N7994 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1170 of 2003

BETWEEN:
NELULU LAND GROUP INC.
Plaintiff

AND:
RIMBUNAN HIJAU (PNG) LTD
First Defendant

AND:
PASSISMANUA INLAND
TIMBER RESOURCES LTD
Second Defendant

Waigani: Hartshorn J
2017: 6th February
2018: 8th January

PRACTICE AND PROCEDURE - Application to set aside an ex parte order of summary determination

Cases Cited:	    

ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577 
Inchcape Shipping Services (PNG) Ltd v. TG Holdings Ltd (2010) N4268
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144 
National Development Bank Ltd v. Iangalio (2014) N4931
Obadia Buka v. Jude Baisi & Anor (2004) N2602 
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors  (2008) N3317
Rangip v. Loko (2009) N3577 
Re Piunde Ltd (2015) N6656
Schnaubelt v. Chan (2012) N4791 
Wawoi Guavi Timber Co Ltd v. Molu (2016) SC1514

Counsel:

Mr. S. Javati, for the Plaintiff
Mr. I.R. Shepherd, for the First Defendant

8th January, 2018

1.   HARTSHORN J: This is a decision on a contested application to set aside an order of this court that summarily determined this proceeding (summary determination order). The summary determination order was made on 9th December 2016 in the absence of lawyers for the plaintiff (summary determination hearing). The application to set aside is made pursuant to Order 12 Rule 8(1), (2)(b) and (3)(a) National Court Rules and s.155(4) Constitution. 

Background 

2.   The plaintiff, an incorporated land group, commenced this proceeding in August 2003. Evidence given on behalf of the first defendant is that the plaintiff is the registered holder of certificate of title volume 33 folio 44 over land and sea described as Aliwo Passage in the Kandrian District of West New Britain Province. The certificate of title was issued to the plaintiff following a Land Titles Commission determination on 28th October 1996. Not all of these facts are specifically pleaded in the amended statement of claim.

3.   The plaintiff’s title was challenged in proceeding WS 1113 of 1996. The decision to award the title to the plaintiff was initially quashed and that decision was quashed by the Supreme Court in SCA 26 of 1998. The Supreme Court remitted the matter back to the National Court for rehearing. WS 1113 of 1996 has remained pending in the National Court ever since, according to evidence given on behalf of the first defendant.

4.   In this proceeding the plaintiff claims damages against the defendants for amongst others about K4 million for alleged rent due for usage of the Aliwo Passage from 1993 to 2000, pursuant to an alleged undertaking dated 21st December 1993. 

5.   On 21st April 2006, this court ordered amongst others that, “These proceedings are stayed until the issue of validity of the “title” issued by the Land Titles Commission is determined.” This order remains in force. The plaintiff commenced another proceeding, OS 452 of 2006, in which a declaration was sought that its title was valid. On 19th December 2014 the Supreme Court dismissed OS 452 of 2006 and ordered both National Court proceedings WS 1113 of 1996 and this proceeding be consolidated and relisted for directions.

6.   This proceeding was referred by the Registrar for a summary determination hearing on 7th October 2016. Kandakasi J. disqualified himself from hearing the matter on 7 October 2016 and it came before me on 11th November 2016. Only counsel for the first defendant appeared on that date. The matter was adjourned for a summary determination hearing to 9th  December 2016. On that date only counsel for the first defendant appeared and this court made the summary determination order.

This application

7.   The plaintiff submits that the summary determination order should be set aside as:

a)	this application to set aside has been made promptly;

b)	this matter has a long and protracted history and the Supreme Court 	made an order for consolidation involving this proceeding, only two 	years ago;

c)	there is evidence explaining why there was no appearance at the 	summary determination hearing on behalf of the plaintiff and why the 	proceeding has not been progressed since the Supreme Court order for 	consolidation;

d) 	it would be in the interests of justice.

