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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
BETWEEN
TANIKE PAULUS
Plaintiff
AND
TONY ABIO
First Defendant
AND
SAI BUSINESS GROUP
Second Defendant
Lae: Murray, J
2020: 28th February
PRACTICE & PROCEDURE - Application to set aside ex parte order - Dismissal of proceeding for want of appearance - Whether National Court has jurisdiction - Lack of jurisdiction - Application misconceived - Application dismissed - National Court Rules - Order 12, rule 8.
Cases Cited:
Wawoi Guavi Timber Company Ltd & 5 Ors vs. John Molu (2016) SC1514
Thomas Barry vs. Joe Luma & 3 Order (2017) SC1639
National Superannuation Fund Ltd. vs. Yawenoik Holdings Ltd & 11 Ors (2018) SC1709
Counsel:
Mr. T. Berem, for the Plaintiff
No Appearance, for the Defendants
DECISION
Background
2. A background to this application is best illustrated through a chronology of events. Plaintiff instituted this proceeding on 27th July 2004 in person for recovery of money he loaned to the Defendants on 20th October 2003.
3. On 9th August 2005, he engaged the services of Habuka Lawyers.
4. On 24th August 2005, the Plaintiff applied for and was granted Default Judgment in the sum of K78, 801.00 with interest.
5. On 9th June 2006, following a successful application by the Second Defendant, the Default Judgment granted on 24th August 2007 was set aside and it was granted leave to file its defence which it did on the same date.
6. On 10th July 2006, the Plaintiff through his lawyers Habuka Lawyers filed his Reply to the Second Defendant’s Defence.
7. On 11th February 2012, 6 years later, a Notice to Appear on 21st March 2013 and to “Show Cause” why the matter should not be summarily determined was sent to the Plaintiff by the National Court Registry.
8. On 21st March 2013, after satisfying itself that the matter should not be summarily determined, the Court removed the matter from the Summary Determination list and adjourned it for Directions Hearing.
9. On 3rd May 2013, Manu & Associates Lawyers entered n appearance to act for the Plaintiff.
10. On 10th September 2014, a Notice to set down for Trial was filed by the Plaintiff himself.
11. On 13th March 2015, Manu & Associates Lawyers filed a Notice Ceasing to Act for the Plaintiff.
12. On 17th August 2015, Kaore & Associates on behalf of the Plaintiff filed a Notice of Motion seeking Summary Judgment. That Motion was later dismissed on 6th November 2015, after it was adjourned several times for non-appearance by the Plaintiff’s Lawyer.
13. On 24th January 2017, Kaore Lawyers who were then still acting for the Plaintiff, were advised that the matter was fixed for Direction Hearing on 7th February 2017.
14. On 7th February 2017, there was no appearance by the Plaintiff nor his lawyer. As a result, the Court listed the matter for Summary Determination the second time on 15th February 2017 and directed the Assistant Registrar to notify the Plaintiff.
15. On 10th February 2017, as directed by the Court, a letter was sent by the National Court Assistant Registrar to Kaore Lawyers who were still the Plaintiff’s lawyers specifically informing them of the Court Directions of 7th February 2017 that, the matter was listed for Summary Determination on 15th February 2017.
16. On 15th February 2017, after noting there was no appearance by the Plaintiff’s Lawyer and the Plaintiff himself, the Court dismissed the proceedings.
17. On 18th August 2017, the Plaintiff himself filed his application to set aside the orders of 15th February 2017 dismissing his proceeding. Whilst that was still on foot, Kusip Lawyers who entered on appearance on behalf of the Plaintiff on 7th June 2018 filed another Notice of Motion seeking same orders.
18. On 13th September 2019, Kusip Lawyers filed a Notice of Ceasing to Act for the Plaintiff.
19. On 22nd January this year, Berem Lawyers filed a Notice of Change of Lawyers and after numerous adjournments of the Plaintiff’s application seeking to set aside the orders of 15th February 2017, Mr. Berem finally moved the application before me, ex parte, after I was satisfied that the Defendants were notified of the hearing date. I heard the application and reserved my decision.
20. This is my decision. The Plaintiff’s application is moved by way of the Notice of Motion filed on 18th June 2018. The application filed by the Plaintiff in person on 18th August 2017 was at the commencement of hearing on 10th February 2020, withdrawn with leave of Court.
