N9419
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 235 OF 2005

BETWEEN
SOIAT WILLIAMS
Plaintiff

AND
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
FRANCIS DAMEM, ATTORNEY GENERAL & PRINCIPAL LEGAL ADVISOR TO THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND
JOHN KALI, SECRETARY OF THE DEPARTMENT OF PERSONNEL MANAGEMENT
Third Defendant

AND
KOIARI TARATA, SECRETARY OF THE DEPARTMENTOF TREASURY
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani:  Makail, J
2021:  24th September
2022: 4th February

PRACTICE & PROCEDURE – Application to set aside order – Order for summary dismissal of proceeding and have the proceeding reinstated –Matter listed for summary determination hearing – Inactivity – Delay of – Explanation for delay – Court directed parties to settle – Out of court settlement negotiations – Failure by defendants to settle – Application upheld – Setting aside of summary dismissal order – National Court Rules – Order 12, rule 8

Cases Cited

Thomas Rangip v. Fountain Finance Limited & Peter Loko (2009) N3714
Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514

Counsel:

Plaintiff in person
Mrs. R. Gelu, for Defendants

RULING

4th February, 2022

1.	MAKAIL J:  This is an application to set aside an order for summary dismissal of the proceeding of 11th May 2016 and reinstate the proceeding pursuant to Order 12, rule 8 of the National Court Rules.

Background Facts

2.	According to the plaintiff’s affidavit filed 13th September 2017, on 16th June 2000, he was appointed as the Secretary for the Department of Personnel Management (DPM).  

3.	On 29th June 2000, he signed a contract of employment.  The contract was for four years.

4.	On 16th November 2000 he was suspended from office.  He was directed to vacate the office and barred from the office thereafter.

5.	On 20th November 2000 his suspension was lifted and his appointment as the Secretary for DPM was revoked in the interest of the State.

6.	On 23rd November 2000 Patterson Lawyers filed an originating summons and sought a declaration that the plaintiff’s suspension was illegal as no notice of suspension was given and in retrospect the revocation of the plaintiff’s appointment as Secretary for DPM was illegal, null and void.

7.	On 19th May 2003 an amended originating summons was filed.  

8.	On 4th June 3003 the plaintiff was granted leave to file a statement of claim and the proceeding to progress by way of pleadings.  

9.	The statement of claim was served on the defendants on 2nd July 2003.  The defendants filed a notice of intention to defend but failed to file a defence.

10.	On 8th October 2003 default judgment was entered against the defendants after an inter parte hearing.

11.	The defendants appealed the default judgment to the Supreme Court.  On 7thDecember 2005 the Supreme Court dismissed the appeal.

12.	Negotiations for out of court settlement failed and the matter was not progress to trial.

13.	On 11th May 2016 the matter was listed for Summary Determination by the Court.  The plaintiff did not appear and the matter was summarily dismissed.

14.	On 13th September 2017 the plaintiff filed the application by notice of motion to set aside the order for summary dismissal.  

15.	The notice of motion was not heard until the matter was once again listed for Summary Determination on 6th August 2021 by the Court.

17.	The plaintiff appeared and was given the opportunity to prosecute the application.  The application was listed for hearing on 24th September 2021 at 9:30 am.

18.	On 15th September 2021, the plaintiff filed a further application by notice of motion.  On 24th September 2021, the plaintiff appeared, sought and was granted leave to withdrawn the application filed on 13th September 2017.

19.	The plaintiff moved the application filed 15th September 2021.  Mrs Ruth Gelu of counsel for the defendants appeared and opposed the application.

Jurisdiction

20.	Jurisdictional wise, the Court may set aside it own order made ex parte pursuant to the power conferred under Order 12, rule 8 of the National Court Rules. see also Thomas Rangip v. Fountain Finance Limited & Peter Loko (2009) N3714 and Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514.

21.	The onus is on the plaintiff to provide a reasonable explanation for allowing the order for summary dismissal to be made in his absence, that if there has been delay in making the application to set aside, a reasonable explanation for the delay and a reasonable explanation for the delay in prosecting the matter.

Reasonable explanation for allowing the order for summary dismissal to be made in the absence of the plaintiff

22.	The plaintiff said that he was not aware that the matter was listed for summary determination on the date in question and did not attend the hearing.  As a result the matter was summarily dismissed.

23.	It will be noted that the matter was listed for Summary Determination by the Court and not at the request of the party who would usually serve a notice on the plaintiff or if by notice of motion, a copy of the motion, would be served on the plaintiff to prompt the plaintiff to attend the hearing.

24.	The notice of summary determination hearing was published in the newspaper.  Based on the bare minimum on the question of a reasonable explanation, the plaintiff has explained why he did not attend the summary determination hearing.  

