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Tele v Kondo [2008] PGDC 83; DC794 (6 March 2008)

DC 794

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 406 of 2007

BETWEEN

JOHN BLACKY TELE
Complainant

AND

PATRICK KONDO
Defendant

Goroka: M. IPANG

2008: February 14, 28
March 06

CIVIL- Normal Civil Debt Case – Defendant did not comply with court directions – failed to attend Court session – Court proceed to hear and determine the matter Ex-parte.

PRACTICE AND PROCEDURE: Non – appearance of Defendant on two (2) occasions – matter proceeded to Ex-parte Hearing – Setting of Ex-parte Orders – filing an appeal – premature as all legal avenues not exhausted.

HELD- Defendant failed to show appearances on two (2) occasions (28/02/08 and 06/03/08) with nor reasons given, Court determined matter ex-parte.

Cases Cited

1. Commodity Development Pty Ltd –v- Peter Karai [1994] PNGLR 463

References

District Courts Act, Chapter No. 40 – Section 25
Provision on setting aside ex-parte orders

Counsel

Complainant: In Person
Defendant: In Person

06 March 2008

EX-PARTE DECISION

M Ipang: This is a normal civil claim for breach of verbal contract between the complainant and the defendant. The complainant alleged that on or around August 2003 the defendant and himself, entered into a verbal agreement. The agreement was for the Defendant to buy defendant’s Isuzu 6 Tonne Motor vehicle for the sum of K25, 000.00, on an “as is where is” basis.

2. Complainant claimed that Defendant paid in various instalment payments totalling up to the amount of K19, 000.00 and has the remaining sum of K6, 000.00 outstanding. Complainant says despite numerous requests to get the defendant to pay up, he has failed or refused to pay up.

3. Therefore, the complainant seeks the outstanding amount of K6, 000.00 plus 8% interest pursuant to Judicial Proceedings (Debts & Damages) Act, Chapter No. 52 and costs of this proceeding.

4. Chronological Events of Judicial Proceeding

The matter was set for mention on the 14 of February 2008 at 9:00 am. On this date and time both disputants appeared in persons. On the Court File, the Court noted that Defendant has filed his Notice of Intention to Defend this proceeding but has not filed his defence.

5. The Court then issued the following directions to the parties to comply with. The following were the directions:

1. Defendant to file his defence within 14 days and serve a registered copy of his defence to the complainant.
   
2. Upon receipt of his copy of defence, complainant to immediately proceed to file his Reply to Defence before the returnable date.
   

100. Matter is returnable on the 28 February, 2008 at 9:00 am.
     

6. On the 28 February 2008 at 9:00 am, Complainant appeared in person however Defendant was not present and that no reason was given for his non-appearance. Court has noted on the Court Deposition that Defendant has also not field his Defence. Thus, a direct non-compliance with Court directions issues on the 14 of February, 2008.

7. The Court hten adjourned the matter and set the date for ex-parte trial to be conducted on the 06 of March 2008 at 9:00 am.

8. On the 06 March 2008 at 9:00 am, complainant appears but Defendant did not show appearance. Since the matter was set for ex-parte trial, the Court proceeded to hear the evidence of Complainant on oath plus the affidavit of Complainant.

9. The Court upon being satisfied on the balance of probabilities granted orders in favour of the complainant in the sum of K6, 000.00 plus 8% interest (480.00) and costs. Defendant was ordered to pay the sub-total of K6, 480.00 within three (03) weeks upon receipt of Court order.

10. After the Court Order was made, this Court noted Defendant’s defence on the Court file. It was deemed the defence which was filed on the 26 February 2008 was not placed on Court File before 28 February 2008. It will also be little too late for the complainant to file his Reply to Defence before 28 February 2008 as per Court directions issued on the 14 February 2008.

11. Defendant has showed no appearances on two occasions, i.e 28 February 2008 and 06 March 2008 with no reason(s) provided at all for his non-appearances which then made the Court to proceed on to determine the matter ex-parte.

12. Since this matter was heard ex-parte, the Defendant’s Counsel should have instructed his client to exhaust all legal avenues before filing an appeal. There is a provision in the District Courts Act, Chapter No. 40 for setting aside ex-parte orders which the Defendant could utilize rather than filing an appeal. Section 25 of the District Courts Act provides avenue for setting aside ex-parte orders and the National Court case of Commodity Development Pty Ltd –v- Pete Karai [1994] PNGLR 463 provides guidance for the exercise of discretion in relation to an application to set aside ex-parte order.

Complainant: In Person
Defendant: In Person