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Top Brat Trading Ltd v PNG Tonner & Ink Supplies Ltd [2023] PGNC 225; N10397 (7 July 2023)

N10397

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 322 OF 2020

BETWEEN:
TOP BRAT TRADING LIMITED
Plaintiffs

AND:
PNG TONNER & INK SUPPLIES LIMITED
First Defendant

AND:
PETER VIRIT
Second Defendant

AND:
ALA ANE, ACTING REGISTRAR OF TITLE, Department of Lands & Physical Planning Board
Third Defendant

AND:
BENJAMIN SAMSON, SECRETARY – Department of Lands & Physical Planning
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kokopo: Dingake J
2023: 07^th July

PRACTICE AND PROCEDURE – motion by applicant to dispense with requirement of service - Applicant, in order to succeed in being granted dispensation sought, must give good reasons why he cannot serve the other parties who have interest in the matter as required by the rules - where the interest of justice so requires, strict adherence to the rules can be dispensed with depending on the circumstances of each case - ex parte application, is an exception to the rule that notice of legal proceedings must be given to every person whose rights may be affected by an order made or has an interest in any Order made (audi alteram partern principle) - ex parte application maybe granted where the applicant is the only party interested or affected by the relief sought or where immediate relief is required because any delay would precipitate the very harm sought to be avoided - applicant has not satisfied the prerequisite for dispensation with the requirement of service of Notice of Motion and the Affidavit in support - Application to dispense with requirements for service of the Notice of Motion and the Affidavit in Support is refused - Order 1 Rule 7 & 15 and Order 4 Rule 38 (2) (d) of the National Court Rules.

Cases Cited:

Anthony John Polling v Motor Vehicle Insurance (PNG) Trust and Others [1986] PNGLR 228

Counsel:

Mr. Rakatani Raka, for the Plaintiffs
Mr. Stanis Japson, for the First Defendant
Ms. Elsie Takaboy, for the Third, Fourth & Fifth Defendants

RULING

07^th July, 2023

1. DINGAKE, J: This is my ruling with respect to the Applicant’s application, brought ex parte, to dispense with the requirements of service of the Notice of Motion and Affidavit filed in support.
   
2. The application is brought in terms of Order 1 Rule 7 & 15 and Order 4 Rule 38 (2) (d) of the National Court Rules.
   
3. If the dispensation sought is granted, the Applicant seeks, inter alia, that an Order dismissing the proceedings herein, on 15^th of June, 2023, for Want of Prosecution be set aside and proceedings re-instated forthwith.
   
4. On the evidence filed it would seem that the 3^rd, 4^th and 5^th Defendants were served with this Application and the Affidavit in support on the 30^th of June, 2023. In my calculation they were short served by a day.
   
5. The evidence filed suggests that the First and Second Defendants were served on the 4^th of July, 2023 and this application was moved on the 5^th of July, 2023.
   
6. The application relies on the affidavits of Liping Lin and Rakatani Raka for the reliefs sought in the Notice of Motion.
   
7. At the time the application was moved, on the 5^th of July, 2023, the other Defendants did not appear, possibly because they were short served.
   
8. There is not much in the supporting affidavits filed of record that support the relief sought in Term one (1) of the Notice of Motion filed on the 30^th of June, 2023.
   
9. There is an averment at paragraph 4 of Mr. Liping Lin affidavit filed on the 30^th of June, 2023, that since the Court made Orders of the 15^th of June, 2023, in dismissing the mater for Want of Prosecution, the Second Defendant and his adult children have been harassing the staff employed at the supermarket on the said property, the subject of the proceedings.
   
10. Essentially and fundamentally, there are no factual averments or allegations that justify why this Court should dispense with the requirements for service.
    
11. In my considered opinion the Applicant, in order to succeed in being granted dispensation sought, must give good reasons why he cannot serve the other parties who have interest in the matter as required by the rules.
    
12. It is trite learning that where the interest of justice so requires, strict adherence to the rules can be dispensed with depending on the circumstances of each case (Anthony John Polling v Motor Vehicle Insurance (PNG) Trust and Others [1986] PNGLR 228).
    
13. On an application to dispense with strict compliance with the rules good reasons for the dispensation sought must be advanced, such as the difficulty experienced in serving the other parties or the need for urgent relief.
    
14. The question whether good reasons exist depends on the evidence placed before the Court and the circumstances of each case.
    
15. It is trite learning that an ex parte application, is an exception to the rule that notice of legal proceedings must be given to every person whose rights may be affected by an order made or has an interest in any Order made (audi alteram partern principle).
    
16. Ordinarily, an ex parte application maybe granted where the applicant is the only party interested or affected by the relief sought or where immediate relief is required because any delay would precipitate the very harm sought to be avoided.
    
17. In this case the applicant has not satisfied the prerequisite for dispensation with the requirement of service of Notice of Motion and the Affidavit in support.
    
18. It is trite law that the Court may only consider the balance of the relief sought in the Notice of Motion where it has been satisfied that a case of dispensation with the requirements of service has been met.
    
19. In the circumstances, this application is liable to be dismissed.
    
20. In the result the Court issues the following Orders:
    
    • (a) The Application to dispense with requirements for service of the Notice of Motion and the Affidavit in Support is refused.
      
    • (b) The Applicant is directed to afford the Defendants the requisite days of service and thereafter, without delay, to set down the application to set aside the Order of 15^th June, 2023.
      
    • (c) The above application (to set aside Order of 15^th June, 2023) shall be set down for hearing not later than the 18^th of July, 2023.
      
    • (d) There is no Order as to costs.

________________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiff
Japson Lawyers: Lawyers for the First Defendant
Office of the Solicitor General: Lawyers for the Third, Fourth & Fifth Defendants