Nukumal Plantation Limited v Tukake Limited, Pepi S Kimas as Secretary for Lands and Physical Planning, Sir Michael Somare as The Minister for Lands and Physical Planning and The Independent State Of Papua New Guinea (2005) N2781

• Jurisdiction: Papua New Guinea
• Judge: Gabi AJ
• Judgment Date: 04 February 2005
• Court: National Court
• Citation: (2005) N2781
• Year: 2005
• Judgement Number: N2781

Full Title: Nukumal Plantation Limited v Tukake Limited, Pepi S Kimas as Secretary for Lands and Physical Planning, Sir Michael Somare as The Minister for Lands and Physical Planning and The Independent State Of Papua New Guinea (2005) N2781

National Court: Gabi AJ

Judgment Delivered: 4 February 2005

N2781

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 394 OF 2004

BETWEEN:

NUKUMAL PLANTATION LIMITED

Plaintiff

AND:

TUKAKE LIMITED

First Defendant

AND:

PEPI S KIMAS AS SECRETARY FOR LANDS

AND PHYSICAL PLANNING

Second Defendant

AND:

SIR MICHAEL SOMARE AS THE MINISTER FOR LANDS

AND PHYSICAL PLANNING

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

WAIGANI: GABI, AJ

2004: 15 December

2005: 4 February

PRACTICE & PROCEDURE – Self-executing or conditional order – No automatic operation – Further judicial function required to determine whether conditions satisfied before final order – An order made pursuant to a self-executing order in the absence of the parties is irregular and may be set aside.

Cases Cited:

FAI General Insurance Co Ltd v Southern Cross Exploration [1988] 16 CLR 268

Commodity Development Pty Ltd v Peter Karai [1994] PNGLR 463

Juan Jeffery v Siapu Yapo (1999) N1843

Hon Andrew Baing & The Independent State of Papua New Guinea v PNG National Stevedore Pty Limited & Bank of South Pacific Limited (2000) SC 627

Henry ToRobert v Mary ToRobert (2004) N2744

Counsel:

M Titus, for the Plaintiff

N Kila, for the First Defendant

D Lambu, for the Second, Third & Fourth Defendants

DECISION

4 February 2005

GABI, AJ: This is an application to set aside an order for dismissal of proceedings made pursuant to a conditional or self-executing order.

In October 2004, the first defendant applied to the Court to dismiss the proceedings or alternatively for the matter to be set down for trial. On 9 November 2004, a conditional or self-executing order was made (hereinafter “Order of 9 November”). The terms of the order were:

“1. The matter is adjourned to 13 December 2004 at 1.30 pm for hearing.

2. The Plaintiff is directed to proceed with the trial on that day.

3. If the Plaintiff fails to appear on the hearing of this matter then the matter will stand dismissed.

4. Costs of the application be paid by the Plaintiff.

5. The time of entry of these orders be abridged to the time of settlement by the Registrar, which shall take place forthwith.”

On 13 December 2004, at 1.35 pm when the Court sat to hear the case, there was no appearance by both parties. Consequently, the Court dismissed the proceedings and awarded costs against the plaintiff (hereinafter “Order of 13 December”).

On the afternoon of 13 December 2004, at about 3 pm, the plaintiff filed this Motion seeking the following orders:

“1. The Orders of the National Court made today be set aside.

2. The proceedings are reinstated and placed on the next call-over for a new hearing date to be given to it.

3. All the defendants, by themselves, their agents or servants are reinstated (sic) from exercising any rights pertaining to the grant of lease over Portion 46, Milinch, Kokopo, Fourmil, Rabaul until this application seeking to set aside the orders of the National Court made today are fully and finally determined”.

The plaintiff filed two (2) affidavits in support of the application. They were the affidavit of Michael Titus sworn and filed on 13 December 2004 and the affidavit of Tanilo Wambor sworn and filed on 13 December 2004. Mr Titus is the Counsel for the plaintiff and Mr Wambor is the Chairman of the Board of Directors for the plaintiff. In his affidavit, Mr Wambor verifies the matters set out in the affidavit of Michael Titus. I set out the relevant parts of the affidavit of Michael Titus.

