N10817

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 937 OF 2017

BETWEEN:
FOXIE KEAKE as Chairman of the
Behori Land Group Incorporated REG ILG 552
First Plaintiff

AND
VICKY KOVER & MAX TOM as
representatives of occupants of Portion 2210
Second Plaintiff

AND
FELIX KANGE
First Defendant

AND
PUNDIA KANGE
Second Defendant

AND
HENRY WASA as the ACTING REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

Waigani:  Bre, AJ
2024:  08th & 15th May

CIVIL PRACTICE AND PROCEDURE – Directions order issued in the absence of the plaintiff – Notice of Directions hearing served on former lawyers – issue of procedural fairness – principles guiding setting aside of Court orders, interest of justice considered.

Cases Cited

Cragnolini v Leia [2023] SC2464
Kaeaka v Kange [2023] N10567
Maser v Salin [2021] SC2119

Legislation

National Court Rules O 2 r 35 & r 40, O12 r 8(2)(b) &(3)(a) and O12 r 9

Counsel
 Mr. Peter Daime, for the Plaintiffs
Mr. Brendan Lai, for the First and Second Defendants

RULING

15th May 2024

1.	BRE AJ:	This is my ruling on two applications, an application by the plaintiff to set aside the Court Orders of 05 December 2023 and a counter motion by the First and Second Defendants requiring dismissal of the plaintiffs' application. 

2.	The plaintiffs take issue with the order issued as they contend that it was issued in their absence. The following orders were issued by his Honour Justice Makail on 05 December 2023:-

"1. 	Trial shall be by affidavits with no cross examination.
 2.	 The matter is fixed for half day trial Friday 5th July 2024 commencing at 9:30am.
3.	Plaintiffs shall file and serve Notice of Trial forthwith
4. 	Time shall be abridge."

3.	The plaintiff relies on Order 12 rule 8(2)(b) and Order 12 rule 8(3)(a) of the National Court Rules ('NCR'), Cragnolini v Leia [2023] SC2464, Kaeaka v Kange [2023] N10567 and four Affidavits to submit that the Court erred in proceeding in the plaintiff's absence to  allocate a trial date and issue directions as to the manner of trial, when it relied on the defendant's evidence that notice of the directions hearing was served on the plaintiff's lawyer, when it was not.

4.	The plaintiff further submits that this Court take judicial notice of its finding of fact in paragraph 22 subparagraph 14 of its decision in Kaeaka v Kange on the finding of fact  made that "Gibson Bon Lawyers now represent the plaintiff".   

5.	The plaintiff relies on the Affidavits of:-

i) 	Foxie Kaeaka filed 29 April 2024 (Doc 82)
ii) 	Vicky Kover filed 26 April 2024 (Doc 81)
iii) 	Max Tom filed 26 April 2024 (Doc 80)
iv) 	Peter Daime filed 28 March 2024 (Doc 79)

6.	The first and second defendants filed their counter motion relying on Order 02 rule 35 and 40 NCR, Maser v Salin [2021] SC2119 and three affidavits seeking dismissal of the plaintiff's application pursuant to Order 12 rule 1 NCR on the basis that it is mischievous as they were never served the notice of change of lawyers that was filed on 28 September 2023 by Gibson Bon Lawyers and that there is no Affidavit of Service to that effect on the Court File.

7.	The defendants rely on the Affidavits of:-

i) 	Felix Kange filed 03 May 2024 (Doc 85)
ii) 	Brendan Lai filed 03 May 2024 (Doc 86)
iii) 	Rolence Haba filed 03 May 2024 (Doc 87)  	

8.	To me the crucial issue for determination is one of procedural fairness which requires me to consider in my deliberation factors submitted by both counsel on whether service of a notice of change of lawyers is required, the consideration to be applied to the Court's finding in paragraph 22 of Kaeaka v Kange and the requirements to set aside the Court Order.  
The answers to these issues determine both applications.

Whether procedural fairness has been afforded to the plaintiff?

9.	Order 02 rules 35 and 40 NCR requires service on the other party of a Notice of Change of Lawyers for the change to be effective.  Order 02 rules 35 and 40 reads:-

"35. Change of solicitor.

