N9422
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 635 OF 2017

BETWEEN
KATHERINE KAKARAYA AGIRU
Plaintiff

AND
JACOB POPUNA as the Public Curator
First Defendant

AND
ALEX TONGAYU as the Registrar of Companies
Second Defendant

AND
THE INDPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2021: 22nd June
 2022: 4th February

PRACTICE & PROCEDURE – Application to set aside ex parte order dismissing proceeding – Proceeding dismissed for failing to disclose reasonable cause of action – Notice of claim to State inadequate – Jurisdiction of – Lack of – Application dismissed – National Court Rules – Order 12, rule 8

Cases Cited:
Thomas Barry v. Joel Luma & The State (2017) SC1639
Thomas Rangip v. Fountain Finance Limited & Peter Loko (2009) N3714 Robert Kitika v. Raga Kavana & The State (2010) N4051
Martin Maso v. Oa Ume & 2 Ors (2021) N9122
Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514

Counsel:

Mr. B. Mol, for Plaintiff
Mr. D. Levy, for First Defendant
No appearance, for Second Defendant
Ms. Waiim, for Third Defendant

RULING 
4th February, 2022

1.	MAKAIL J: This is an application to set aside an ex parte order of 7th July 2021.  By this order, the proceeding was dismissed for failing to disclose a reasonable cause of action and finding that the notice of claim was inadequate and contrary to Section 5 of the Claims By & Against the State Act 1996.  The application is made pursuant to Order 12, rule 8 of the National Court Rules.  

Background Facts

2.	On 29th June 2017 the plaintiff served a notice to make a claim against the State on the second defendant pursuant to Section 5 of the Claims By and Against the State Act 1996.

3.	Following that, by an originating summons filed 3rd August 2017 the plaintiff sought an order to be recognised as a beneficiary of the estate of her husband the late Anderson Agiru who passed on in 2016.  

4.	The details and particulars of the estate of late Anderson Agiru are set out in the statement of claim filed on 3rd August 2018 which was filed pursuant to an order of 13th July 2018 which granted leave to the plaintiff to progress the matter by pleadings.

5.	The defendants did not file a defence to the statement of claim.  The plaintiff filed a notice of motion seeking default judgment which was pending.  There was also a pending application for substitution after the plaintiff passed on during the currency of the proceeding and finally, a pending application for contempt against the first defendant. 

6.	On 30th May 2019 the first defendant filed a notice of motion seeking an order to dismiss the proceeding for “for being abuse of process of Court as Section 5 of the Claims By and Against the State Act has not been complied with before instituting these proceedings”. 

7.	On 7th July 2021 the notice of motion was heard.  The first defendant’s lawyers together with the third defendant’s lawyers appeared and were heard.  The plaintiff and the second defendant did not attend.  The Court upheld the motion and dismissed the proceeding because the plaintiff failed to comply with Section 5 of the Claims By and Against the State Act 1996 and also for not disclosing a reasonable cause of action.

8.	About three weeks later, on 30th July 2021 the plaintiff filed the notice of motion constituting the application seeking to set aside the ex parte order of 7th July 2021.

Jurisdiction

9.	Jurisdictional wise, going by the Supreme Court decision in Thomas Barry v. Joel Luma & The State (2017) SC1639, it can be argued with some force that the National Court lacked jurisdiction to set aside an ex parte order dismissing a National Court proceeding as it is a final judgment.  That was a case where the Supreme Court held that the National Court lacked jurisdiction to set aside an ex parte order which dismissed the proceeding for disclosing no reasonable cause of action as it was a final order.  The converse of that is to appeal the ex parte order to the Supreme Court.  

10.	However, it is also arguable that the National Court may set aside its 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; Robert Kittika v. Raga Kavana & The State (2010) N405; Martin Maso v. Oa Ume & 2 Ors (2021) N9122 and Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514.

11.	It will be observed that Robert Kittika case (supra) was decided in 2010, some seven years prior to the Supreme Court decision in Thomas Barry case (supra) of 3rd November 2017.  The Martin Maso case (supra) was decided almost four after the Thomas Barry case (supra). 

12.	With respect, it is not clear if the decision of the Supreme Court in Thomas Barry case (supra) was drawn to the notice of the Court in Martin Maso case (supra) but that decision is authority for the proposition that “ …….ex-parte order dismissing the National Court proceedings for disclosing no reasonable cause of action is a final order and cannot be set aside by way of notice of motion make pursuant to Order 12 Rule 8 of the National Court Rules.”

13.	With no submissions to the contrary, the Supreme Court decision in Thomas Barry case (supra) is binding on this Court and this Court is bound to follow it, even if, with respect, the view expressed in my judgment in Robert Kittika case (supra) offers a contrary view.   

14.	With respect, it does make sense too that an order in the nature under consideration is final regardless of it being made ex parte or in the absence of the plaintiff because the National Court had considered the merit of the issues raised in relation to the viability of the cause of action; first, the Court having considered the question of adequacy of information or details contained in the notice under Section 5 of the Claims By and Against the State Act 1996 and formed a view that it was inadequate.  Because of that, it concluded that the notice that was given by the plaintiff to the State constituted no notice and dismissed the proceeding.  

15.	Secondly, the Court having considered the question of proceeding disclosing no reasonable cause of action concluded that it disclosed no reasonable cause of action.  In other words, there was nothing for the Court to revisit and decide because the issues have been raised, considered and decided.

16.	Contrast this case with an application to set aside an ex parte order dismissing the proceeding for want of prosecution.  A different view in a different case scenario is expressed by the National Court in support of the view that the National Court has jurisdiction to set aside an ex parte order of that nature in Thomas Rangip v. Fountain Finance Limited & Peter Loko (2009) N3714 and Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514.

17.	Finally, while the ex parte order was made pursuant to a motion at an interlocutory hearing, it will be observed that it is a final order as there is no proceeding pending, a case akin to a final ex parte order where liability or assessment of damages has been determined after a trial.

18.	As it is trite law as reinforced by the Supreme Court and National Court in past cases including Thomas Barry case (supra), public interest favours finality to litigation.  Thus, it would be contrary to this principle for the National Court to revisit the ex parte order.

19.	For the forgoing reasons, with respect, it is the conclusion of the Court that to determine the application to set aside the ex parte order on its merits would be inviting the Court to go beyond its jurisdiction.  The plaintiff’s remedy lies elsewhere.  The application is an abuse of process.  It is dismissed.

Order

20.	The orders of the Court are:

1.	The application by notice of motion filed 30th July 2021 is dismissed.

2.	The ex parte order of 7th July 2021 dismissing the proceeding is affirmed forthwith.

3.	The plaintiff shall pay the costs of the application, to be taxed, if not agreed.

4.	Time for entry of these orders shall be abridged to the date of settlement by the Registrar, which shall take place, forthwith
________________________________________________________________
Warner Shand Lawyers: 	Lawyers for Plaintiff
Manase & Co Lawyers: 	Lawyers for First Defendant
Solicitor General: 		Lawyers for Third Defendant