N11147
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA (APP) 22 OF 2024 (IECMS)

BETWEEN:
JACOB NANE & OCCUPANTS OF Allotment 88, Section 484 Hohola (Rainbow), NCD
Appellants

AND: 
LAWRENCE OPA
Respondent

WAIGANI:  PURDON-SULLY J
10 DECEMBER 2024; 7 FEBRUARY 2025

APPEAL - PRACTICE & PROCEDURE – appeal dismissed for want of prosecution, non-compliance with court order and non-appearance of Counsel for Appellant on two occasions –party is at liberty to apply to the National Court to set aside judgments or orders made in his or her absence – relevant principles applying to setting aside judgments or orders made ex parte to apply – failure to provide adequate explanation for non-attendance and non-compliance with Court orders – merits of the appeal do not suggest that the justice of the matter favours setting aside the order and reinstating the appeal - National Court Rules, Order 12 Rule 8(3) 

PRACTICE & PROCEDURE – filing of the Entry of Appeal on the same day as Notice of Appeal an abuse of process as appeal not ready for hearing

Cases cited
Cragnolini v Leia [2023] PGSC 112; SC2464
Kakas v National Housing Corporation (2020) SC2000
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Moses v Magiten [2000] PGNC 73; N2023

Counsel
Mr R Pokea for the appellant
Ms M Williams for the respondent 

DECISION

1.	PURDON-SULLY J:  This is my ruling on the Appellant’s Notice of Motion filed 8 August 2024 seeking to set aside an order made ex parte by this court on 12 July 2024 (the order), dismissing the Appellant’s appeal for want of prosecution and non-compliance with court directions.  The Appellants seek an extension of time for 21 days on receipt of documents from the District Court to enable the appellants to comply with orders of this court of 23 May 2024 requiring it to file an Appeal Book.

2.	The application is opposed by the respondent who seeks dismissal of the appeal and costs.

3.	By way of contextual background, by order of the District Court made on 21 December 2023 the appellants were summarily ejected from a property described as Section 484 Allotment 88 Hohola (Rainbow) NCD and required to deliver up vacant possession of the land within 14 days.  A Warrant of Possession issued and directed police to enter the property and remove the occupants if they failed to give vacant possession.

4.	On 19 February 2024 the appellants filed a Notice of Appeal which they then discontinued on 1 May 2024.

5.	On 18 May 2024 they filed the current appeal having sought dispensation and extensions of time from the court on 8 May 2024.

6.	On 23 May 2024 this court made orders in terms of the appellant’s Notice of Motion for stay of the District Court Orders.  The appellant was ordered to file an Appeal Book by or before 30 June 2024 with the matter then adjourned to 8 July 2024 at 9.30 am.

7.	On 8 July 2024 the matter was adjourned to 12 July 2024 by reason of the non-appearance of appellant’s lawyers, a Mr Opa appearing on behalf of his appellant brother.

8.	On 12 July 2024, there was no appearance by the appellant’s lawyer, Mr Opa, the appellant appearing in person.  It was not challenged that the Appeal Book had not been filed in compliance with the orders of this court of 23 May 2024. No explanation was before the court with regard to that failure.

9.	The court then dismissed the appeal on the basis of failure to prosecute the matter with due diligence, non-compliance with Order 2 of the Order of Justice Dowa of 23 May 2024 and the non-appearance of the appellants’ lawyer at the hearing and the hearing on 8 July 2024.

10.	The issue for determination is whether the order should be set aside and the appeal reinstated.

THE SUBMISSIONS

11.	It is submitted on behalf of the appellants inter alia that there has been no delay in bringing their application, a reasonable explanation has been provided to the court as to the non-appearance of the appellants’ lawyer and the non-compliance with the order to file an Appeal Book, that the material facts disclose that the appellants have an arguable case on appeal and the interests of justice require the reinstatement of the appeal and its expedition.

