion that was earlier dismissed, he is forgetting the fact that he has yet to deal with the dismissal Order. Order 12 r.8 of the NCR provides for applications to set aside and which applications can be filed before the entry of judgment or after the entry of judgment. And Rule 19(4)(1)(2) of the Motions (Amendment) Rules 2005 is also relevant and applicable.
    
12. I note the authorities tendered to the Court by Mr Carl which are Danny Totamu v. Small Business Development Corporation (supra) and Samatoto Ltd & Anor v. Pacific Perfumes Ltd N1966 dated 12th April, 2000. In those cases, the both Judges did not consider applications to set aside orders that had been dismissed, ex parte. They were only considering similar applications that were filed after earlier similar applications had been dismissed. In those applications before those Judges, they were reconsidering whether the matter being argued again, was Res Judicata when it was dismissed. The Court did not consider the issues that I now raise.
    
13. Additionally, the Motions (Amendment) Rules of 2005 specifically provide for the setting aside of orders made ex parte. Rule 19(4)(1)(2) provides that an application to set aside ex parte order, shall be made inter party before the same Judge who made the ex parte order. It also provides that where a Judge who made the ex parte order is unavailable, the application may be made before another Judge. This Rule reads;
    
    • (4) Application to set aside ex parte orders.
      
      • (1) An application to set aside ex parte orders shall be made inter parties before the same Judge who made the ex parte order.
        
      • (2) Where the Judge who made the ex parte order is unavailable, the application may be made before another Judge."
        
14. Obviously, this Rule was created to cater for situations of this nature where ex parte orders were made to dismiss proceedings for want of prosecution. An application to set aside must be filed and dealt with first. As I said, although this is a Notice of Motion, the same applies to proceedings that are dismissed for want of prosecution. Lawyers, in those situations, will have to firstly apply to set aside those ex parte orders before filing similar applications. It does not make sense that after a dismissal of a Notice of Motion, a lawyer can immediately refile the same Motion without firstly applying to set aside the existing ex parte order.
    
15. Ideally, this is what should be done after a dismissal order is made.
    
    • (i) The affected party must file application to set aside the ex parte order to dismiss Motion or proceeding;
      
    • (ii) If application to set aside is granted, applicant can file application seeking the same or similar orders.
      
    • (iii) If application to set aside is refused, applicant cannot file the same or similar application or proceeding.
      
16. This is logical because it prevents parties from running to Court to refile the same applications or proceedings without firstly dealing with the good, valid order to dismiss. It also prevents parties from abusing the process of the Court where they, through their neglect or failure or whatever reason, fail to turn up at Court to prosecute the Motion or proceedings with due diligence, resulting in the application or proceedings being dismissed. Again, they must firstly file and move the application to dismiss, then take it from there, rather than immediately file the same application without firstly dealing with the valid order to dismiss.
    
17. In this case, the Motion filed by Ketan Lawyers is in the same or similar terms as the Motion that I dismissed on 3rd March 2010. The applicant must firstly apply to set aside those Orders. If granted, he can then file application in the same or similar terms as the Motion that was struck out or dismissed earlier. An applicant cannot just come to Court and file another application in same or similar terms without firstly dealing with the order to dismiss.
    
18. Therefore, I will again dismiss the Motion filed on 3rd March 2010 with directions that Ketan Lawyers apply firstly to set aside my earlier Orders of 3rd March, 2010, unless of course they wish to take other steps, more particularly in relation to the referral of this matter to the Listings Court for directions to be issued with a view to setting the matter down for trial.
    
19. In the exercise of my discretion, I will make the orders stated above.
    

Formal orders

20. The Court orders that;
    
    • (1) The second Notice of Motion filed by Ketan Lawyers on 3rd March, 2010, is dismissed;
      
    • (2) The plaintiff shall pay the first to fifth defendants’ costs of the application on a party/party basis, to be taxed if not agreed;
      
    • (3) The applicants have liberty to apply to set aside the Court’s earlier Orders of 3rd March, 2010, but on 3 days notice to the first to the fifth defendants’ lawyers.
      

Ketan Lawyers: Lawyer for the Plaintiff/Applicant
Liosi Lawyers: Lawyer for the First to the Fifth Defendants
No appearance for and on behalf of the Sixth Defendant