8.   The first defendant submits that the summary determination order should not be set aside as:

a)	the plaintiff has not given an adequate explanation for the non-	attendance of lawyers on its behalf at the summary determination 	hearing;

b)	the only explanation for the said non-attendance is negligence, and the 	negligence of a lawyer is not a reasonable explanation as to why an 	order should be set aside;

c)	if the reasons given for the plaintiff’s lawyers’ non-attendance are 	considered satisfactory the summary determination order should not 	be set aside as:

i)	the plaintiff was directed by the Supreme Court in 1999 to arrange to 	have WS 1113 of 1996 reheard. Nothing has happened for over 16 	years;

ii)	the plaintiff did not progress WS 1113 of 1996 and issued this 	proceeding. This proceeding was stayed on 21st April 2006 pending 	determination of WS 1113 of 1996;

iii)	the plaintiff issued proceeding OS 452 of 2006 but this proceeding 	was dismissed by the Supreme Court in 2014;

iv)	the plaintiff has failed to consolidate and progress the proceeding 	since the Supreme Court order in 2014 without adequate explanation;

v)	the plaintiff has admitted that many if not all of its witnesses have 	died.

Consideration

9.   This court has jurisdiction to set aside a final order made in the absence of a party: Rangip v. Loko (2009) N3577, Wawoi Guavi Timber Co Ltd v. Molu (2016) SC1514. No issue was taken with the jurisdiction of this court to set aside the summary determination order pursuant to the National Court Rules relied upon or s. 155(4) Constitution.

10.   As to reliance upon s. 155(4) Constitution, I need do no more than reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors  (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:

“……..is not the source of primary jurisdictional power. ……… Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma 
More v UPNG [1985] PNGLR 401 at 402.”  
	
17.    In addition, s. 155 (4) cannot be applied to do anything contrary or 
inconsistent with the provisions of the National Court Rules: Louis Medaing 
v. Ramu Nico Management (MCC) Ltd (2011) SC1144. Consequently, I 
consider this application only pursuant to the National Court Rules relied 
upon.

18.   The principles governing the exercise of discretion in considering whether an ex parte judgment or order, or a judgment or order made in the absence of a party should be set aside are well settled: Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73; Smith v. Ruma Constructions Ltd (2002) SC695; Rangip v. Loko (supra); Wawoi Guavi Timber Co Ltd v. Molu (supra) and are:

a)	why the order was allowed to be ordered in the absence of the 	applicant;

b)	if there is a delay in making the application to set aside, a reasonable 	explanation as to the delay;

c)	that there is a defence on the merits. In this instance, as the order 	sought to be set aside is a summary determination, the question to be 	considered is whether the applicant had good prospects of preventing 	the court from ordering that the proceeding be summarily determined.

19.   The evidence on behalf of the plaintiff concerning the absence of representation of the plaintiff at the summary determination hearing is given by Mr. Jeffery Abone, the principal of Parkil Lawyers and the lawyer for the applicant in this proceeding from 3rd December 2004 to 13th December 2016; and Mr. Samson Javati, the current lawyer for the plaintiff.

20.   As to the non-attendance, Mr. Abone deposes amongst others;

a)	that on 9th December 2016 at about 9:15 am he arranged for Mr. Javati 	to attend the summary determination hearing that morning in court 	room 10. Mr. Abone deposes that he had to appear in a contested 	Supreme Court hearing;

b)	Mr. Abone went to court room 10 at about 11:00am and noted that 	Mr. Javati was there. Mr. Javati gave the file back to Mr. Abone. 	When Mr. Abone mentioned the matter before the court, the court 	informed him that the matter had been dealt with earlier.

21.   Mr. Javati deposes amongst others that:

a)	he received a mobile phone call from Mr. Abone at 9:15 am on 9th 	December 2016 requesting him to appear on the matter in court room 	10;

b)	he was attending to another National Court matter in court room 9 	from 9:30 am;

c)	by the time he entered court room 10, he can recall that it was about 	9:50 am or 10:00 am. He gave the file to Mr. Abone when Mr Abone 	arrived.