12.	The appellants rely upon the evidence of Mr Rickson Pokea and Mr Jacob Nane filed 8 August 2024.

13.	In his affidavit Mr Pokea deposes inter alia to the steps he took to prepare the Appeal Book and the difficulties he encountered with the Registry in obtaining court documents to that end.  He annexes written communications he sent to the Registry on 6, 11, 17, 19 and 25 June 2024, his personal attendances on the Registry and/or District Court on 14, 21 and 28 June 2024 and a phone attendance on 18 June 2024 (at [7] – [9] of his affidavit).

14.	He deposes to having to travel to Mt Hagen on 28 June 2024 on a family matter and his return flight on 7 July 2024 the day before the court hearing on 8 July 2024 having been cancelled. His rebooked a flight on 8 July did not arrive until 12 midday and that as “a result of the cancellation of my return flight, I was unable to attend court on 8 July 2024” (at [8] – [11] of his affidavit).

15.	He deposes to past difficulties obtaining court depositions from District Court clerks to the National Court which have delayed the hearing of an appeal (at [20]-[21] of his affidavit).

16.	With respect to his non-attendance at court on 12 July 2024 he deposes to “an attempt to attend court but by the time I arrived at Court room 4 the matter was already dealt with.” (at [14] of his affidavit).

17.	With respect to the merits of the appeal the appellant, Mr Nane, deposes to the District Court’s lack of jurisdiction to deal with the matter when the matter was before it, lack of evidence as to title and other proceedings purportedly relevant to the issue of title to the land, and other related court proceedings purportedly of relevance to the proceedings before the District Court (at [3] to [12] of his affidavit).

18.	It is submitted on behalf of the respondent inter alia that while the motion before the court was made promptly the appellants have not advanced a plausible explanation for their non-compliance with orders of this court to file an Appeal Book, failure to prosecute the appeal with due diligence or the failure for Counsel to attend court on 8 and 12 July 2024.  Further, it is submitted, the appeal lacks merit. 

CONSIDERATION
 
19.	The appellants’ motion to set aside the order is made pursuant to Order 4 Rule 49 (19)(4) and Order 12 Rule 8(3)(a) of the National Court Rules (the NCR).  Its application to extend time is made pursuant to Order 1 Rule 15 of the NCR.  

20.	Order 4 Rule 49 (19)(4) provides:

(4) Application to set aside ex parte orders. 

(1)	An application to set aside ex parte order shall be made inter partes, 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.

21.	Order 12 Rule 8 (3)(a) provides:

(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.

22.	Order 1 Rule 15 provides:

15. Extension and abridgement. (2/3) 

(1)	The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.
 
(2)	The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires. 

(3)	The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.

23.	The legal principles to be applied to set aside an order made ex parte are well settled in this jurisdiction. In Cragnolini v Leia [2023 PGSC 112; SC2464 the Supreme Court (Salika CJ, David J, Yagi J, Kassman J & Murray J) said at [31]-[32]

31.	In this regard, we note that the principles of setting aside an order obtained ex parte, irrespective of whether the ex parte order was made by the Judge hearing the motion to set it aside, are now well settled in this jurisdiction: Green & Co. Pty Ltd v Green [1976] PNGLR 73; Barker v The Government of Papua New Guinea (1976) PNGLR 340; The Government of PNG & Davis v Barker [1977] PNGLR 386; George Page Pty Ltd v Balakau [1982] PNGLR 140; Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Leo Duque v Avia Andrew Paru (1997) PNGLR 378; MVIT v Joseph Bure (1999) PNGLR 273; Christopher Smith v Ruma Constructions Ltd (2002) SC695 and Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321. The jurisdiction exercised under either Order 12 Rule 8 is in the discretion of the Court. The Court has an unfettered discretion: Evans v Bartlam [1937] AC 473. The rule gives the Court express power to set aside its own judgments or orders. These principles apply in applications to set aside default judgments or orders made in the absence of one of the parties in proceedings commenced by writ of summons as well as those commenced by originating summons: MVIT v Joseph Bure (1999) PNGLR 273; Christopher Smith v Ruma Constructions Ltd (2002) SC695.

32.	In order to be successful, it is incumbent upon the applicant to satisfy the Court:

1.	why the judgment or order was allowed to be entered in his absence;

2.	if there is any delay in making the application to set aside, provide a reasonable explanation as to the delay; and

3.	by affidavit stating material facts disclosing a defence on the merits or there is an arguable case.

