N3567

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 99 OF 2006

BETWEEN:

PNG POWER LIMITED
Appellant

AND:

TIMOTHY KUMIE
Respondent

Mount Hagen: Makail, AJ
2008: 14 July
: 22 December

CIVIL APPEAL - District Court appeal - Entry of ex parte order - Application to set aside - Refusal of application to set aside - Assertion of no notice of claim given - Evidence shows notice of claim given - Onus of proof shifts to party asserting no notice of claim given - Application to strike out for want of notice of claim refused - Appeal misconceived - No miscarriage of justice - Appeal dismissed.

No cases cited:

Counsel:

Mr Koeya Peri, for the Appellant
Respondent In person 

JUDGMENT

22 December, 2008

1. MAKAIL AJ: The Appellant appeals the decision of the Minj District Court of 19 April 2006 where the learned Magistrate refused to set aside an ex parte Order of the same Court of 15 February 2006 which ordered the Appellant to pay a total sum of K8, 719.60 inclusive of costs and interest to the Respondent.

BRIEF FACTS

2. The brief facts giving rise to the appeal are these; in the District Court, the Respondent sued the Appellant and two others, they being the District Administrator of North Waghi and the Western Highlands Provincial Government for trespassing on his land; that is for unlawful destruction of coffee trees and shade trees on his land when the Appellant entered and erected power poles for power lines to run through the Respondent’s land to Nondugol.

3. The District Administrator of North Waghi and members of the Appellant attended to the Respondent and assured him that he would be compensated for the loss of his coffee trees and shade trees. It is not known whether it would be the Western Highlands Provincial Government or the Appellant that would pay compensation to the Respondent and even after the cutting down of the shade trees and coffee trees to clear the way for the Appellant to erect the power poles and power lines, no compensation was paid to the Respondent.

4. The Respondent followed up payment with the Appellant and the Western Highlands Provincial Government and still no payment was forthcoming. On 26th September 2005, the Respondent commenced proceeding at the Minj District Court to claim damages against the Appellant, the District Administrator of North Waghi and the Western Highlands Provincial Government for trespass. On 9th December 2005, the Appellant filed an application to dismiss the proceeding for want of notice of claim prior to commencing the proceeding under section 5 of the Claims By & Against the State Act 1996. 

5. On 15 February 2006, the District Court entered judgment against the Appellant, the District Administrator of North Waghi and the Western Highlands Provincial Government in the total sum of K8,719.60 to be paid within two months despite the Appellant’s lawyers written request for an adjournment as Mr Koeye Peri, the lawyer having carriage of the matter was attending to a criminal trial before the National Court on that date.

6. On 16 March 2006, the Appellant filed another application to set aside the order of 15 February 2006. Although the application was listed for hearing on 25 March 2006, it is not known what occurred on that date but what is known is that on 16 May 2006, the Clerk of Court wrote to the Appellant’s lawyers to advise them that the application was struck out as being filed out of time and the order of 15 February 2006 confirmed. 

GROUNDS OF APPEAL

7. In the Notice of Appeal, the Appellant relies on the following grounds of appeal:

"1.	The court erred in Law in refusing to hear an application to set aside an ex parte order entered against the First Defendant when the Order made on 20th of February 2006, was made an ex parte Order and not a final one.

2.	The court erred in Law in refusing to hear the application to set aside the ex parte order entered on 20th of February 2006, when there was no evidence before the Court of the Complainant had complained with Section 5 of the Claims By And Against the State Act.

3.	The court erred in Law when it refused to hear the application to set aside the ex parte order entered on 20th of February 2006, when the Court Order of 20th February 2006 was unclear as to which Defendant should pay the Complainant’s judgment debt including costs and interest when the judgment was not apportioned.

4.	The court erred in law in refusing to hear the application to set side the ex parte order when there was evidence before the court filed by the Complainant himself that the Third Defendant maybe responsible to the alleged destruction caused to Complainant’s properties.

5.	Any other grounds of appeal which may become available at the hearing of the Appeal".

GROUND 1 OF NOTICE OF APPEAL

8. This ground of appeal raises the issue of whether or not the application of the Appellant by its undated Notice of Motion located at page 42 of the Appeal Book seeking to set aside the ex parte order of 15 February 2006 was heard and decided by the learned Magistrate? 