“1. I am a Lawyer employed by Mirupasi Lawyers who are Lawyers for the plaintiff and I have the carriage of this matter on behalf of the plaintiff. I am thus aware of the matters set out in this my Affidavit.

2. I arrived at the Court House at 1.25 pm and proceeded to the lobby to consult the Court diary. Before I reached the Court diary, Mr Kila, Counsel for and on behalf of the first defendant summoned me to the lobby at Court Room 2 and 3 and advised me that the matter had come on in the morning and he was making enquiries to ascertain what had happened to the matter.

3. I then indicated to Mr Kila to take the appropriate steps and to advise me accordingly. I observed him instruct Court Officer Vali to make enquiries. Court Officer Vali returned after 5 minutes and advised us that the matter was in Court Room No. 6. The time was now about 1.35 pm, and we then rushed to Court Room No. 6, that is myself, Tanilo Wabor, John Kauli and Gabriel Essorm. These witnesses traveled from Rabaul on 8th December 2004, and over the 4 days have prepared extensively for trial”.

The transcript of the proceeding on 13 December 2004 shows that there was no appearance by the parties. In dismissing the proceedings, the Court said:

“There is no appearance by parties this afternoon pursuant to the orders made by His Honour on 9 November. This is an originating summons seeking to review the decision of the then Minister for Lands and the Secretary for Lands. It is a judicial review matter and the provisions of order 16 of the National Court Rules apply. As I have said, there are (sic) no appearances (sic) by the plaintiff and in the absence of any explanation or any applications such as an application for adjournment and so forth, I must therefore enforce the orders made by His Honour on 9 November as there has been no appearance by the plaintiff to prosecute the matter.

I order that the matter be dismissed. Costs must certainly therefore follow the even.”

There was no hearing before the Order of 13 December was made. The order was made in the absence of the parties.

Counsel for the plaintiff, Mr Titus, submitted that the Court has power under O.12 r.8(3) to set aside the Order of 13 December and reinstate the proceedings. He referred me to the cases of Commodity Development Pty Ltd v Peter Karai [1994] PNGLR 463 and Juan Jeffery v Siapu Yapo (1999) N1843. These cases set out the principles for setting aside exparte orders. I find that these cases are of limited relevance.

Counsel for the first defendant, Mr Kila, submitted that O.12 r.8(4) provides exceptions and therefore an order for dismissal cannot be set aside. He further submitted that it is open to the plaintiff to institute fresh proceedings under O.12 r.7. However, any fresh proceedings commenced must be stayed until costs are paid.

Counsel for the second, third and fourth defendants, Mr Lambu, endorsed Mr Kila’s submissions. He submitted that as the proceedings have been dismissed, there is no action on foot or before the Court hence the application cannot be entertained. He further submitted that as the Order of 9 November is self-executing, it became effective on that date.

The issues before me are:

1. Whether a conditional or self-executing order operates automatically?

2. Were the requirements of the self-executing order met before the Order of 13 December was made?

3. Whether an order made pursuant to a self-executing order may be set aside?

These issues are related and they are dealt with together.

The Law

The principles governing conditional or self-executing orders have been settled in our jurisdiction. A conditional or self-executing order does not operate automatically at the specified time. There must be a further judicial function to determine whether the conditions have been satisfied at the specified time before a final order is granted: Hon. Andrew Baing & The Independent State of Papua New Guinea v PNG National Stevedores Pty Limited & Bank of South Pacific (2000) SC 627 and Henry ToRobert v Mary ToRobert (2004) N2744.

In Hon Andrew Baing & The Independent State of Papua New Guinea v PNG National Stevedores Pty Limited & Bank of South Pacific Limited (supra), the first respondent instituted proceedings against the appellants and the Harbours Board for damages. After the close of pleadings and during pre-trial proceedings, the respondent obtained orders for discovery of documents. The...