DC148

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 99 OF 2001

BETWEEN

YOGEL KAMAN
Complainant

AND

WORKS DEPARTMENT
First Defendant

THE STATE OF PNG
Second Defendant

Goroka: Manue F: Magistrate
2001: 7 September

REASONS FOR DECISION

Manue F: This matter came before the Court on September 7th 2001, upon Motion of the defendants who sought to set-aside an Ex parte Order obtained by the Complainant on the 11th April 2001. They further seek to set aside a Warrant for Execution obtained by the plaintiff, and to have the court reconvene to determine the substantial matter and quantum. Is there any reasonable reason or explanation before the court may exercise its discretion in invoking section 25 of the District Court Act?

Section 25 is in these terms:

25. Ex parte Order may be set-aside. 

A conviction or order made when one party does not appear may be set-aside on application to the court on such terms as to costs or otherwise as the court thinks just, and the court, on service on the other party of such reasonable notice as the court directs, may:

(a)	proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or
(b)	adjourn the hearing and determination of the hearing to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party. 

In the exercise of Section 25 of the District Court Act, which is discretionary, the discretion must be exercised according to law or in a reasonable manner. One relevant consideration is whether there is any reasonable explanation for the defendant's failure; in this case the State and its agent the Works Department, to appear in court (see Dansen v Adamson [1967-1968] PNGLR 357).

The applicant advanced three grounds on which they rely to secure a setting aside of the initial court order. These are:

(a)	that the applicants were not served summons so that they are afforded an opportunity to be heard. Even when served they denied receiving the summons until some weeks after the return date. 

(b)	That the mandatory notice required under Section 5 of the Claims By And Against the State Act was not adhered to by the respondent/complainant.

(c)	That the warrant for execution be set-aside as the warrant for execution process is inapplicable to the State pursuant to Section 13 of the Claims By and Against the State Act was rescheduled to the 11th April 2001. Some three weeks advice was issued by or on behalf of the Clerk of Court to the defendants particularly the second, through the Solicitor General's Office. Notice was dispatched on the 23rd March 2001 by facsimile. 

The State argued that they were not served the summons on time and, when they did receive the summons, it was three weeks after the returnable date. 

I will deal with each ground separately in these outlined sequences.

The complaint was filed on the 5th March 2001 and was returnable on the 21st March 2001 at 9am. Proof of Service on both defendants was filed and in order, and particularly for the second Defendant/Applicant, the complaint/summons and relevant documents were dispatched by registered mail dated 7th March 2001. The relevant documents included a letter to the Provincial Works Manager with carbon copies to Solicitor General, Department of Attorney General's Office, regarding unpaid entitlements for minor contract; and a follow up letter of the same matter addressed to the Solicitor General. I will elaborate more on the letters when I deal with the second ground. From local knowledge it takes at least two weeks for registered mail to get to Port Moresby and vice versa. If the documents were dispatched on the 7th March 2001, presumably the office of the Solicitor General should have received the mail by 21st March 2001. That is the day on which the summons was returnable. On the returnable date, defendants did not appear, and so the matter was adjourned to the 11th April 2001. It seems that it took four weeks for the registered mail to get to Port Moresby and less than a week for the same documents to reach Mount Hagen by the same mailing system from Port Moresby. I find that hard to believe and is unreasonable. It really boils down to administrative tangling and mailing procedure, or routine of the department. I find that the defendants were not denied national justice, as they were afforded an opportunity to answer to the complaint. The orders they seek are set out in motion.

The second ground the defendants rely on is that respondent/complainant had given notice to the State pursuant to Section 5 of the Claims By and Against the State Act. The applicants argued that Giving Notice prior to suing the State is mandatory and is a pre-requisite and cited the case of "TAU LIU" a Supreme Court Decision. While I agree that the law is as stated the facts relevant in this issue may not be applicable to the law because the requirement has been adhered to.

The Complainant/Respondent first wrote to the first defendant on 8th August 2000 requesting to process his claim for the minor contract. A follow up letter was written on the 30th October 2000 to the Provincial Works Manager, with carbon copies to, among others, the Solicitor General. This letter clearly cites the relevant provision of the Claims By and Against the State Act. A final notice was given on the 21st November 2000. Despite those notices, the applicants deny being notified. The argument that the Department of Works is not a legal entity to be served notices is correct but it was an obligation as being a responsible Department Head for the Works Manager to notify relevant state agencies as the Solicitor General or a Departmental Lawyer if there is such. For it to have received the notices and sit on them are signs of being negligent in its responsibility as an agent of the state. It simply shows one's attitude of "no care". The Complainant/Respondent was in my view satisfactorily complied with the provision of the Claims By and Against the State Act, particularly Section 5.

The final point in issue is the question of warrant for execution, which was quite validly argued. The warrant was issued after the order was made, which is not proper under Section 13 of the Claims By and Against the State Act.

The motion was therefore partly granted and partly refused.

Mr. J. Kais: Complainant
In Person: Defendant