N2053

PAPUA NEW GUINEA

[In the National Court of Justice]

APP NO: 258 OF 1997

BETWEEN:

BILL SAKARAO
Appellant

AND:

MAPU NALA
Respondent

Wabag:	Jalina, J.
9 & 16 March, 2001

Practice and Procedure – District Court – Application to set aside ex parte order – Order made after hearing evidence ex parte – Whether appeal to National Court or application to set aside before another District Court proper course to take.

Practice and Procedure – District Court – Application to set aside ex parte order – Delay – Application made eight months after date of ex parte order – Delay as a factor in the exercise of discretion to grant – Whether delay unreasonable.

There are no cases cited in the judgment.

Counsel:
M. Thoke for Appellant
Respondent in Person

16 March, 2001

JALINA, J.	This is an appeal against an order of the Wabag District Court whereby on 8th September, 1997 it dismissed an application by the Appellant to set aside an order of the Porgera District Court which was made in favour of the Respondent after hearing evidence ex parte on 5th September, 1996.

The brief history of the matter is that the Appellant, who comes from Lenki in the Wabag District, had a dispute with the Respondent who comes from the Porgera District over payments relating to the use by the Appellant of the Respondent’s vehicle. The case was heard ex parte when the Appellant failed to appear on 5th September which was the date scheduled. This was after a number of adjournments previously. An order was then made against the Appellant whereby he was to pay the Respondent K5,000.00 plus costs and 8% interest within 30 days.

On 13th May 1997 which was some 8 months after the ex parte order, the Appellant filed an application in the Wabag District Court seeking to set aside the said ex parte order of the Porgera District Court. In his affidavit which he filed in support of his application, the Appellant alleged among other things that the order was made while he was still on his way and that he was not too late. He further stated that the amount was excessive as he had already paid the respondent K4,000 so he had a good defence on the merits.

Although the learned magistrate at the Wabag District Court accepted that the Appellant had some defence on the merits, he considered the delay of 8 months to be improper or unreasonable so he refused the application to set aside the ex parte order. Mr. Thoke, lawyer for the Appellant has advanced the same arguments before me alleging error on the part of the learned magistrate.

In response to my comment that the proper course for the Appellant to have taken was to have appealed against the ex parte order of the Porgera District Court within 30 days as required by the District Courts Act instead of applying to have the order set aside, Mr. Thoke submitted that it was optional on the Appellant whether to appeal or apply to set the order aside. 

The Respondent has submitted that it was too late for the Appellant to apply to set the order aside. He should have appealed within 30 days.

I accept the respondent’s submissions. I consider that the proper or appropriate course for a party aggrieved by an order of the District Court is to appeal to the National Court within the 30 days time limit prescribed by the District Courts Act instead of applying to another District Court to set aside the order. However, where a party decides to apply to set aside then he should do so at the risk of his application being dismissed. A decision whether to grant an application to set aside an order of the same court is one that involves exercise of the court’s discretion. Whether or not an application to set aside an order has been made promptly or without delay or within a reasonable time is a factor that is taken into account when the court is exercising such discretion. 

In the present case, the Appellant failed to appeal within 30 days. He further failed to apply within the reasonable time to have the order set aside. I cannot find any error on the part of the learned magistrate in refusing the application on the basis that he did.

I accordingly dismiss the appeal with costs to the Respondent to be taxed if not agreed.

The order of the Porgera District Court is confirmed.
_____________________________________________________________________
Lawyer for the Appellant:	Michael C. Thoke Lawyers
Respondent in Person