N4913

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 169 OF 2010

BETWEEN:

MICHAELINE WANINARA
Appellant

AND:

MARIAN OMI
Respondent

Kimbe: Kawi, J
2011: 8th April

CIVIL PRACTICE AND PROCEDURE- Appeal from District Court to the National Court-Appeal against an ex parte ruling of the Kimbe District Court – What is meant by ex parte hearing- Allegations of malicious and unfair hearings –Allegation of no opportunity being given to appellant to present her case- Appeal grounds without merit- entire Appeal dismissed with costs to respondent
 
The appellant lodged an appeal to the National Court against an ex parte ruling of the Kimbe District Court. The appellant contended that she was not given an opportunity of being heard when the learned magistrate proceeded ex parte. It was further contended that by proceeding ex parte, the learned magistrate was biased and malicious in his deliberations: 

Held:

(1)	An ex parte proceeding occurs when not all parties in a court proceedings are present or given the opportunity to be heard. It is usually adopted and followed when a party in a court proceeding in court continuously absents himself/herself without good reasons or lawful excuses from attending the court case on the times fixed for the hearing of the court case.

(2)	Usually when a party so absents herself/himself without good reasons a magistrate concerned can proceed to hear and determine a court case in the absence of the defaulting party.

(3)	In an ex parte hearing the court will usually hear and receive evidence and submissions from the party present. The party not present is however not without remedy. Section 25 of the District Courts Act provides for a party affected to apply to the Court to set aside the orders or any adjudication made in his or her absence. Here Court depositions show that the appellant did make an application to set aside the ex parte orders, but this was refused by the learned magistrate. 

(4)	Malicious in law means having a reckless disregard of the law or of a person's legal rights. And the onus is upon the appellant to show how the learned magistrate had a careless or reckless disregard for the legal rights of the appellant. Here the appellant could not pinpoint to any of her legal rights which were recklessly disregarded when the Court conducted an ex parte hearing.

(5)	The ex parte procedure under the District Courts Act can be seen as a tool of case management. Rather than clogging up the system of file and case management by continuous adjournments and delays, the ex parte procedure helps in the effective disposal of Court cases.

Cases cited

There are no cases cited in this judgement.

Counsel

Mr Doko Kari, for the Respondent
Appellant in Person 

8 April, 2011

1. KAWI J: This is an appeal against the ex parte orders made by the Kimbe District Court on the 13th July 2010.

The District Court Decision

2. On the 13th of July 2010, the District Court made an ex parte order in favour of the respondent, Marian Omi – wherein His Worship ordered that the appellant, "Michaeline Waninara pay Marian Omi, the sum of K5,000.00 and further the said "Michaeline Waninara is given one month to pay the sum of K5,000.00 to Marian Omi with the 13th of August 2010 being the deadline.

Grounds of Appeal

3. Being dissatisfied with these orders the appellant filed an appeal to the National Court citing the following grounds:

(1)	The learned magistrate erred in law and in fact when he made the Orders without having the benefit of the necessary documents, information and evidence before him which could have revealed otherwise that the ex parte Order was made without reasonable care.

(2)	The learned magistrate erred in law and fact when he made ex parte orders without allowing, and or giving the appellant an opportunity to either allow her time to present her defence verbally before the court or to submit defence leading to unfairness in his decision.

(3)	The learned magistrate in the same manner as above, had failed to allow or give the appellant an opportunity to reply to the sworn affidavit of the respondent, either verbally before the court or in writing and in doing so had denied the appellant the right to defend herself.

(4)	The decision therefore is malicious, biased and unfair.

(5)	The learned magistrate erred in law and fact when making the Orders, failed to ascertain whether the court process was properly conducted and carried.

(6)	The decision and Orders of the learned magistrate of the 22nd September 2010 is contrary to the principles and spirit of our National Constitution, pursuant to Section 37(1)(3)(4)(5) and (6) as being harsh and oppressive or is not warranted by or disproportionate to the requirements of the particular circumstances or of the particular case.