25.	He was not aware of the matter being listed for summary determination hearing and has satisfied this requirement.

Reasonable explanation for the delay in making the application to set aside the summary dismissal order

26.	It is common ground between the parties that between 11th May 2016 when the matter was summarily dismissed and 13th September 2017 when the plaintiff filed the application to set aside, 1 year and 4 months had lapsed.

27.	In his affidavit filed 13th September 2017 the plaintiff explained that he met and discussed out of court settlement with the lawyers of the Solicitor General’s office on 29th August 2016 and 2nd September 2016 but was not informed that the matter was summarily dismissed on 11th May 2016.

28.	It was not until 18th October 2016 when he was informed by the lawyers of the Solicitor General’s office that the matter had been summarily dismissed on 11th May 2016.

29.	Then as a lay person he was caught between differing court decisions to file an appeal to the Supreme Court against the order for summary dismissal or apply back to the National Court to have it set aside.  

30.	Finally, he had no money to engage a lawyer until he met Mr F. Kuvi who offered to assist him.

31.	The defendants do not seriously contest the explanation offered by the plaintiff.  While public interest favoured finality to litigation, this was a case where the plaintiff made effort to prosecute the matter, part of it was seeking an out of court settlement on quantum as default judgment had been entered against the defendants and the defendant’s appeal to the Supreme Court had been dismissed.

32.	The other aspect was about the plaintiff being caught between appealing to the Supreme Court or applying to set aside the summary dismissal order in the light of the conflicting Court decisions on the question of jurisdiction to set aside a summary dismissal order,

33.	The final aspect is the question of affordability of a lawyer.  The answer to the question will vary on a case-by-case basis depending on an applicant’s source of income, amount received as income and amount to pay as legal costs.

34.	Lack of funds should not always operate against an applicant where the applicant relies on it to explain the cause of delay unless there is evidence to the contrary.  The benefit of doubt will be given to the plaintiff.  Lack of funds was another reason for the delay.

35.	The plaintiff has sufficiently explained the delay in making the application to set aside the summary dismissal order.

Reasonable explanation for the delay in prosecuting the matter

36.	The question of quantum of damages remains to be decided in this proceeding following an unsuccessful appeal by the State against the entry of default judgment when the appeal was dismissed on 7th December 2005.

37.	What then is the plaintiff’s explanation for the delay in prosecuting the matter since 7th December 2005?

38.	In his affidavit filed 13th September 2017 he explained that on 20th December 2005 his then lawyers Norbet Kubak & Co Lawyers wrote to the then lawyers for the defendants Posman Kua & Aisi Lawyers requesting out of court settlement on quantum of damages.

39.	For then on, either the plaintiff in person or through his lawyers had followed up by letters or meeting with different Ministers for Justice and Attorney-General up until 5th June 2015 to settle the matter out of court.

40.	On 1st September 2006 the plaintiff’s lawyers filed a Statement of Agreed and Disputed Facts and Issues for Trial.  There was even an order by the National Court on 9th June 2010 directing parties to settle the matter by 8th September 2010, failing which the matter would be stand dismissed.

41.	The plaintiff said that his lawyers applied to the Court and the order was extended but it is unclear if that was the case because he does not produce an order to that effect.  Nonetheless, the matter remained on the Court’s list and ended up being summarily dismissed on 11th May 2016.

42.	The plaintiff said that he honestly believed he had to comply with the order of 9th June 2010, that is, parties must settle the matter by 8th September 2010.  That is why he made effort to get the defendants to settle the matter.  That is not an unreasonable explanation.  On the other hand, the defendants are partly to be blamed for the cause of the delay because they did not comply with the order of 9th June 2010.

43.	  Not only that but given the plaintiff’s numerous representation to the defendants, they have shown little and no interest to settle the matter.  All that was necessary was to agree on an amount to award as damages to the plaintiff.  The amount was always negotiable.

44.	While the plaintiff was pursuing settlement, he did not inform the Court of that.  This resulted in the matter being listed for summary determination hearing on 11th May 2016 and ended up being summarily dismissed by the Court.

45.	All up, from 7th December 2005 to 11th May 2016, a period of 10 years and 5 months had lapsed.  However, the plaintiff has satisfactorily explained the delay.  

Order

46.	The orders of the Court are:

1.	The application by notice of motion filed 15th September 2021 is upheld.

2.	The order of 11th May 2016 summarily dismissing the proceeding is set aside forthwith.

3.	The proceeding is reinstated forthwith.

4.	The matter is adjourned to Tuesday 8th February 2022 at 9:30 am for directions hearing pending plaintiff to prepare draft directions for Court’s endorsement.

5.	The defendants shall pay the costs of the application, to be taxed, if not agreed.

6.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Plaintiff	       :		Self-represented
Solicitor General:		Lawyers for Defendants