N5088

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 759 OF 2008

BETWEEN:

RABAUL SHIPPING LIMITED
Appellant/Defendant

AND:

BLAISE POKAS
Respondent/Complainant

Kokopo: Lenalia; J.
2012: 11th December
2013: 4th February

PRACTICE & PROCEDURE – Injunctions – A Application to set aside ex parte orders – Order 12 Rule 8 of the National Court Rules. 

PRACTICE & PROCEDURE – Application to set aside ex parte injunctive relief – National Court Jurisdiction – Section 155(4(5) of the PNG Constitution
 
PRACTICE & PROCEDURE – Substantive declaratory orders sought – No arguable case – Application to set aside refused. 

Case cited:

Mainland Holdings Limited -v- Paul Robert Stobbs & 3 Ors (2003) N2522. Burns Philp (New Guinea) Limited-v-Maxine George [1983] PNGLR 55
General Accident Fire & Life Assurance Corporation Ltd-v-Ilimo Farm Products Pty Ltd [1990] PNGLR 331.
East Arowe Timbers Resources Limited & 3 Others-v-Cakara Alam (PNG) Limited

Counsel:

Ms. J. Marimbu, for Applicant/Defendant 
No appearance for Respondent/Complainant 

4th February, 2013

1. LENALIA, J: The defendant company is seeking orders to set aside ex parte orders made by Kawi, J sitting in Buka on 20th July 2012. The order related to dismissal of an appeal in proceedings OS.No.759 of 2008. 

2. What happened in this case was, there was a pending appeal in relation to judgment orders made in favour of the Respondent/Complainant made by the District Court in Buka on 16th October 2008. The Applicant/Defendant was the First Defendant and Henry Mamang, John Vaiki and Joe Katsin were Second Defendants.

3. After the case was heard, the presiding magistrate His Worship Mr. Bruce Tasikul made six (6) orders. In order 1 and 2, the court found that the complainant had locus standi to sue the defendants and the First Defendant was vicariously liable for the actions of the Second Defendants because they were employees of the First Defendant.

4. The 3rd order was an order for the Defendant/Appellant to pay a total of K2,730.00 for the loss the complainant suffered with the interest rate of 8% which then was K218.40 and the legal costs of K2,592.00. The total amount ordered against the now Applicant/Appellant was K5,540.40 to have been paid forthwith.

5. The Applicant/Appellant appealed against the decision of the District Court. They lodged their Notice of Appeal and Recognisance of Appeal on 13th November 2008.

6. On 18th July 2012, Tamusio & Associate Lawyers filed a Notice of Motion in the National Court Registry Office in Buka in which they sought orders that the entire appeal proceedings be dismissed for want of prosecution and the second order was for the complainant to pay costs.

7. Following the above, Ms. Marubu filed the Notice of Motion on 2nd November 2012 in which she sought the following orders:

1. An order that His Honour Justice Kawi's orders made on 20th July 2012 in the National Court at Buka, be set aside pursuant to Order 12 Rule 8(2) of the National Court Rules.

2. An order that the costs of these proceedings be met by the Respondent's Lawyer Mr. Thomas Tamusio.

8. The application was argued before me on 11th December and I reserved the ruling. I now deliver the decision on Appellant/Defendant Motion. On arguing their application, Ms. Marubu of counsel for the Appellant /Defendant spoke to her written submission by referring to her affidavit in support of the application.

9. The application first came before me on 7th December Motions Day. Since the lawyer for the Respondent/Complainant was not present, this Court directed that, Ms. Marubu was to contact Mr. Tamusio through the Public Solicitor's Office in Buka. Ms. Marubu's attempts to contact that lawyer failed.

10. Ms. Marubu's argument is that various things happened and so the appeal could not be prosecuted in time. Certain correspondences were exchanged between Tamusio Lawyers office and the office of the Appellant/Defendant but they turned out futile. Most of such correspondences took place in 2012.

11. Counsel argued that, the orders granted by the National Court sitting in Buka on 20th July 2012 were irregularly entered and they should be set aside. The application is made pursuant to Order 12 Rule 8(2)(b) of the National Court Rules, it says:

 "8. Setting aside or varying judgement or order. (40/9)
 
(1)	The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

 (2) The Court may, on terms, set aside or vary a judgement—

 (a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or

(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

 (c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order—
 
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
 
(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order."

12. It is established law that in order for this Court to set aside the orders made by another National Court Judge or even orders by myself an applicant has to satisfy the Court on a number of factors. 

13. The principles established for setting aside ex parte injunctive orders which is not the case on the current application may not be appropriate on the instant application. (See Mainland Holdings Pty Ltd & Ors-v-Paul Stobbs & Ors (2003) N2522, East Arowe Timbers Resources Ltd & Ors-v-Cakara Alam (PNG) Ltd, & Ors (2008) N3270). 

14. Since the application before me is to set aside the ex parte orders which the Court dismissed the proceedings for want of prosecution, the Applicant/Defendant has to satisfy this Court what irregularities were committed by the Court that dismissed the appeal for want of prosecution. 

15. This Court has not been afforded a copy of the judgment by the Court dismissing the appeal for want of prosecution. This Court cannot assume anything as assumptions cannot be accepted as evidence but I am sure that the presiding Judge had considered the principles of dismissing appeals in cases such as Burns Philp (New Guinea) Limited-v-Maxine George [1983] PNGLR 55 or the case of General Accident Fire & Life Assurance Corporation Ltd-v-Ilimo Farm Products Pty Ltd [1990] PNGLR 331.

16. I am only required to determine what erroneous considerations were made by the presiding Judge. Taking in to account the fact that the appeal was filed in 2008, His Honour could have considered the long delay taken to prosecute the appeal. 

18. The final point I wish to raise is, according to Order 4 Rule 49(19)(4)(1) of the National Court Rules (as amended by the Motions (Amended) Rules 2005, the application to set aside should have been made inter partes before the same Judge who made the orders. That provision states:

"An application to set aside ex parte order shall be made inter partes before the same judge who made the ex parte order." 

17. It is for these reasons that, I am not satisfied with the explanation by counsel for the Appellant/Applicant that their office attended to the appeal expeditiously. Since there is no reasonable explanation as to what was erroneous about the dismissal order, I refuse this application with orders for the Appellant/Defendant to meet their own costs. 
_______________________________________________________________
Ms. Maribu: Lawyer for Applicant