21. The application is moved pursuant to Order 12 Rules 1 & 8 (1) – 3 of the National Court Rules and is supported by the Plaintiff’s affidavits filed on the following dates:
22. The main issue for my determination is whether the Plaintiff’s application to set aside the ex parte orders of 15th February 2017 that dismissed the entire proceedings should be set aside. However, in the course of hearing Mr. Berem’s submission,
a preliminary issue as to jurisdiction arose. The preliminary issue being: whether this Court has jurisdiction to entertain an
application to set aside dismissal orders under Order 12 Rule 8. This is the issue I must determine first.
If I find, I have jurisdiction, I will then proceed to determine the main issue. However, if I find this Court has no jurisdiction,
that would be the end of the matter.
Does this Court have the jurisdiction to entertain this application under Order 12 Rules 1 & 8 of the National Court Rules. This is a threshold issue.
23. Having regard to three (3) different Supreme Court cases which the Plaintiff submits dealt with this issue, it is the Plaintiff’s further submission that this Court has power under Order 12 Rule 8 to consider and set aside the ex-parte orders of 15th February 2017. The three (3) Supreme Court cases cited by the Plaintiff are:
24. I have had the benefit of reading all three (3) Supreme Court cases.
25. In Wawoi Guavi Timber Co. Ltd vs. John Molu (2016) SC 1514, it was held that: a National Court can, on an application under Order 12 Rule 8 of the National Court Rules set aside its own orders that dismissed the proceeding for Warrant of Prosecution. Order 12 Rule 8 is not limited to interlocutory matters. The appeal in that case was against a National Court decision that set aside its own ex parte order.
26. On the other hand, the case of Thomas Barry vs. Joel Luma (2017) SC 1639, stand for the proposition that, an order of the National Court that dismissed a proceeding is a final order. The National Court
has no power to set aside or vary a judgment/order for dismissal of proceedings.
The process of setting aside/varying is an interlocutory process. A Notice of Motion is only an interlocutory process. It can only
be used whilst a substantive proceeding is current. It cannot set aside a dismissal order which is final. The only avenue available
is to lodge an appeal.
27. This is a total contrast to the position taken by the Court in Wawoi Guavi.
The appeal in that case was an appeal against a National court decision that refused to hear and determine an application to set aside
its own ex parte decision that dismissed the National Court proceeding.
28. The third Supreme Court case cited by the applicant; is the case of National Superannuation Fund Ltd. vs. Yawenoik Holdings Ltd (2018) SC 1709.
This was an appeal against a National Court decision that dismissed the Appellant’s application to set aside an order dismissing
the Appellant’s proceeding in the National Court for non-appearance.
This Supreme Court judgment can be distinguished from the other two (2) Supreme Court Judgments in that, unlike the other two (2)
cases, this one did not specifically consider whether the National Court can still consider an application brought under Order 12
Rule 8, to set aside an order dismissing the proceeding.
29. In the circumstances, I am of the view the Supreme Court case of National Superannuation Fund is not on point and therefore not applicable to the present case.
30. On the other hand, the Supreme Court cases of Wawoi Guavi and Thomas Barry are directly on point and applicable. However, the problem is, they are in conflict. This then gives rise to the question, Which decision should this Court follow?
31. Where there is a conflict between two (2) decisions of the Supreme Court by co-equal Benches, the last in time rule applies. In this case, it would be the decision in Thomas Barry that would apply.
32. Having regard to the decision in Thomas Barry and the principles it stands for, and applying it to the present case, I find I do not have jurisdiction under Order 12 Rule 8 to hear an application by way of a Notice of Motion to set aside the order of this Court made on 15th February 2017 dismissing the entire proceeding, for the reason that there is no current proceeding to bring the application. The application is misconceived. The only avenue available to the Plaintiff is to file an appeal to the Supreme Court.
Conclusion
33. As I have determined that I do not have jurisdiction to consider the application, that is the end of the matter.
Order
34. Order of the Court:
_________________________________________________________________
Berem Lawyers: Lawyer for the Plaintiff
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URL: http://www.paclii.org/pg/cases/PGNC/2020/488.html