(1)	Where a solicitor acts for a party in any proceedings, the party may change his solicitor.

(2)	Where a party changes his solicitor, he shall file notice of the change and serve the notice on the other parties and, where practicable, his former solicitor."

40. Effects of change. 
A change of which notice is required or permitted to be filed under any of Rules 35, 36, 37, 38 and 39 shall not have effect as between a party or solicitor to which the change relates on the one hand and the Court or any other party on the other hand until notice of the change is filed and, as regards any other party, served on that other party. "

(Emphasis added)

10.	The Supreme Court in Maser v Salin referred to Order 02 rules 35 and 40 NCR and remarked at [18] that:-

"... the fact that the notice of change of lawyers had not been served 	rendered it of no effect."

11.	According to the Court file, on 28 September 2023 a Notice of Change of Lawyers (Doc 60) was filed, reflecting that the plaintiff had changed lawyers to Gibson Bon Lawyers.

12.	In my ruling in Kaeaka v Kange I made a finding of fact based on the Court file. I also observed counsel for the plaintiff, at that time, Mr. Otto of Themis Lawyers at [7] that he was recently engaged and sought an adjournment, which I refused.

13.	The findings of fact are to be taken into context of the issues for determination before the Court. The finding of fact at [22] sub-paragrapgh 14 was based on the filed notice of change of lawyers. Mr Daime contends that I should take judicial notice of this finding pursuant to Order 12 rule 9 NCR.

"9. 	Judicial notice of order. 

(1) 	In any proceedings the Court may take judicial notice of any order of the Court in the proceedings.

(2) 	In any proceedings, the Court may be informed of an order of the Court in the proceedings by (amongst other things) reference to a note made by the Judge making the order or by his associate or to a note made by the officer making the order. "

14.	 Mr. Lai challenges the effectiveness of the Notice of Change of Lawyers filed on 28 September 2023 that it is not effective proof that he knows about the change of lawyers. He submits that Order 02 rules 35 and 40 NCR, clearly dictate that service of change of lawyers is only effective upon service of the filed notice on the other party.

15.	Mr. Daime for the plaintiffs submits that the plaintiffs have a right to be heard and are prejudiced by the Court Order of 05 December 2023 which was issued in the plaintiff's absence and that the plaintiffs require the trial to include the cross examination of witnesses. 

16.	Counsels arguments on the notice of change of lawyers are factual matters that require confirmation with the filed evidence relied on. According to the affidavit of Rolence Haba, Themis Lawyers filed their Notice of Ceasing to Act for the plaintiffs on 19 December 2023. This is after the date of the Court Order of 05 December 2023.

17.	What is also clear from the facts, is my ruling in this matter on 10 November 2023 in which I made a finding of fact at [22] about the change of lawyers for the plaintiff with Gibson Bon Lawyers being the plaintiff's lawyers.  I infer that the First and Second Defendant's Counsel would have read that decision and ought to have taken steps to confirm if Gibson Bon Lawyers was representing the plaintiff. 

18.	The jurisdictional basis of the Court to set aside the Court Order of 05 December 2023 is premised on Order 12 rule 8(2)(b) and Order 12 rule 8(3)(a) NCR. These Court rules grant jurisdiction to the Court to set aside or vary judgments entered in the absence of a party whether that party is in default or not. To my mind the intent of these rules is to uphold procedural fairness where that is demonstrated to be lacking. Order 12 rule 8(2)(b) and Order 12 rule 8(3)(a) NCR reads:-

8. 	Setting aside or varying judgement or order. 

(2) 	The Court may, on terms, set aside or vary a judgement—
          
(b)   where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(3) 	The Court may, on terms, set aside or vary an order—

 (a)   where the order has been made in the absence of a party, whether 	  or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order;"

19.	I will also refer to the listing rules of the Court in Order 10rule 9A (14), (6), (12)(2) and (13) which I consider relevant given the context of the Orders to be set aside arose from a Directions Hearing.  

