Unreported Supreme Court Decisions
SC541
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR 51 OF 1995
BETWEEN
MARTHA LOKE-TILTO - APPELLANT
AND
QANTAS AIRWAYS LIMITED - RESPONDENT
Waigani
Hinchliffe Salika Sevua JJ
4 March 1998
SUPREME COURT - Practice and Procedure - National Court proceeding in absence of a party under Order 10 Rule 12 (1) (b) - Order 10 Rule 12 (2) is available to the absent party to set aside verdict of the Court - Prevailing circumstances to be considered when the Court is exercising discretion.
Counsel
L Tilto for the Appellant
PR Payne for the Respondent
4 March 1998
HINCHLIFFE SALIKA SEVUA JJ: The facts in this matter are as follows.
On the 11th April 1995 at a civil call-over the matter was listed for hearing on the 28th July 1995.
On the 11th July 1995, the Registrar and the Deputy Registrar conducted a call-over.  At this call-over the respondent’s lawyers or representatives were not present and the Registrar was unable to confirm the trial date as agreed to earlier by the parties.  The matter was removed from the civil list by the Registrar.  On the 14th July 1995 the respondent’s lawyers were advised of the change by the appellant’s lawyer.
Again on the 20th July 1995, the respondent’s lawyers were advised that the matter had been taken off the civil list and the trial date vacated.  After, the respondent’s lawyers queried the change and the matter was placed back on the list.  The appellant was notified but she did not receive the message as she had left for West New Britain.
On the 28th July 1995 the matter was called in Court by Justice Brown.  The appellant’s lawyers or representatives were not in Court because of their belief that the matter had been vacated.  His Honour Justice Brown proceeded to trial in the absence of the appellant dismissed the claim and awarded costs to the respondent.  On the 31st July 1995, the appellant’s husband first heard of what had transpired on the 28th of July 1995, through a facsimile to him sent by the respondent’s lawyers.
On the 8th August 1995 the appellant filed a motion to set aside the judgement of Justice Brown made on the 28th July 1995.
On the 23rd August 1995, Mr Justice Sheehan heard the motion and dismissed the application to set aside Justice Brown’s judgement.
On the 5th September 1995, the appellant filed an appeal against the decisions of both Justice Brown and Justice Sheehan.
On the 6th November 1995, the respondent filed an objection to competency application against the appeal against Justice Brown’s decision.
On the 30th November 1995, the Supreme Court heard the objection to competency application and upheld the respondent’s objection.
This appeal is only in relation to the decision of Justice Sheehan whereby he refused the application to set aside the judgement of Justice Brown.  In his short ruling, His Honour said:
“Submissions on O 10 r 12 are relevant on the failure of a party to attend Court on a date set for hearing of a trial.  It is said parties have a right to be heard - that is true - but the fact that a party is not heard is not an automatic denial of that right.  The rules of Court and practice directions are laid down to ensure just a right, in a manner best able to dispose of a dispute.  Failure to follow rules can result in a right of hearing being lost.
Here Plaintiff took improper course to vacate, ie did not take the proper course.  As regards the application to vacate.  While there may be some element of confusion surfacing here, the National Court has already considered the issues I am now asked to rule on.  Since this has now been decided the only course open is for Plaintiff to appeal.
Costs to Defendant.”
The appellant argued through her lawyer that His Honour Justice Sheehan ought to have exercised his discretion to set aside the judgement of Justice Brown.
Her counsel relied on Order 12, Rule 8 (2) (b) and Order 10, Rule 12 (2) and (3).  We do not think Order 12 Rule 8 (2) (b) is applicable in this instance but are of the view that Order 10 Rule 12 (2) and (3) is relevant and applicable.
Order 10 Rule 12 (2) and (3) read as follows:
“(2)    Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial a verdict is given or a finding or assessment is made, the Court, on motion by that party, may, on terms, set aside or vary the verdict, finding or assessment, and may give directions for the further conduct of the proceedings.
(3)      A motion under sub-rule (2) of this Rule must be made on notice and the notice must be filed and served not more than seven days after the giving of the verdict or the making of the finding or assessment.”
The facts alluded to earlier are that the Court proceeded to trial in the absence of the appellant and her lawyers.  The transcript shows that the trial was concluded and a verdict was given.
It is clear that the appellant moved to have the verdict and the finding of Justice Brown set aside under Order 10, Rule 12 (2) of the National Court Rules before Justice Sheehan.  Her application was made 8 days after the giving of the verdict.  Order 10 Rule 12 (3) required the appellant to file the motion 7 days after giving of the verdict.  The Court did not dismiss the application for failure to lodge the application within 7 days, rather the Court was of the view that the appellant should have filed an appeal against the verdict of Justice Brown.
However, in the circumstances the appellant’s application to set aside the verdict and findings of Justice Brown were in our view appropriate.  In our respectful view all the relevant material was before the motion judge.  The affidavit of Norbert Kubak, the then Deputy Registrar, shows that as a result of his error the matter was called and the Judge at first instance had proceeded to trial.  Despite the explanation given, His Honour refused the application to set aside the verdict and the findings of the judge at first instance.  Having had the opportunity to go through the same material that was before the motion Judge and considering the circumstances and the manner in which this matter came on for hearing in the first instance as explained, we are respectfully of the view that the motion judge erred in not exercising his discretion to set aside the verdict and findings of the judge at first instance.
In the circumstances we allow the appeal and quash the orders of the motion Judge.  Having quashed the orders of the motion judge we now proceed to determine the motion as if this Court was the motion Court in accordance with Order 10 Rule 12 (2) and (3).  In order to do justice we, under Order 1 Rule 7 dispense with the requirement of Order 10 Rule 12 (3) and grant the orders to set aside the judgement and orders of the Court made by Justice Brown on the 28th July 1995 and order that the matter be listed for hearing at the next civil call-over.
We award costs to the appellant.  If not agreed then they are to be taxed.
Lawyer for the Appellant:  Karl Yalo & Associates
Lawyer for the Respondent:  Blake Dawson Waldron