N8052

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1348 of 2015

BETWEEN:
COURTS (PNG) LIMITED
Plaintiff

AND:
MICHAEL’S & MICHAEL’S LIMITED
First Defendant

AND:
MICHAEL RAMSEY EKRI
Second Defendant

AND:
NOELYNNE EKRI
Third Defendant

AND:
McKUAN MICHAEL JUNIOR EKRI
Fourth Defendant

Waigani: Hartshorn J.
2018: 11th April
2019: 19th June

Application to set aside ex parte order

Cases Cited:

Smith v. Ruma Constructions Ltd (2002) SC695
Morobe Provincial Government v. Tropical Charters Ltd (2009) N4160
Rangip v. Loko (2009) N3714
Gelu v. Somare (2009) N3647
Paradise Contractors v. Milne Bay Provincial Government (2010) N3975
National Development Bank Ltd v. Masket Iangalio (2012) N4931
Re Piunde Ltd (2015) N6656

Counsel:

Mr. B. Nutley, for the Plaintiff
Mr. D. Siminji, for the Defendants

19th June, 2019

1. HARTSHORN J. This is a decision on a contested application to set aside an ex parte order that dismissed a notice of motion for want of prosecution (dismissal order). The notice of motion that was dismissed (set aside motion) had sought to set aside a judgment that had been entered against the first, second and third defendants and to stay a writ for levy of property. It had also sought leave to file a defence out of time.

Background

2. The plaintiff commenced this proceeding in September 2015 seeking judgment against the four defendants. Judgment was entered in the sum of K 2,830,147.00, together with other orders for the disposal of property, on 22nd April 2016. The setaside motion was filed over one and a half years later, on 26th October 2017 and was dismissed for want of prosecution on 15th March 2018.

3. This application to set aside the dismissal order is made pursuant to s. 155(4) Constitution, Order 4 Rules 37 and 38(1) and Order 12 Rules 1, 8(2)(b),(3)(a) and (4) National Court Rules. No objection was taken to the jurisdictional bases relied upon by the defendants.

Contentions

4. The defendants contend that the dismissal order should be set aside as:

a)	The reason that the dismissal order had been made in the absence of representation of the defendants was that counsel for the defendants had been prevented from attending court on time because of traffic congestion;

b)	There has not been any delay in making this application;

c)	There is a reasonable explanation why the set aside motion was not 	prosecuted;

d)	There is a defence on the merits and it is in the interests of justice.

5. The plaintiff contends that the dismissal order should not be set aside as amongst others:

a)	The reason given for counsel not attending court in time is not sufficient or reasonable and the reason for his non-attendance was due to negligence:

b)	After the set aside motion was dismissed, the defendants should have applied for the same relief that had been sought in the set aside motion. That they are now seeking to set aside the dismissal of a motion which sought to set aside, is an abuse of process;

c)	Substantive orders were made on 22nd April 2016 with orders entering judgment and for the disposal of property. Such orders should not lightly be set aside.

Consideration

6. The dismissal order sought to be set aside was made pursuant to Order 4 Rule 49(17) National Court Rules which provides that: 

“The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”

7. It is not contended, as I understand, that this court did not have the jurisdiction to make the dismissal order or that the court fell into error in making the dismissal order. It is not in dispute that the set aside motion was filed on 26th October 2017 and that the dismissal order was made over four months later.

8. The court has jurisdiction to set aside an ex parte National Court Order that dismisses a motion for want of prosecution: Paradise Contractors v. Milne Bay Provincial Government (2010) N3975, Morobe Provincial Government v. Tropical Charters Ltd (2009) N4160, Rangip v. Loko(2009) N3714, National Development Bank Ltd v. Masket Iangalio (2012) N4931, and Re Piunde Ltd (2015) N6656.

9.The principles governing the exercise of discretion as to whether an ex parte order should be set aside are well settled and were detailed by Kapi DCJ (as he then was) in Smith v. Ruma Constructions Ltd (2002) SC695: see also Rangip v. Loko (supra). The onus is on the applicant to satisfy the court:
a)	Why the order was allowed to be entered 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; and
c)	that there is a defence on the merits.	
10. In this instance as the order sought to be set aside is a dismissal for want of prosecution and not a default judgment, the principle to be considered is whether there is a reasonable explanation for the proceeding, or here the defence, not being prosecuted with due diligence.
11. There is no delay in making the application. The dismissal order was made on 15th March 2018 and the notice of motion containing this application was filed on 20th March 2018.