9. It should also be mentioned here that when I am referring to the order of 15 February 2006, it is the same order as the one of 20 February 2006 because it was made on 15 February 2006 and entered on 20 February 2006. See page 40 of the Appeal Book for a copy of the said order. 

10. Mr Peri of counsel for the Appellant argues that the learned Magistrate erred in law when he refused to hear the application to set aside the order of 15 February 2006 as the said order was an ex parte order and not a final one. Since the order is an ex parte one, the principles of setting aside an ex parte order applies and if the learned Magistrate did apply those principles, it would have been clear to him that he ought to have heard the application to set aside the said order rather than striking it out.

11. I have perused carefully the court depositions in the Appeal Book and I can find no order or written notes of the learned Magistrate of 19 April 2006 showing that the learned Magistrate refused the Appellant’s application to set aside the order of 15 February 2006. In other words, there is no evidence before me to suggest that the learned Magistrate did decide the Appellant’s undated Notice of Motion located at page 42 of Appeal Book.

12. The only information relative to the issue of whether or not the learned Magistrate did make a decision on the Appellant’s application to set aside the order of 15 February 2006 are the letter from the Clerk of Minj District Court to the Appellant’s lawyers dated 16 May 2006 and the learned Magistrate’s notes at pages 46 and 63 of the Appeal Book respectively. These documents suggest that first, the Appellant’s application to "have the entire proceeding dismissed" is struck out due to late filing and the order of 15 February 2006 is confirmed and secondly, the Appellant’s application is to dismiss the entire proceeding and not to set aside the ex parte order of 15 February 2006.

13. These are two important pieces of information because as it will become clear later, as I said above I can find no orders or written notes of the learned Magistrate of 19th April 2006 to refuse the Appellant’s application to set aside the order of 15th February 2006 in the Appeal Book. So what does this mean? To my mind, it means that there is no order or decision of the learned Magistrate to refuse the Appellant’s application to set aside the ex parte order of 15th February 2006. It follows that the only decision or order is the one that the learned Magistrate refers to in his notes at page 63 of the Appeal Book.

14. It is the order or decision to strike out the Appellant’s application by its Notice of Motion filed on 9 December 2005 seeking to dismiss the proceeding for want of notice of claim. The Appellant’s Notice of Motion can be found at page 36 of the Appeal Book and for purposes of clarity, I quote the relevant parts of the learned Magistrate’s notes hereunder:

"Court:	Applicant had file (sic) a motion to strike out - reasons being it is against claims by and against the State Act 1997 or entire proceedings be dismissed.

Court:	There is an (sic) notice already given on the 15 of February 2006, the motion to strike out the entire proceedings come a little bit late.

Therefore Court order:

Motion struck out for late filling. 
Respondent be discharged from this application".

15. To my mind, it is no wonder, based on this order of the learned Magistrate, the Clerk of Minj District Court wrote to the Appellant’s lawyers on 16 May 2006 to advise that their application to struck out or dismiss the proceeding for want of notice of claim was struck out by the learned Magistrate for late filing. In other words, I do not think the Clerk of Court was referring to the Appellant’s application to set aside the ex parte order of 15 February 2006 when she referred to the application as being struck out for late filing.

16. Proceeding on this premise, this is where I reject Mr Peri’s submission that it is wrong for the learned Magistrate to refuse to hear the application to set aside the order of 15 February 2006 as the said order was an ex parte order and not a final one. His submission is not only illogical but also not supported by relevant evidence. I say this because there is no evidence before me to suggest that the learned Magistrate did decide the Appellant’s application. Hence, I am led to conclude that the application is still pending.

17. It also means that there is no basis to appeal the decision or order of the learned Magistrate to refuse to set aside the ex parte order of 15 February 2006. Accordingly, there is no basis for the learned Magistrate to rely on the principles of setting aside an ex parte order of 15 February 2006 to decide the application to dismiss the proceeding for want of notice of claim under section 5 of the Claims By & Against the State Act 1996.

18. But even if there is indeed an order or decision of 19 April 2006, it has not been produced before me, thus I am led to conclude that there is no such order or decision in existence. Accordingly, I find that the Appellant has appealed an order or decision that does not exist and in my view this ground of appeal is misconceived and I dismiss it.

GROUND 2 OF NOTICE OF APPEAL

19. This leads me to the second ground of appeal which raises the issue of whether or not the Respondent did give notice of claim under section 5 of the Claims By & Against the State Act 1996 to the Western Highlands Provincial Government.

