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Petroleum Resources Moran Ltd v Moran Oil Ltd [2024] PGSC 122; SC2652 (31 October 2024)

SC2652

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 33 OF 2023

PETROLEUM RESOURCES MORAN LIMITED
Applicant

-V-

MORAN OIL LIMITED
First Respondent

EDA OIL LIMITED
Second Respondent

KUMUL PETROLEUM (DEVELOPMENT) LIMITED
Third Respondent

KUMUL PETROLEUM HOLDINGS LIMITED
Fourth Respondent

Waigani: Kariko J, Dowa J, Carey J.
2024: 31^st October

SUPREME COURT - PRACTICE & PROCEDURE – application to set aside ex parte dismissal order – dismissal of application for leave to review – dismissal for want of prosecution – dismissal by single Judge – appropriate court to hear application to set aside

Facts

Following the ex parte summary dismissal by a single Judge of the Supreme Court of an application for leave to review, the applicant filed application to have the ex parte order set aside.

Held:

The same Supreme Court, single Judge or full court, that summarily dismisses proceedings ex parte for want of prosecution shall hear any application to set aside the ex parte order, unless the Judge or a member of the full court is unavailable.
.
Cases Cited:
Petroleum Resources Moran Ltd v Moran Oil Ltd (2023) SC2417
Tulapi v Niggins (2011) SC1111

Counsel:

G Geroro & J Liskia, for the Applicant
A Mana, for the First Respondent
J Holingu, for the Second, Third & Fourth Respondents

31^st October 2024

1. BY THE COURT: An application to set aside an ex parte summary dismissal order came before us which we directed be heard instead by Hartshorn J who made the order sitting as a single Judge of the Supreme Court.
   
2. We indicated publishing fuller reasons later, and we provide those now.
   

BACKGROUND

3. After failing to file an appeal within time against a National Court decision that dismissed its claim, the applicant filed for leave to review under s 155(2)(b) of the Constitution.
   
4. The leave application was listed for hearing on 21 April 2023 before Hartshorn J sitting as a single Judge of the Supreme Court. Counsel for the applicant was not present when the case was called, and his Honour summarily dismissed the application for want of prosecution.
   
5. Aggrieved, the applicant sought to have the ex parte order set aside. Because the Supreme Court Rules (SCR) do not specifically provide for setting aside of ex parte orders, the applicant sought ad hoc directions pursuant to s 185 of the Constitution to make the application and asked that it be allowed to adopt the relevant procedures provided under the National Court Rules (NCR) for setting aside ex parte orders.
   
6. On 23 June 2023, Dingake J, also sitting as a single Judge of the Supreme Court, heard the application and granted leave to adopt the procedures in the National Court under O12 r8(3)(a) the NCR with necessary modifications, to apply for the ex parte order of 21 April 2023 to be set aside. See Petroleum Resources Moran Ltd v Moran Oil Ltd (2023) SC2417.
   
7. Pursuant to the NCR, a notice of motion was filed with supporting affidavit consistent with the requirements under O4 r 49 of the NCR for making applications. As affirmed in Tulapi v Niggins (2011) SC1111, the application would be treated analogous to an application made under O12 r8(3) of the NCR.
   
8. After the case was called, the Court questioned whether the application was properly before the full court, or should it be heard by the Judge who made the ex parte order. We heard from counsel who ultimately agreed to the course proposed by the Court.
   

CONSIDERATION

9. The directions issued by Dingake J is a similar course adopted by Injia CJ in Tulapi v Niggins (2011) SC1111. The directions were necessary and proper given the lack of provisions in the SCR dealing with applications to set aside ex parte orders.
   
10. Tulapi v Niggins concerned an application to set aside an ex parte order that summarily dismissed an appeal for want of prosecution. The application was heard by the same full court that had dismissed the appeal.
    
11. That case followed the practice that the same court that summarily dismisses proceedings ex parte shall hear any application to set aside the dismissal order.
    
12. In our view, that is the correct approach - that the same court, single Judge or full court, that summarily dismisses proceedings ex parte for want of prosecution shall hear any application to set aside the ex parte order, unless the Judge or a member of the full court is unavailable.
    
13. The present application to set aside should therefore be heard by Hartshorn J.
    
14. There are two other factors that lend weight to this being the appropriate course in this instance.
    
15. First, the practice and procedure regarding motions in the National Court are governed by O4 r49 of the NCR. It is noteworthy that O4 r49(19)(4) states that applications to set aside ex parte orders shall be heard by the same judge who made the order unless that judge is unavailable. No doubt the rationale for this provision is that the same judge would be more familiar with the details of the case including the relevant considerations leading to the decision to dismiss.
    
16. Second, the hearing of an application for leave to review, which was the subject of the dismissal order, must be heard by a single Judge of the Supreme Court pursuant to O5 r3 of the SCR.
    

ADDITIONAL REMARKS

17. To clarify the practice and procedure for applications to set aside ex parte orders in the Supreme Court, we think there should be amendment to the SCR to include specific provisions on this.
    

ORDER

(1) The Court directs that this application to set aside the ex parte order of 21 April 2024 by his Honour Hartshorn J is listed before his Honour for hearing.

(2) Costs will follow the event.

(3) The proceedings are adjourned to the Registry to be listed as directed.

__________________________________________________________
Geroro Lawyers: Lawyers for the Applicant
Allan Mana Lawyers: Lawyers for the First Respondent
Holingu Lawyers: Lawyers for the Second, Third & Fourth Respondents