12. As to why the dismissal order was allowed to be made in the absence of representation on behalf of the defendants, counsel for the defendants in his evidence deposes that he and his office driver left his office at 9:00am to travel to court. As a result of traffic congestion, he arrived in court at 9:38am. I was delivering my ruling when he arrived.

13. Counsel for the plaintiff submits that this explanation of counsel for the defendants is not reasonable and his late arrival is due to his negligence.

14. The traffic congestion in Port Moresby and on the roads leading to the courts in Waigani is commonly known to all lawyers who regularly appear at the Waigani Supreme and National Courts and lawyers should plan accordingly. I referred to this in National Development Bank Ltd v. Masket Iangalio (supra). I note also the following remarks by Kariko J in Re Piunde Ltd (supra) at [3] and [4]:

“3.	The plaintiff’s counsel explains that he was about eight minutes late in arriving at Court on 8th July 2015 as he was held up by the traffic congestion brought on by the Pacific Games then underway in the city.

4.	The excuse of being caught up in the traffic is a frequent excuse submitted by counsel for lateness, at least in my Court, and I am in agreement with the observations of Hartshorn, J in National Development Bank Limited v Masket Iangalio (2012) N4931 that because of the commonly known traffic issues in the city, it is imperative for lawyers appearing in the Waigani Supreme and National Courts that they plan their travel so they arrive at court on time. I am unable to find the excuse offered by Mr. Gagma as reasonable for his late arrival.”

15. I am not satisfied that the reasons given by counsel for the defendants for his non-attendance in court when the set aside motion was called are reasonable. It is known that there is traffic congestion on the roads in Port Moresby and on the roads leading to the courts at Waigani. It is not a new phenomenon. Counsels have a duty to be in court at the time that the court is scheduled to commence. That counsel for the defendants was prevented from attending court in time because of traffic congestion in these circumstances, is not a reasonable explanation.

16. As to an explanation for the defence not being prosecuted or conducted with due diligence, in the affidavit evidence of counsel for the defendants, he deposes that amongst others, as to the set aside motion being fixed for hearing but not being listed in November 2017, writing three consecutive self-explanatory letters to the Registry to have the set aside motion listed and making personal enquiries at the Registry.

17. Counsel for the defendants does not give any evidence as to why the set aside motion was not filed until over one a half years after judgment had been entered. In this regard, I note that the evidence is that a copy of the judgment was served on the first defendant’s business address and on its registered office on 28th April 2016. Further, there is no evidence as to why the defendants did not enter an appearance and file a notice of intention to defend and defence after the proceeding was commenced and the defendants were served.

18. Moreover, to the extent that the defendants may be contending that court staff or the Registry contributed to delay, I refer to my remarks in Gelu v. Somare (2009) N3647, repeated in National Development Bank v. Masket Iangalio (supra), that it is not appropriate for an applicant to sit and wait for a reply from the Registry. It is always open to an applicant to file a notice of motion seeking further directions for a hearing date if it is believed that by writing to the Registry, satisfaction is not being obtained. 

19. Given the paucity of evidence concerning the defendant’s defence of this proceeding being prosecuted with due diligence and, amongst others, that the set aside motion was dismissed for want of prosecution after being filed over one a half years after judgment had been entered, I am not satisfied that the defendants have demonstrated that their defence of this proceeding has been prosecuted with due diligence.

20. As I have found that the explanations given for the dismissal order being made in the absence of representation of the defendants and the defence of the proceeding not being prosecuted with due diligence are not reasonable, the orders sought by the defendants should be refused. I am satisfied that the defendants’ have not satisfactorily made out their case, and it is not in the interests of justice that the orders that they seek be granted. Given this it is not necessary to consider the other submissions of counsel.

Orders

21.  The Court orders that:

a)	The orders sought in the notice of motion of the defendants filed 20th March 	2018 are refused;

b)	The plaintiff’s costs of and incidental to the said motion shall be paid by the defendants;

c)	Time is abridged.
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O’Brien’s Lawyers:  Lawyers for the Plaintiff                                                     
Mirupasi Lawyers:  Lawyers for the Defendant