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Matufi (PNG) Ltd v Pulie Anu Timber Company Ltd [2017] PGNC 328; N7024 (20 November 2017)

N7024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 642 of 2017

MATUFI (PNG) LIMITED

V

PULIE ANU TIMBER COMPANY LIMITED

AND

THE PNG FOREST AUTHORITY
Kimbe: Miviri AJ
2017 : 17^th November

PRACTISE & PROCEEDURE- Plaintiff/Applicant seeking dispensation requirements of service - Order 1 rule 7 National Court Rules - leave to proceed ex parte-notice of intention to defend on court file - leave to proceed ex parte not granted - proceed inter party.

Cases cited:

Credit Corporation Pty ltd v. Jimendi Enterprices Pty Ltd [1991] PGSC 18; SC 419.

Public Officers Superannuation Board v. Imanakuan (2001) SC677

Rural Development Bank v Laka [2007] PGSC 7; SC897.

Counsel:

J.J. Lome, for plaintiff applicant

No appearance, for defendants

RULING

20^th November, 2017

1. MIVIRI, AJ: This is the ruling of the court on an application by motion for leave to move the motion ex-parte, when a notice of intention to defend is on the file by the second defendant.
   
2. The substantive matter is OS 642 of 2017 the parties to the proceeding are the same as in the motion, importantly there are two defendants. It was filed 7^th August 2017 dated the 1^st August 2017. On the file court document number 06 is notice of intention to defend filed the 20^th October 2017 by the Legal Section of the Papua New Guinea Forest Authority headquarters Frangipani Street Hohola section 35 Allotment 32 Po. O. Box 5055 Boroko NCD telephone 327 7833 and facsimile 325 4433. The Notice is filed by Seri Mitige the in house lawyer for the second defendant duly signed sealed as part of the court documents.
   
3. This defendant intends to defend this matter and the plaintiff/applicant is aware because that is court document number 06 on the court file OS 642 of 2017. The date of the notice is 20^th October 2017 today is the 17^th November 17 almost 4 weeks.
   
4. He has no materials filed as to why he seeks to move ex-parte. That is materials in accordance with Order 4 rule 38 (2) that there would be undue delay and other mischief would befall the applicant. Or that there is consent from the parties for him to move as he seeks ex parte. And this is borne out by rule 38 (3) which specifically gives the exception that leave of the court must be obtained and that the motion be moved at a date fixed for the hearing of motions.
   
5. In order words there is no material before me to say that despite the notice of intention to defend filed 20^th October 2017 the defendants have done nothing further. It is clear that the document is numbered from the Kimbe court registry evidencing that the defendant at least the second defendant has been in attendance on the matter.
   
6. In the court file document number 05 is an affidavit of service by Jacob Wale legal clerk of Jefferson Lawyers who deposes to have served on behalf of the plaintiff the originating summons filed 7^th August 2017, the notice of motion filed 07^th August 2017, affidavit of Leonard filed also the 7^th August 2017, and an undertaking as to damages filed the 07^th August 2017. And it was served on Morolkupu the admin assistant for the PNG Forest Authority at their office with a letter dated the 11^th August 2017 which enclosed the subject documents. Which brought the response from the second defendant in the notice of intention to defend.
   
7. The same cannot be said of the first defendant because nothing similar has been filed that he has been served as was the second defendant. That is the most probable reason why he does not have a notice of intention to defend filed because he has not been served the proceedings OS 642 of 2017. Clearly the interests of justice and the impact on him without hearing him will be detrimental to his cause because the proposed orders sought seek to restraint him on his business which effects would be substantial no doubt. Which is not remedied by the undertaking as to damages filed.
   
8. In all fairness to the defendants the Constitutional rule of natural justice section 59 must be heeded to that the proceedings must be fair and would not be so, if one of the parties have not been given notice or been heard; Credit Corporation Pty ltd v Jimendi Enterprises Pty Ltd [1991]PGSC 18; SC 419. Even though the notice of intention to defendant is by the second defendant it is important to cover fairness that the first defendant is also heard as the matter involves all the parties as set out in the notice of motion when the orders sought are canvassed from top to bottom.
   
9. There is only service of the proceedings OS 642 of 2017 on the second defendant and not on the first defendant and to be granted leave to move the motion exparte would in my view be unfair on the first defendant having not been served at all including the second defendant. Service under the rules will cure, Public Officers Superannuation Board v Imanakuan (2001) SC677; Rural Development Bank v Laka [2007] PGSC 7; SC897.
   
10. I consider that the affidavit material filed of Leonard Ng dated the 1^st of August 2017 filed the 7^th August 2017 does not add to further the case of the plaintiff applicant to have the case heard ex-parte. It does not set out what particulars set out in Order 4 rule 38 (2) and (3) and leaves a lot more to be canvased to way the discretion to grant leave to move exparte.
    
11. I am not satisfied that, that has been demonstrated here to the balance required in law here and accordingly, I refuse leave to move the application ex-parte. I direct that service be effected by the applicant in accordance with the rules on the first Defendant and that together with the second defendant they both be advised as to the date when the motion is next set in consultation with the registry of the court. And both plaintiff/applicant and defendants must properly come before the court to move the proceedings filed.
    
12. Leave to move the motion ex parte is refused.
    

Orders Accordingly.

__________________________________________________________________

Jeffersons Lawyers : Lawyer for the Plaintiff Applicant

No appearance for the Defendant