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Fletcher Morobe Construction Ltd v Kinde [2014] PGNC 335; N5703 (7 August 2014)

N5703

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 213 OF 2008

BETWEEN:

FLETCHER MOROBE CONSTRUCTION LIMITED
Appellant

AND

YUBE KINDE
Respondent

Waigani: Gavara-Nanu, J; Nablu, AJ
2014: 7, August

CIVIL PRACTICE AND PROCEDURE – District Court – Application to set aside Court Order for dismissal on summary determination – National Court Rules Order 12, Rule 8 (3)(a).

Cases cited:

No cases cited.

Counsel:

Ms.G Salika, for the Appellant
No Appearance, for the Respondent

7 August, 2014

1. GAVARA-NANU, J and NABLU, AJ: The application before the Court is made by way of a Notice of Motion filed on 30th of May 2014 and sought the following orders;

"1. Order 1 Rule 7 and Order 4 Rule 38(2)(a) of the National Court Rules leave to be granted to the Appellant to dispense with the strict requirements of service of this Notice of Motion and its supporting Affidavit pursuant to Order 6 Rule 4 of the National Court Rules.

2. Order 4 Rule 46(a) of the National Court Rules, leave be granted to the appellant to move this application ex-parte.

3. Pursuant to Order 12 Rule 8(3) (a) of the National Court Rules the Orders of the Court made on 23 April be set aside.

4. The time for entry of these orders is abridged to the date of settlement which shall take place forthwith.

5. Costs of this be in the cause.

6. Such further orders as this Honourable Court considers appropriate."
   

2. On 7th August 2014, the Court granted leave to the Appellant to dispense with the strict requirements of service of the Notice of Motion and its supporting Affidavits pursuant to Order 6 Rule 4 of the National Court Rules and further granted leave to the Appellant to move their application ex-parte, pursuant to Order 4 Rule 46(a) of the National Court Rules.

3. This is the ruling on the application to set aside the Orders of the Court made on the 23 of April 2014.

4. In support of the application the Appellant relied on the affidavits of:

1. Gloria Salika sworn and filed on 30th May 2014; and
   
2. Vagi Jack sworn and filed on 26th May 2014.
   

5. After considering submissions from the Appellant counsel and consultation with the relevant provisions of the National Court Rules, in particular Order 12 Rule 8(3)(a), we exercise our discretion to set aside the Orders of the Court made on 23 April 2014 for the following reasons.

6. The appeal was listed for summary determination. The order to dismiss was not based on the merits of the appeal, but due to non-attendance. Evidence was provided explaining the absence of Counsel.

7. The Affidavit of Gloria Salika provided evidence of a reasonable explanation for non- attendance, which is accepted by the Court.

8. There was no significant delay in bringing the application to Court. The Order was made on 23 April 2014 and the Notice of Motion was filed on 30 May 2014.

9. The Affidavit of Gloria Salika also provided evidence of steps taken by the Appellant to activate the appeal by attempting to file an Appeal Book.

10. For those reasons the Court Orders that;

1. The Orders of the Court on 23 April 2014 dismissing the Appeal are set aside.
   
2. The Appeal- CIA No. 213 of 2008 is re-instated
   
3. The Appeal is expedited.
   
4. The matter is listed for Directions Hearing on 1st of September 2014 at 9:30am.
   
5. The time for entry of these Orders is abridged to the date of settlement which shall take place forthwith.
   
6. Costs be in the cause

___________________________________________________________
Young and Williams Lawyers: Lawyers for the Appellant