(7)	The learned magistrate erred in law by totally misleading the court and is an abuse of the court process and natural justice.

4. The court finds that all the grounds of appeal especially grounds 1-7 all raise the same issue or complaint. That the appellant was not given an opportunity to be heard in her own defence before the case was heard ex parte and orders made in her absence.

5. This raises the question of whether or not the appellant was given an opportunity to be heard at all. Whether she had that opportunity at all as to know just what was happening to her case.

6. The District Court depositions show that both the complainant, Marian Omi and the defendant, Michaeline Waninara appeared for the mention of this case as a fresh complaint before His Worship, Mr Terra Dawai in the Kimbe District Court on the 6th May 2010. Both parties were in attendance in court when the learned magistrate adjourned the case to the 20th May 2010 for further mention.

7. Again on the 20th May 2010, the case was further mentioned in court. Again the depositions show that both parties were present. The case was then adjourned to and mentioned on the 8th June 2010. Both parties did not appear in court that day. As a result of their non appearance, the case was then adjourned to the 10th of June 2010 for further mention.

8. On the 10th June 2010, there was still no appearance by both parties. The matter was then adjourned to the 30th June 2010 for further mention before his worship, Mr Terra Dawai.

9. On the 30th of June 2010, there was an appearance by Marian Omi in court. There was no appearance by the Respondent, Ms Michaeline Waninara. As a result of her non-appearance, the court adjourned the case to the 6th of July for hearing. Again on the 6th of July 2010, there was no appearance by the respondent. The complainant did however appeared in court to prosecute her case. 

10. Again the respondent's non-appearance forced the court to once again adjourn the case to the 13th July 2010 for hearing. On the 13th of July 2010, the complainant turned up to prosecute her case. There was still no appearance by the defendant, Michaeline Waninara. As a result of the defendant's continuous non-appearance the learned magistrate conducted an ex parte trial. Having satisfied himself on the evidence adduced, the learned magistrate found in favour of the complainant and awarded K5,000.00 in damages to be paid within a month as from the date of the orders which is the 13th July 2010.

11. The appellant argues that she was never given an opportunity to be heard in her own defence. In my view giving a party an opportunity to be heard and being actually heard are two completely different matters. They are not one and the same.

12. I find that the District Court did give the appellant an opportunity of being heard commencing with her appearance along with that of the complainant before the District Court initially on the 6th of May 2010. Then on the 20th May 2010 where the depositions show that both parties were present in court for further mention. The court then adjourned the case to the 8th June 2010. Both parties knew or ought to have known the status of this case especially the appellant, Michaeline Waninara. Even if the appellant had not known that her case was now adjourned to the 8th June 2010, it was incumbent upon her to make attempts by checking out the Clerk of the District Court as to the status of her case. Here the appellant did not take any proactive steps to follow up the status of her case with the District Court Clerk.

13. The court finds that the appellant was either being too lazy or just quite negligent in following up on the status of her case. She was expecting someone else to tell her of the status of the case. I find that she displayed a no care and an indifferent attitude in following up and checking out the status of her case. Had she been diligent enough she would have discovered the status of her case. She was the defendant in the proceedings and it was more pressing upon her to check with the District Court, rather than waiting and expecting someone to tell her. The learned magistrate quite correctly proceeded to hear the case ex parte rather than adjourn the case again and again. 

14. In my view the ex parte procedure under the District Courts Act can be seen as a tool of case management. Rather than clog up the system of file and case management by continuous adjournments, I find that the ex parte procedure helps in the effective disposal of Court cases.

15. I do not find any errors committed by the learned magistrate here. Furthermore I cannot find any unfairness committed by the learned magistrate either procedural or substantive unfairness when it was the appellant herself who continuously absented herself without good reasons from attending court and forcing the learned magistrate from taking the course which he finally did. I would therefore dismiss appeal grounds 1, 2 and 3. 