33.	In Kakas v National Housing Corporation (2020) SC2000, the Court also applied the principle of interests of justice.

24.	In the present case, there was no delay in bringing the present application to set aside the order.  The following additional factors however cumulatively inform my discretion in the matter:

a.	The appellant’s lawyer has not afforded a reasonable explanation for the failure to file the Appeal Book as ordered and/or why, if he encountered difficulties with compliance because of Registry failures he did not then file an application in this court to extend time.  At the date of hearing in December 2024 the Appeal Book was still not filed.  Relevantly, there no evidence before the court as to any further difficulties Mr Pokea had encountered in obtaining the necessary documents to file the Appeal Book after 28 June 2025, the last date on the evidence when he and his law clerk had contact with the Registry and was informed that the Clerk of the Court was on leave.  The motion before the court was heard in December, that is over four (4) months later, the evidence silent on what steps over that period had been taken to obtain the court depositions and other necessary documents.

b.	Further, if, as Mr Pokea deposes, he was aware (based on his past experience) of the difficulties in obtaining depositions from District Court clerks on a timely basis and resulting in delay when the delay occurred, that knowledge should have informed his response including the need to seek an extension of time from the court before the return listing on 8 July.  It was not the first time he had done so on behalf of his client, the appellant having sought an extension of time for dispensation to file his appeal out of time which was granted on 8 May 2024.  Relevantly, and as submitted on behalf of the respondent, it was almost two weeks after the making of the order of Dowa J on 23 May 2024 that a letter to the Clerk of the Court requesting the documents was drafted. While the letter is dated 6 June 2024, the receipt stamp of the District Court is 13 June 2024, some twenty (20) days after the making of the order.  There is no evidence before the court to explain this delay, nor take issue with the fact of the delay. That is, at a time when time for compliance was of the essence, and knowing there may be delays based on his experience in dealing with District Court clerks, it was nearly three (3) weeks before a request was made to the Registry for the necessary documents (see Annexure D to the affidavit of Mr Pokea). 
 
c.	I accept the submission on behalf of the respondent that the appellants’ actions lacked a sense of urgency, necessary in the circumstances, contributing to their failure to comply with the order.  It is a conclusion reinforced by Counsel for the appellants absence from Port Moresby on family matters from 5 July 2024 at a time when he knew the approaching return date was three (3) days hence and that he would be absent attending to family matters until the day before the hearing.  If he needed to attend to family matters there is no evidence of any steps implemented by him in his absence, as Counsel with the carriage of the action, to address that circumstance including ensuring that someone else in his office was attending to the matter in his absence. 

d.	Nor does the evidence adequately explain why if Mr Pokea could not attend court on 8 July 2024 because of flight issues he did not arrange or attempt to arrange for an agent to appear or seek that the matter be stood down until his arrival, or after his arrival at midday, why he did not come directly to court and assess the state of the list on what was a directions day and/or seek a re-listing.  With respect to 12 July 2024 hearing, whilst Mr Pokea complains that he was not informed by the respondents of the adjourned date or by the court until the morning of 12 July, 2024, there is no evidence to suggest that he attempted to contact the respondents or send an email to the court asking what orders had been made on 8 July 2024 during his absence.  On his further evidence at [14] of his affidavit, having “made an attempt to attend court but by the time I arrived in Court room 4, the matter was already dealt with”, his evidence is silent as what that attempt was and why on receipt of my Associate’s email that morning he could not have sought that the matter be stood down until he arrived.  It is not the role of this court to chase Counsel. Counsel have a duty to proactively meet their professional obligations to their client and their duty to the court as officer of the court. It is not the responsibility of the respondent nor the court, having already adjourned a matter once due to the absence of the appellants’ counsel, to prosecute the appellant’s appeal. 

e.	In short there is no evidence to demonstrate to the court’s satisfaction that Mr Pokea gave his best efforts or demonstrated the necessary sense of urgency in prosecuting his client’s appeal (PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126). 

