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Baruna v Firman [2021] PGDC 217; DC7077 (11 November 2021)

DC7077

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 36 /2021.

IN THE MATTER BETWEEN:

ROBERT BARUNA.
Complainant/Respondent.
.
AND.
LALE FIRMAN
Defendant/Applicant.

Popondetta: Michael W. Apie’e

2021: November 11^th.

CIVIL PROCEEDINGS. Application to Set aside Ex-parte Orders.

Cases Cited:
Barker v The State [1976] PGNC 11; [1976] PNGLR 340

References:
District Court Act.

Representation:
Complainant /Respondent for himself.
Defendant/Applicant for himself.

RULING ON NOTICE OF MOTION.

Background.

1. The Complainant filed suit before the District Court in DC 149 of 2019 ON THE 06/09/19 by way of a Default Summons upon a Complaint of a civil Debt for the payment of K4,200.00 being for 60 x K70.00 per stone Baskets built using stones from the Bangoho river which runs on the Complainants Lands.
   
2. The Complainant requested settlement of this amount from the Defendant who was the Contractor responsible for the work carried out but the Defendant has allegedly ignored the Complainants reminders and so the Complainant filed this suit against the Defendant.
   
3. This matter was previously mentioned before The former SPM but no action took place.
   

History.

4. This matter came before me on the 19/01/21 and several times after that with the Parties appearing and not appearing variously at various times.
   
5. On the 22/03/21, the court forced the issue and had this matter listed for possible trial on the 22/04/21.
   
6. On the 22/04/21, Trial was abandoned due to the Defendant recent filing of an Affidavit disclosing his defenses to the Case for the Complainant to respond.
   
7. The matter was set for 29/04/21 but then further reset for 13/05/21 which was again abandoned and yet again reset for 06/06/21.
   
8. On the 06/06/21 matter was not reached and so further stood over to 05/07/21, but since the Defendant was not present, matter was stood over to 14/07/21.
   
9. On the 14/07/21 the Defendant was still not present so the matter is set for 26/07/21 and notice issue to the Defendant for his attendance.
   
10. Whether the Complainant served the Notice of hearing on the Defendant or not is not clear.
    
11. On the 26/07/21, the Defendant did not attend, and so the Complainant was allowed to present his case Ex-Parte.
    
12. The Ex-Parte Orders of 27/07/21 against the Defendant are the Result.
    

Application by Defendant.

13. The Defendants Application to set aside the Ex Parte orders is based on law and therefore is properly before the Court pursuant to Section 25 of the District Courts Act.
    
14. The old National Court case of Barker v The State [1976] PGNC 11; [1976] PNGLR 340, is one of the earliest Papua New Guinea case setting the ground Rules for Such applications as this.
    
15. In the Barker case, the National Court per Saldanha J as he then was laid down the basic ground rules for Applications under this heading and they are;
    1. There must be an affidavit stating facts showing a defence on the merits:
    2. There must be a reasonable explanation why judgment was allowed to go by default; and
    3. The application must be made promptly and within a reasonable time.
16. Many other cases have come before the National and more specifically the District Courts since the decision in Barkers case and always these three ground rules are the factors on which such applications are considered, and I intend to do just that.
    

Assessment of the case.

17. The Decision was made on the 27/07/21 and this application by the Defendant is filed on 12/10/21 presumably after he became aware of the court order against him.
    
18. His affidavit in support of the Notice of Motion disclosed the reasons why he had to leave the Oro Province to attended to family related matters on Port Moresby and also more Particularly in the Southern Highlands Province.
    
19. He particularly listed the following problems that caused him to be away from the Court;
    
    1. Wife eloping with another man to Port Moresby.
    2. Death of his brother.
    3. Death of a Tanker driver at Girua Airport that he had to repatriate to Southern Highlands.
    4. He also said that due to these he lost track of the Court Proceedings.
       
20. The Defendant had also filed an affidavit/Defense Reply on the 20/04/21 in response to the substantive and in that Filing, I note that;
    
    1. He Claims that the Gravel and Stones taken to build the ‘Stone/Gabion Baskets’ were taken from the Provincial Works Scope of Work Plan and not from Traditional Lands.
       
    2. The Complainant was there all alone and if his Contract workers venture outside the Provincial Scope, the Complainant should have complained or stop the Defendant and his workers.
       
    3. But he never voiced any objections, and later brought this suit to get money off him.
       

Assessment.

21. I hereby would assess the Defendants application as follows;
    

Reasonable Explanation for not attending:

1. The Defendant deposed that he had to attend to deaths and actual repatriations of the deceased back to Southern Highlands and also he had to cope with the eloping of his wife to Port Moresby with another man.
   
2. He claims he was not informed of adjournments by the Complainant, even though that is his own responsibility.
   
3. Deaths and family problems are something that we all have to face from time to time and without second guessing the Defendant, I will deem these as valid explanations why he could not attend the case on the 27/07/21.
   

Reasonable time.

4. His Application is filed on the 12/10/21 is almost three months after the Orders are issued on the 27/07/21.
   
5. Allowing for Service of the Orders on him by the Complainant given his availability or non-availability in Popondetta after a few weeks to a month or two after attending to Southern Highlands I could give the benefit of the doubt to the Defendant in that he made his application as soon as was practicable for him.
   

Defense on Merits.

6. The Defense the Defendant relies on is expounded above in paragraph 19 and so I would adjudicate that he had a defense on merits going into the case until the Ex-Parte Orders of 27/07/21.
   

22. That being the case, I adjudge that this is a suitable case in which I should exercise my discretion under Section 25 of the District Court Act and have this the Ex-Parte Orders of 27/07/21 dealt with as follows;
    
    1. The Applicants Notice of Motion is upheld.
       
    2. The Ex-Parte Order(s) of 27/07/21 is hereby Set Aside for now.
       
    3. The Substantive matter of DCC NO: 149 /2019 between the Parties is reinstated for Inter-Parte hearing to commence on Thursday the 09/12/21.
       
    4. No orders on costs.
       

Complainant /Respondent for himself.
Defendant/Applicant for himself.