22.   In my view Messrs Abone and Javati have not given reasonable explanations for there not being representation of the plaintiff at the summary determination hearing	. That they were both in other courts at the relevant time is not a reasonable explanation. Further, Mr. Abone, the lawyer for the plaintiff in this proceeding at the time and since December 2004, knew of the summary determination hearing on the 9th  December as he deposes to affidavits being filed on 6th December for the hearing. He was aware that the hearing concerned whether the plaintiff’s case should be summarily determined, a hearing that could have serious consequences for his client, yet he did not brief another lawyer to appear at the hearing to represent his client until just 15 minutes before the scheduled hearing. Although it is not specifically stated in his affidavit, Mr. Javati accepted instructions from Mr. Abone just 15 minutes before the start of the summary determination hearing, knowing that he was to attend another court at the same time. The decisions and actions of both lawyers in my view are at best questionable and do not constitute proper or acceptable practice or behavior that is expected of lawyers in properly representing a client.

23.   As I said in Rangip v.Loko (supra), the negligence of a lawyer is not a good reason to allow a proceeding that should otherwise be dismissed, to continue. Also a lawyers other commitments are not a reasonable excuse for not attending court on time: National Development Bank Ltd v. Iangalio (2014) N4931. Non-attendance caused by traffic congestion is not a reasonable excuse: NDB Ltd v. Iangalio (supra); Re Piunde Ltd (2015) N6656. In Inchcape Shipping Services (PNG) Ltd v. TG Holdings Ltd (2010) N4268, it was held that amongst others, that the negligence of a lawyer should not constitute a satisfactory explanation as to why judgment was allowed to be entered by default. See also Schnaubelt v. Chan (2012) N4791 in which Makail J. said:

“Time and again, this Court and the Supreme Court have held that lawyers’ negligence is not a reasonable explanation for allowing a default to occur or a ground to set aside a judgment:  Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364 and Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378.”
	
and ABCO Transport Pty Ltd v. Timothy Sakaip (1997) N1577 in which Injia J (as he then was) said:

“His client has a right to sue him for professional negligence. His negligent conduct in allowing his client to suffer the judgment or order cannot be a good basis for an application to set aside the judgment or order of the Court: Leo Dugure v Avia Andrew Paru Unreported Supreme Court judgment SC 510 dated 18 October 1996.”

24.   There is no question of delay in making the application to set aside this instance.

25.   As to whether the plaintiff had good prospects of preventing an order for summary determination, the evidence is that of Mr. Winsdor Kumbi who deposes amongst others that the plaintiff had been having difficulty in progressing the matter since December 2016 due to file WS 1113 of 1996 being missing. In my view this is not a reasonable explanation. The lawyer for the plaintiff at the relevant time Mr. Abone could have arranged with the Registrar to have a substitute or duplicate file created or he could have made an appropriate application to court. That he should have taken such action is particularly so given that this proceeding was commenced in 2003 and the lack of action in progressing the matter. These are matters about which Mr. Abone was or should have been aware. In the circumstances it could be assumed that an application for dismissal for want of prosecution or that the proceeding would be referred for summary determination was likely if prompt action to progress the matter following the decision of the Supreme Court in December 2014 was not taken.

26. There is no adequate explanation as to the lack of progress in prosecuting the proceeding since its commencement in 2003 apart from the proceeding being stayed in April 2006 by Salika J (as he then was). Further, there is no adequate explanation as to what action was taken to progress matters after April 2006 so that the stay could be lifted thus allowing the plaintiff to progress its case.

27.   Having regard to the responsibility of a plaintiff to prosecute its action with due diligence and that it is the plaintiff who has to take the next step in proceedings to get a matter ready for trial: Obadia Buka v. Jude Baisi & Anor (2004) N2602, the evidence given on behalf of the plaintiff in my view, falls well short of establishing that the plaintiff has prosecuted this proceeding to the requisite standard such that an application for its summary determination would be successfully resisted.

28.  As I am not satisfied with the explanation as to why the order for summary determination was allowed to be ordered in the absence of representation of the plaintiff, and I am not satisfied that the plaintiff had good prospects of preventing this court ordering the summary determination of this proceeding, the application to set aside should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

29.  It is ordered that:

a)	all of the relief sought in the amended notice of motion of the plaintiff 	filed 21st December 2016 is refused;

b)	the plaintiff shall pay the costs of the first defendant of and incidental 	to the amended notice of motion of the plaintiff filed 21st December 	2016;

c)	time is abridged.
__________________________________________________________
Javati Lawyers:    Lawyers for the Plaintiff                                                        
Ashurst Lawyers: Lawyers  for the First Defendant