f.	With respect to the merits of the case, Mr Nane’s affidavit does not evidence the material facts which either disclose a defence on the merits or suggest an arguable case on the appeal.  Assertion is not evidence. It is not helpful to assert that he “strongly put before the Court by way of affidavit evidence that the respondent lacked evidence as to how he acquired the state lease title under normal and formal land acquiring process” (at [9] of Mr Nane’s affidavit) without then outlining the material facts relevant to and supportive of that assertion. 
 
g.	It is not helpful to assert that the District Court lacked jurisdiction without outlining the basis of that assertion.  Mr Nane’s affidavit before the District Court, sworn on 6 December 2023, being Annexure F to his affidavit filed 8 August 2024, consists of ten (10) paragraphs with reference to three (3) annexures.  The annexures to the affidavit, however, are not in evidence before this court.  The evidence before the court does not ultimately assist in an assessment of the merits of the appeal.  It deposes to proceedings in the National Court relating to the disputed land (WS (COMM) No 16 of 2020) in which Mr Nane was a Fifth Plaintiff. However, those proceedings were dismissed by the Kandakasi DCJ on 13 May 2022, evidence before the District Court on the application for vacant possession. Relevantly the order of 13 May 2022 states that the proceedings were dismissed “on account of the Plaintiffs failure to comply with Court orders, his failure to appear in Court ready to prosecute the matter further today and his apparent want of prosecution generally”.  The fact, then, that the appellant on his evidence had brought proceedings to set that order aside on the basis that he did not know about it until served does not suggest that the learned Magistrate erred.  If she did, he does not explain how.  His application to set aside the order was made on 29 November 2023, some eighteen (18) months after the making of the order. It is yet to be determined, for reasons unclear on the evidence before this court.  It is trite to observe that the filing of an application to set an order aside does not mean the order will be set aside.

h.	While it is a serious matter to deprive a litigant of the right to prosecute an appeal, the interests of justice do not settle on the appellant’s interests alone.  There are two parties to these proceedings, the respondent with the benefit of a District court order in his favour following a judicial determination.

25.	There is no issue that the court has jurisdiction to reinstate the proceedings that were dismissed.  In the circumstances of this case, the order to dismiss the proceedings for want of prosecution and non-compliance of the order of Dowa J to file the Appeal Book was made in the absence of Counsel for the appellants being heard. The order then is open to challenge to be set aside under Order 12 Rule 8(3). However, in my discretion, and for the reasons discussed, I am unable to conclude that the appellants have provided a reasonable explanation for their failure to file the Appeal Book as ordered or the absence on two occasions of the lawyer on record representing the appellants’ interests in the appeal thus enabling the appeal to be advanced. There is clear legislative intent to have all appeals from District Courts heard expeditiously from the date of the lodgement of an appeal. Any delay in doing so has to be satisfactorily explained if a dismissal and/or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation can be fatal to an appeal.

26.	Nor am I able to conclude that the merits of the appeal suggest that the justice of the matter favours setting aside the order and reinstating the appeal.

27.	In consequence the application should be dismissed for the reasons given.

28.	There is, however, a further reason why this appeal should not be reinstated.  While a matter not argued before me, the appellants filed an entry of his appeal to the National Court on 18 May 2024, the same day of the lodgement of the appeal. That meant that as of the 18 May 2024 the appeal was purportedly ready for hearing. However, that was not the case. Nor was it ready for hearing at the time the appellants filed their Notice of Motion seeking to set aside the order because the appellants had not filed the Appeal Book. In those circumstances the filing of the entry of appeal to the National Court was an abuse of process. This is because, the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing, which was not the case in this matter (Moses v Magiten [2000] PGNC 73; N2023). 

ORDERS

29.	In consequence the orders I make are as follows:

a.	The appellants Notice of Motion filed 8 August 2024 be dismissed.

b.	The appellant pay the Respondent’s costs on a party and party basis to be agreed or taxed.

c.	Time to abridge.

Lawyers for the appellants: Pokea & Associates
Lawyer for the respondent: Office of the Public Solicitor