16. Ground No. 4 alleges that by proceeding ex parte, the decision of the learned magistrate was malicious, biased and unfair in the circumstances. Malicious in law means reckless disregard of the law or of a person's legal rights. And the onus is upon the appellant to show how the learned magistrate had a careless or reckless disregard for the legal rights of the appellant. Here the appellant could not pinpoint any of her legal rights which were recklessly disregarded when the Court conducted an ex parte hearing.

17. Under the District Courts Act, a magistrate can proceed ex parte to hear and determine a case. Here that procedure was adopted and followed when the appellant consistently absented herself without giving any good reasons or explanations for her continuous failure in appearing to defend herself. I therefore cannot see how the learned magistrate was malicious or biased and unfair in his decision. The appellant did not show how the magistrate was biased and unfair in his decision. Furthermore she did not show how the magistrate's decision is "malicious" ie the learned magistrate disregarded the legal rights of the appellant. Moreover the appellant cannot pinpoint to any of her legal rights which she says were breached when the learned magistrate conducted an ex parte hearing. 

I would therefore dismiss Ground No. 4 as being without merit.

18. Ground No. 5 questions whether or not the Court process was properly conducted and followed. In my view the District Court Act does provide for an ex parte procedure. An ex parte proceeding occurs where not all parties are present or given the opportunity to be heard. It is usually adopted and followed when a party in a court proceeding continuously absents himself/herself without good reason or lawful excuses from attending the court case on the times fixed for the hearing of the court case. Usually when a party so absents herself /himself without good reason a magistrate concerned can proceed to hear and determine a court case in the absence of a defaulting party. The court will usually hear and receive evidence and submissions from the party present. The party not present is however not without remedy. Section 25 of the District Courts Act provides for a party affected to apply to the Court to set aside the orders or any adjudication made in his or her absence. Here the Court depositions show that the appellant continuously absented herself from attending court without good reasons when she knew or ought to have known of the date of hearing. Consequently the learned magistrate decided to proceed in her absence and a decision was then made against her. After the ex parte decision was made against her, she had an opportunity to make an application to set aside the ex parte orders of the learned magistrate pursuant to section 25 of the Act. The learned magistrate in very detailed reasons which appears in the depositions refused to set aside the ex parte orders he made on the 13th July 2010. 

19. I therefore cannot see how the court process was not conducted properly or unfairly. Again this ground is without merit and is hereby dismissed. Ground No. 6 states that the actions of the learned magistrate to proceed ex parte is contrary to Section 37(1)(3)(4)(5) and (6) of the Constitution. In my view Section 37 of the Constitution provides for fairness of trial in criminal proceedings. It has nothing to do with a civil suit as in the present case. This ground is without merit and therefore dismissed. Ground No. 7 is also without merit. The appellant has not shown how ex parte proceedings, which is a procedure allowed under the District Courts Act amounts to an abuse of the court process and denial of natural justice. Because of the likely prejudice or possible apprehension of bias on the part of the magistrate who heard the case ex parte, section 25 of the District Courts Act provides for a party affected to be given an opportunity to be heard by making an application to set aside the orders or adjudication made ex parte. The appellant here did apply to have the ex parte orders set aside. But the learned magistrate refused to set aside the ex parte orders. The Court finds that the appellant was given every opportunity of being heard. She cannot now turn around and argue that the learned magistrate was unfair or biased in conducting the proceedings ex parte.

20. In the end the entire appeal is hereby dismissed as being without merit. The ex parte orders of the Kimbe District Court are hereby confirmed and the appellant is ordered to pay the complainant K5,000.00 in damages within one month. Costs of the appeal is awarded to the respondent, Marian Omi.

Order

21. Pursuant to Section 231 of the District Courts Act, the findings and orders of the learned magistrate are confirmed and the appellant, Michaeline Waninara is hereby ordered to pay the respondent Marian Omi the amount of K5,000.00 within one month from the date of this Order. Costs of this appeal is awarded to the respondent, Marian Omi.

____________________________________________________
The Appellant in person
Public Solicitor: Lawyer for the Respondent