Henry ToRobert v Mary ToRobert and Janet Roberts (2004) N2744

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 December 2004
• Court: National Court
• Citation: (2004) N2744
• Year: 2004
• Judgement Number: N2744

Full Title: Henry ToRobert v Mary ToRobert and Janet Roberts (2004) N2744

National Court: Kandakasi J

Judgment Delivered: 1 December 2004

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC. NO. 6 OF 2003

BETWEEN

HENRY ToROBERT

Petitioner/ Cross-Respondent

AND:

MARY ToROBERT

Respondent/ Cross-Petitioner

AND:

JANET ROBERTS

Cross – Co-Respondent

WAIGANI: KANDAKASI, J.

2004: 19th October

1st December

JUDGMENTS & ORDERS – Self executing or conditional orders – Nature and effect of – No automatic effect – Perfecting of order required - Proof of condition stipulated being satisfied required before perfecting orders – Formal application to and Court order required to perfect conditional order – Court to be guided by the need to do justice on the merits of the substantive case.

MATRIMONIAL CAUSES – Special cause – Utmost good faith required – Petitioner required to disclose all facts – No ex-parte hearing where respondent indicates preparedness to defend petition – Time bar under Matrimonial Causes Act no bar to setting aside irregularity ordered judgment – SS. 60 & 63 Matrimonial Causes Act (Chp. 285).

Papua New Guinean Cases Cited:

Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (23/02/00) SC 627.

Dobson v. Dobson [1973] PNGLR 299.

Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694.

Overseas Cases Cited:

FAI General Insurance Co Ltd v. Southern Cross Exploration [1988] 165 CLR 268.

Wilson v. Wilson (1967) F.L.R. 203.

Counsel:

S. Kassman for the Respondent/Cross-Petitioner/Applicant

J. Shepherd for the Petitioner/Cross-Respondent/Respondent

1st December 2004

KANDAKASI J.: Mary ToRobert, the respondent and cross-petitioner (the applicant) in these proceedings is applying to set aside an order purportedly made by, Justice Gavara-Nanu on or about 13th June 2003. The order in question followed, at least from Henry ToRobert, the petitioner and cross-respondent’s (the respondent) arguments, a failure by the applicant in complying with self-executing orders earlier made by the Court on 11th June 2003. Those orders imposed a duty on the applicant to file and self her answer and cross-petition on the respondent within a specified period and ordered also that, failing that, the relief sought in the petition by the petitioner, the respondent in this application would be granted.

The basis for the applicant’s application is that, the purported orders of 13th June 2003 were not made by the Court and further or in the alternative that, if the Court made those orders, she complied with the conditions stipulated under the earlier orders of 11th June 2003. She therefore argues that the condition stipulated in the self-execution orders of 11th June 2003 did not occur or exist to warrant the purported making of the orders of 13th June 2003.

The issues for this Court to determine therefore are these:

1. Did the Court make the orders of 13th June 2003?

2. Did the respondent meet the requirements for perfecting of conditional or self-executing orders? and

3. If the answer to the second question is “yes”, did that automatically entitle the respondent to the relief he was seeking in the petition?

The Relevant Background and Facts

The relevant background and facts giving rise to these issues are these. The respondent married the applicant on 27 June 1981. Out of that marriage, they have one child, Henry Junior, who is studying in a University in Australia. Since, 15th March 2000, they have been living separate lives. On 25th March 2003, the respondent filed this petition seeking a decree of judicial separation on the ground of constructive desertion and an order for the distribution of matrimonial property.

Initially, the petitioner proceeded under the relevant rules as an uncontested matter and was listed for hearing on that basis on 11th June 2003. On that date, the matter came before, Gavara-Nanu J., for hearing. Both parties turned up with Mr. Peter Mills representing the respondent while Mr. Stephen Kassman appeared for the applicant. At that time, it became clear that the applicant was contesting the petition. Therefore, the Court ordered amongst others, with the consent of the parties three main orders. The first granted the applicant leave to file and serve an answer to the petition together with her cross-petition by or before 4:00 p.m. on 13th June 2003. Secondly, it ordered that if the applicant failed to comply with the first order, the relief sought by the respondent (petitioner) in his petition would be granted. Thirdly, it directed the filing and serving of affidavit evidence of the parties with the latest of that being the respondent’s response by or before 4:00 p.m. on 21st July 2003 and set 24th July 2003 at 9:30 am for trial of the matter.

The respondent relying on his, his co-cross-respondent and two affidavits by Mr. Jeffrey L. Shepherd claim that, the applicant failed to file and serve her answer to the petition and her cross-petition by or before the 13th June 2003, deadline. He therefore went through his lawyers for a perfection of the self-executing order of 11th June, namely for a grant of the relief he sought in his petition. He did that by way of a letter dated 19th June 2003 from Blake Dawson Waldron Lawyers, per Peter Mills, addressed to the Registrar of the National Court. In that letter, the respondent enclosed one affidavit each by himself and his co- cross-respondent both sworn 19th June 2003 and a draft minute of the orders aimed at giving effect to the self-executing orders of 11th June 2003. The letter also requested the Registrar to refer the affidavits and draft minute of orders to Gavara-Nanu J., for his approval.

The respondent goes on to argue that, His Honour Gavara-Nanu J., considered the affidavit material and approved the orders. This, he says, was confirmed in a telephone conversation between His Honour’s associate, Mr. Patrick Timo and Mr. Jeffrey L. Shepherd on 1st July 2003, when the latter enquired about the signing of the orders. The respondent also says that, at that time, His Honour’s associate informed that the draft orders would be signed and the sealed copies would be available at the registry for collection. This, the respondent claims was done after the associate consulted with His Honour on the same day.

On the other hand, the applicant relying on her own affidavit and several other affidavits in support, including one from Mr. Stephen Kassman, says that, His Honour Gavara-Nanu J., did not in fact make those orders either in open Court or in his chambers. Instead, she says the Registrar signed them. Further, she says, she did not default in terms of the orders of 11th June 2003. In so saying, she points to having filed and served her answer to the petition and her cross-petition against the respondent (petitioner) and his co-cross-respondent and notice of her proceedings on them by filing on 11th and serving sealed copies of these documents on Blake Dawson Waldron Lawyers on 13th June 2003. Mr. Mills confirms this in his affidavit of 19th June 2003. He however raises the point that they did not act for the co-cross-respondent and certainly did not hold instructions to accept service of those documents on her behalf.

An initial perusal of the Court file failed to provide any satisfactory answer to the question of whether the Court made the orders, the subject of this application. In relevant parts, the endorsement showed the signing of orders by consent on 11th June 2003. The endorsement following that was, one for 24th July in terms of:

“Jeff Shepherd (by telephone)

“ORDER: 1. Self executing orders were already made disposing off the matter.”

The minutes of the orders in question complicated the issue. It showed the orders having being made on 13th June 2003 and entered on 30th June 2003 and filed on 2nd July 2003. Further, affidavits filed in support of the request for an approval of the orders in question, were sworn and filed on 19th June 2003, well after the orders were purportedly made on 13th June 2003. This was rather confusing because usually, the date of filing would correspond with the date of entry or the date of entry would be after the date of filing of the draft minutes of the orders and certainly not before that.

Given that, with the agreement of the...