N2593

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN]

APPEAL NO 380 OF 2002

MAKOP ON
for and on behalf of EPELGA SERVICE STATION
Applicant

V.

BILLY PARAKO
Respondent

Mount Hagen: Manuhu, AJ
2004: June 17 & 24

RULING

Practice and procedure - appeal - application to set aside ex parte order - relevant considerations - appeal filed out of time.

Cases cited:

Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145;
Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119.

Counsel:
Mr. Palme, for the applicant.
Mr. K. Peri, for the respondent.

24th June, 2004.

MANUHU, AJ: This is an application to set aside an ex parte order made by the National Court. The matter originated from a claim in the District Court, where the applicant was ordered to pay K3,000.00 to the respondent. The applicant filed his appeal to the National Court on 28th October 2002. On 27th February 2003, a notice of motion was filed by the respondent seeking to have the appeal struck out for want of prosecution. The motion was dealt with ex parte on 13th May 2003 and orders were granted accordingly. This application seeks to set aside that order.

In applications like this, the initial inquiry is whether the ex parte order was made regularly or not. Where an ex parte order has been made irregularly, the only just remedy is to rectify the irregularity by setting aside the ex parte order. Non-compliance with an important procedural requirement under the National Court Rules is usually considered as an irregularity, which generally results in an ex parte order being set aside. On the other hand, where an ex parte order has been made regularly or in compliance with relevant procedural requirements, setting it aside is dependent on what is just and fair in all the relevant circumstances; and, what is just and fair is dependent on the reasons for the non-appearance which permitted the matter to proceed ex parte; the merits of the applicant’s case; and, the promptness of the application to set aside ex parte order. 

The applicant has taken both routes. He submits firstly that he did not know that the appropriate application which sought to dismiss his appeal for want of prosecution was before the National Court. This point raises the need for service which I will deal with in due course. The applicant further argues that if he had been notified, he had a good explanation for his failure to promptly prosecute the appeal. He deposed that he was not aware that he was required to compile the appeal. He was waiting all the time for the National Court Registry to advise him of the hearing date of his appeal.

This explanation is valid in that it highlights the need for public institutions to reconsider its customer service practices, and general approaches to the public at large. Dispute resolution is in high demand in the country. The Constitution establishes the courts for the people to resort to for satisfactory dispute resolution. A Court Registry is the point of entry to this formal dispute resolution mechanism. It is at this entry point that a disputing party must be already informed of all that is required of him by the system. Where a party is represented, he will be informed and be instructed by his legal representative. Where a party is unrepresented, there must be some practices in place to provide not all but sufficient assistance to him. In a case like this, for instance, an appellant should be informed of the basic time requirements and the need to file an appeal book. I leave these comments for court administrators to consider at the appropriate time and venue. 

In this proceeding, I am unable to accept the applicant’s explanations. He is a city dweller. He has easy access to the National Court Registry in Mount Hagen. He is a Ward Councillor and is associated in a significant way with Epelga Service Station. He is named as a party "on behalf of Epelga Service Station". With such background, he must have known that his appeal would be heard by the National Court, and, to a reasonable man in the streets of Mount Hagen, that means he must seek legal assistance of some sort. It is unreasonable that, after filing his appeal on 28th October 2002, which was also filed out of time, he became inactive for seven months thereafter. He has now engaged the services of a private law firm. He should have done so earlier. In all the circumstances, I reject his explanation for the delay in prosecuting the appeal.

Counsel for the applicant has also raised an interesting point. As I understand it, it is argued that the order striking out the appeal is a "final" order in that it disposes of the substantive matter between the parties. Consequently, the argument ran, instead of seeking to set aside the ex parte order, the applicant should have appealed to the Supreme Court. I was referred, in support of the argument, to the Supreme Court case of Provincial Government of North Solomons v Pacific Architecture Pty Ltd ("North Solomons v. Pacific Adventure"). Pacific Architecture Pty Ltd ("PA") issued a summons against Provincial Government of North Solomons ("PGNS") claiming monies due under a contract. After service of the summons, judgment was entered for default in filing a Notice of Intention to Defend. PGNS applied to have the default judgment set aside. That application was heard and dismissed by the National Court. PGNS then appealed to the Supreme Court, which purportedly dealt with the issue now raised by counsel.

With due respect, I disagree with counsel. The issue before the Supreme Court is not the same here. The issue before the superior court was whether PGNS required leave to appeal. By virtue of s. 14(3) of the Supreme Court Act, leave to appeal is required where the appeal is against an interlocutory order. See Shelley v PNG Aviation Services Pty Ltd. But such leave is not required where the order appealed against is a final order. That was the situation in North Solomons v Pacific Adventure, which is not relevant to this case where the application to set aside is permissible under the National Court Rules Order 12 Rules 8 and or 35. Accordingly, I must reject this argument. 

I return to the appellant’s argument on lack of service. The applicant says that he was not served with the appropriate notice of motion and was therefore unaware that the fate of his appeal was being considered on 13th May 2003. There is no proof of service of the relevant notice of motion on file. Under Order 4 Rule 38, service of a notice of motion is a mandatory requirement. The rationale is obvious. It is just and fair that a respondent is made aware of the proceedings against him, particularly when, as in this case, the orders sought are not interlocutory but those that will finally determine the substantive matter in dispute between the parties. 

There are occasions under Rule 38 where an applicant may not serve but none of those alternatives were explored when the respondent moved for orders striking out the appeal. I note that the respondent forewarned the applicant of his intentions by a letter giving an ultimatum of 14 days for the applicant to speed up the appeal but he was still required to comply with the requirements of Rule 38. Having failed to comply with the mandatory procedural requirements, I am satisfied that the ex parte order was entered irregularly. 

There is however another twist in the matter. I have already mentioned that the appeal was filed out of time. The order of the District Court was made on 19th September 2002. The appeal was filed on 28th October 2002, which is nine days beyond the thirty days requirement within which to file an appeal. 

Does the court ignore the non-compliance and accept the appeal? I do not think so. The right to be heard is guaranteed by the Constitution but finality of litigation is also critical to proper administration of justice. Procedural requirements must be adhered to unless there are good reasons to bend the rules. In this case, I am unable to find any good reason to waive the thirty days requirement. I have already mentioned that the applicant’s accessibility to the National Court Registry is not disadvantaged in any way. It has been nineteen months since 19th September 2002 when the District Court order was made. And, to date, no appeal book has been filed. 

In the circumstances, while I have found against the respondent that the subject order was entered irregularly, I am prepared to censure the applicant’s non-compliance at the first instance. Consequently, by virtue of my powers under the Constitution and the National Court Rules, I will strike out the appeal. 

In relation to costs, having found that both sides have committed procedural errors, the parties should bear their own costs. 

Orders accordingly. 
___________________________________________________________________
Lawyer for the Appellant 	: 	Kunai & Co. Lawyers.
Lawyer for the Respondent	: 	Warner Shand Lawyers