Commodity Development Pty Ltd v Peter Karai

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 11 February 1994
• Citation: [1994] PNGLR 463
• Court: National Court
• Year: 1994
• Judgement Number: N1260

National Court: Doherty J

Judgment Delivered: 11 February 1994

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

COMMODITY DEVELOPMENT PTY LTD

V

PETER KARAI

Rabaul

Doherty J

11 February 1994

PRACTICE AND PROCEDURE — Ex parte judgments — District Courts Act s 25 — Whether National Court precedents properly followed.

Facts

The Rabaul District Court entered ex parte judgment in favour of the respondent, the complainant in the court of first instance. The appellant filed a motion under s 25 District Courts Act seeking to have the ex parte order set aside. The District Court refused the motion on the ground that no defence was shown on the merit, in accordance with the precedents set by the National Court. On appeal, the appellant argued that the defence on the merit is a procedure under s 159 of the District Courts Act and it does not apply to s 25.

Held

Although s 25 District Courts Act and O 12 r 35 National Court Rules are not the same, the wording is sufficiently similar and similar principles apply. Hence, the District Court properly applied the National Court precedents that three conditions had to be met to set aside a regularly entered default judgment viz:

1. There must be an affidavit stating facts showing a defence on the merits.

2. There must be a reasonable explanation why judgment was allowed to go by default; and

3. The application must be made promptly and within a reasonable time.

Cases Cited

Barker v PNG [1976] PNGLR 340.

Fleming v Dau [1983] PNGLR 339.

Green & Co Pty Ltd v Green [1976] PNGLR 73.

Counsel

P Ousi, for the appellant.

The respondent in person.

11 February 1994

DOHERTY J: The appellant corporation appeals against a decision of the Rabaul District Court, which refused to set aside an ex parte judgment entered in favour of the respondent; that is, the complainant in the lower court.

It appears from the facts that the respondent filed what was called a default summons in the lower court and the matter came for hearing after service. In actual fact, the case was treated not as a default summons, but as an ordinary summons. It was listed for trial and there was an ex parte hearing of the complaint. The complainant gave evidence. He appears not to have called any witnesses.

The appellant, the defendant in the lower court, had been represented initially by counsel. According to the record, he had asked for adjournments in order to try to find the files relating to the case.

There had been a previous adjournment. Then the matter was set for hearing on 22 October 1993 at 8:30 am. Apparently both parties appeared on that day and there is an affidavit from counsel for the company showing that he did appear at 8:30, but the matter was not called, and it was adjourned, apparently awaiting another magistrate to come and deal with it.

It was then heard in the absence of the lawyer. Exactly what time it was heard that day I do not know. The judgment was entered on 25 October, that is on the Monday. The hearing apparently was on Friday 22 October.

In a supporting affidavit, the lawyer for the company explains that he had waited and then he went in and attended the National Court, being unaware that, in fact, a magistrate had arrived and started to hear the case. He applied under s...