20.	The conclusion that I draw from reading these listing rules collectively is that the plaintiffs have the responsibility of setting the matter down for trial (6) and taking necessary steps to prepare and progress their claim to trial. That once a trial date is fixed, the matter is to proceed accordingly to trial on that date consistent with the directions of the Court ((12)(2)) unless, an adjournment of the trial date is sought by application with leave of the Court (13).  Order 10 rule 9A (14) NCR is of relevance, as it requires that a party should appear with its Lawyer at all the relevant listing processes.

21.	The plaintiff has not indicated in the affidavits they rely on of any steps they have taken to progress the matter to trial. In my last ruling in this matter, Kaeaka v Kange, I remarked at [32] that the plaintiff should actively manage its case to trial as that last ruling arose from a decision by the defendants to file and serve a notice to set down for trial in a similar situation as this current application.

22.	I will be guided by the principles guiding the exercise of my discretionary power pursuant to Order 12 rule 8(2)(b) and Order 12 rule 8(3)(a) NCR as established in Cragnolini v Leia and applied in Kaeaka v Kange at [19] which are:-

"(i),	why the judgment was allowed to be entered in absence of the applicant,

(ii), 	If there is a delay in making the application to set aside, a reasonable explanation as to the delay,

(iii), 	by affidavit stating material facts disclosing a defence on merit or there is an arguable case, and

(iv) 	where does the interest of justice lie?"

23.	In considering these guiding principles, I agree with Mr Daime that the plaintiff has met the first three criteria, however, the deciding factor for me of this application, is the interest of justice criteria. The interest of justice does require procedural fairness to be accorded to a party before issuing an order. I consider that his Honour Makail J, was informed by Mr Lai at that time that the plaintiff's Lawyer then was served. However, I take judicial notice of my ruling and agree with Mr Daime that Mr Lai ought to have known about the finding of fact about the change of Lawyers then and in my view would have taken steps to confirm matters before informing Themis Lawyers about the directions hearing date. 

24.	The interest of justice also requires finality of proceedings and that a party come to Court with clean hands when seeking an equitable remedy such as the current application contending for the Court to exercise its discretionary powers.

25.	I am not satisfied with the evidence of the plaintiff that it has taken sufficient steps to progress the matter to trial nor did they provide any reasons as to whether or not they would be prejudiced by the trial date fixed for 05 July 2024.

26.	I do note from the plaintiffs' affidavits that their main concern is that they require the trial to proceed by cross examination of the defence witnesses.
I also take into account the first defendant's evidence of his concern about the seven (7) year length of the case and the prejudicial effect on him in defending the case and certainty about the use of the land, the subject of the substantive dispute. 

27.	Given, all these considerations, I give paramount consideration to the interest of justice which require that I issue a ruling to vary the Court Orders of 05 December 2023 to remove the requirement for the trial to proceed by affidavits with no cross examination of witnesses and replace that direction with the trial to proceed by affidavits with cross examination of witnesses after service of the required notices under the Evidence Act. The trial date of 05 July 2024 and terms three and four of the Court Order will be maintained with an additional term granting liberty to the parties apply for variation as they may require.   

28.	I consider this ruling satisfies the requirements of procedural fairness and the need for finality of proceedings. To set aside the Court Order of 05 December 2023 would in my view be prejudicial to both parties and not in the interests of justice to ensuring finality of proceedings.  

ORDER

29.     The formal orders of the Court are:-

1)	The Order of 05 December 2023 is varied in the following terms:-

(i)	The Trial shall proceed by affidavit with or without cross-examination;

(ii)	Each party is at liberty to call any witnesses or require any witnesses for cross examination as may be required under Section 35 or 36 of the Evidence Act Chapter 48.

(iii)	The date fixed for trial on liability is maintained at 05 July 2024 commencing at 9:30am.

(iv)	The plaintiffs shall file and serve a Notice of Trial forthwith.

(v)	The parties are at liberty to apply at any time but before seven (7) days of the trial date, for variation of these orders.

2)	The costs of the applications are in the cause.

3)	Time for entry of the order is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.

Ruling accordingly.
__________________________________________________________________
Peter Daime Kaii Lawyers: Lawyers for the Plaintiffs
B.S. Lai Lawyers: Lawyers for the Defendants