20. Mr Peri submits that the Respondent did not give notice of claim to the Western Highlands Provincial Government before commencing the proceeding in the District Court. On this basis, he submits that even though the learned Magistrate heard the matter ex parte, he must be satisfied that the Respondent did give notice of claim before he could proceed to hear the complaint and make the order of 15th February 2006. 

21. This ground of appeal can be dealt with quickly because there is evidence before the learned Magistrate that the Respondent did give notice of claim to the Western Highlands Provincial Government. 

22. In this respect, I refer to paragraph 5 of the Affidavit of Michael Sapan at page 21 of the Appeal Book where this witness states that "A notice of intention to sue was served on the Provincial Administrator on behalf of the Western Highlands Provincial Government". Whilst, Mr Sapan did not say when the Respondent served the notice of claim on the Western Highlands Provincial Government, nonetheless, there is no dispute that Mr Sapan is from the District Administration Office at Banz and he says that a notice of claim was served on the Provincial Administrator of the Western Highlands Provincial Government. 

23. Thus, I find that the Respondent did serve a notice of claim on the Western Highlands Provincial Government. Further, if the Appellant asserts that the Respondent did not give a notice of claim to the Western Highlands Provincial Government, then the onus is on the Appellant to prove by appropriate Affidavit evidence the assertion. As far as the Respondent is concerned, he did give the required notice and in my view has discharged the onus bestowed upon him. It therefore means that the onus of proving that no notice was given to the Western Highlands Provincial Government shifts to the Appellant.

24. Proceeding on this premise, I find that there is no Affidavit evidence from the Appellant showing that it did enquire with the Western Highlands Provincial Government on such a date and time and the name of the person or officer of the Western Highlands Provincial Government if the Respondent did give notice of claim to the Western Highlands Provincial Government and found that no such notice was given to the Western Highlands Provincial Government. It is no wonder and quite correctly why the learned Magistrate said in his decision at page 63 of the Appeal Book that the "……...[t]here is an notice already given on the 15 of February 2006, the motion to strike out the entire proceedings come a little bit late".

25. For these reasons, I find no error in the decision of the learned Magistrate in this respect. He was perfectly entitled to find based on the evidence available before him that the Respondent did give the necessary notice of claim to the Western Highlands Provincial Government under section 5 of the Claims By & Against the State Act 1996. I dismiss this ground of appeal. 

GROUNDS 3 & 4 OF NOTICE OF APPEAL

26. I will consider grounds 3 and 4 of the Notice of Appeal together because they raise the central issue of whether or not the learned Magistrate should have proceeded to hear the application of the Appellant to set aside the ex parte order of 15 February 2006. As I have found under ground 1 of the appeal, the only application of the Appellant which the learned Magistrate heard and determined was the application to strike out the proceeding for want of notice of claim under section 5 of the Claims By & Against the State Act 1996. That has led me to conclude that the Appellant’s application to set aside the ex parte order of 15th February 2006 is still pending. It follows that the Appellant has to prosecute that application before the District Court on a date to be fixed.

27. It also means that the issue raised by the Appellant in these grounds of appeal like for example, the Western Highlands Provincial Government maybe wholly liable for damages as a result of the actions of the Appellant can be litigated before the District Court. In my view, it is not an issue that this Court can decide because the application to set aside the ex parte order of 15th February 2006 is yet to be heard and decided.

CONCLUSION

28. In conclusion, according to the decision of the learned Magistrate of 15 February 2006 at pages 40 and 49 of the Appeal Book, the Appellant, the District Administrator of North Waghi and the Western Highlands Provincial Government must apportion the damages and pay the Respondent. In this respect, I note that the learned Magistrate did not apportion the amounts for the parties but in my view, the omission is not a fatal error because it is entirely up to them to decide for themselves how much each party should pay like for example, in equal shares.

29. It follows, I find the Appellant has not established in its grounds of appeal where the learned Magistrate fell into error. I find there is no miscarriage of justice as the entire appeal is misconceived.

ORDERS

Accordingly, I dismiss the appeal and uphold the decision of the District Court of 15 February 2006 in the sum of K8, 719.60 and order the Appellant to pay the Respondent’s cost of the appeal to be taxed if not agreed.

Orders accordingly.

____________________________________________

Warner Shand Lawyers: Lawyers for the Appellant	
The Respondent in Person