DC107

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 24 OF 1998 No. 1

BETWEEN

DR MARCUS WOIBUN
Complainant/Applicant

AND

PAUL YEPEI
Defendant/Respondent

18 March 2005
18 April 2005

REASONS FOR DECISION

KORONAI, PM: This is an application by the Complainant seeking to set aside an order of this Court, made in his absence, on the 29th of September, 2004, striking out his complaint and awarding costs of proceedings against him.

HISTORY

The complainant filed his claim in this Court on the 24th day of August, 2004 against the defendant and which was set for initial hearing at 9:30 am on 10th July, 2004. This matter dragged on until the defendant filed a motion on 6th August, 2004 and which was to come on for hearing on 6th September, 2004 seeking the following relief:-

1.	Order that the matter be struck out for there is no cause of action pursuant to s.7 and s.8 of the Defamation Act Chapter 293.

2.	Recommend to the Police Commissioner to re-open the case for further investigations and direct the Police, CID Section to arrest the Complainant/Respondent and others named in the sworn evidence before this Court and charged with pursuant to s.300 of the Criminal Code Act Chapter 262.

3.	Complainant/Respondent pays K10, 000.00 being for costs of these proceedings.

4.	Such other orders as the Court deems fit and appropriate.

The above-named motion was filed and served affidavits in support and statement, notice of appearance and defence and notice of intention to defendant, but there was no affidavit filed to show that service was in fact effected upon the complainant.

The complainant received all these and bill of costs of K9, 548.00 and the Court's Order of 29th September, 2004 on 29th October, 2004. He received all the above documents a month after the event had taken place. The letter containing all the above documents posted to the complainant was 27th September, 2004, stamped on this stamped letter.

On the 18th of November, 2004, the complainant filed this motion which was initially set for 9:30 am on 30th November, 2004 and which was then stood over to 1st of March 2005 when I then listed it for mention on 18th March, 2005.

On 18th of March, 2005 both parties appeared and made verbal submissions on it and I adjourned to today for a decision on it.

ISSUE

Whether the applicant/complainant has satisfied all the principles of law applicable in setting aside ex parte orders.

THE LAW

The District Courts Act Chapter 40, Section 25 applies in respect of this issue and which reads:-

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.

Now the relevant principles of law relating to such application under Section 25 are set out in the following cases namely; GREEN & COMPANY v GREEN [1976] PNGLR 73; BARKER v GOVERNMENT OF PNG & DAVIS AND BUX [1976] PNGLR 340; GOVERNMENT OF PNG & DAVIS v BARKER [1977] PNGLR 386; GEORGE PAGE PTY LTD v MALIPU BUS BALAKAU [1982] PNGLR 140 and MAPMAKERS PTY LTD v BROKEN HILL PROPRIETY COMPANY LTD [1987] PNGLR 78, and these are:-

1.	Applicant/Complainant must file an affidavit or statutory declaration with his application stating facts showing a defence on merit.

2.	He must give a reasonable explanation as to why he allowed ex-parte order to be made against him then.

3.	He must file his application promptly and within a reasonable time after he became aware of this ex parte order.

In respect of this application I am satisfied that the complainant/applicant has a defence on merit which are shown by the facts in his affidavit filed together with this application. He was not aware nor given ample notice of the date of hearing of 29th September, 2004 when this ex parte order was made against him, so this takes care of principle number (1).

I am also satisfied by the reasons given as to why he allowed this ex parte order to be made against him for the reasons referred to above so this takes care of principle number (2).

I am also satisfied that this application was made promptly, if not, within a reasonable time after he became aware of the Court's ex parte order on 29th October 2004 for this application was filed on 18th November, 2004, some twenty days later, so this principle of law has also been satisfied by the complainant/applicant.

Further the motion by the defendant seeking to dismiss the complainant's claim for no cause of action, because of defences available under Section 7 and 8 of Defamation Act Chapter 293, was improper at that state. There is definitely a cause of action known in law, under the Defamation Act Chapter 293, Sections 2 and 3. Defences available under Sections 7 and 8 should only be determined once the whole of the evidence is in and not before and therefore the Court made an error in law, when it prematurely dismissed his claim for no cause of action because of defences available under the Defamation Act Chapter 293, Sections 7 and 8.

CONCLUSION

Based on the above reasons, it is clear that the complainant/applicant has made out his application which should be granted by this Court and I think that costs should be in the cause and matter of this complaint should be set for trial on a date agreed to by the parties and which is suitable to this Court.

As to the defendant/respondent's motion seeking orders to force the Police to carry out their duties, I am of the view that this Court should not interfere in their constitutional role in deciding whether to prosecute or not and I think the matter is best left to the Commissioner of Police or the Public Prosecutor and he should direct his complaints to them and if they refuse to carry out their duties then he could then either go to Ombudsman Commission or come to the Courts.

FORMAL ORDER:

1.	APPLICATION IS GRANTED AND ORDERS OF 29TH SEPTEMBER, 2004 ARE SET ASIDE.

2.	COSTS BE IN THE CAUSE.

3.	MATTER OF COMPLAINANT'S CLAIM IS TO BE SET FOR TRIAL ON A DATE AGREED TO BY THE PARTIES AND SUITABLE TO THIS COURT.

Complainant/Applicant: In Person
Defendant/Respondent: In Person