Peter Malt v Dean Queen and Christian Union Mission Inc (2009) N3577

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 20 January 2009
• Court: National Court
• Citation: (2009) N3577
• Docket Number: WS NO 603 OF 2005
• Year: 2009
• Judgement Number: N3577

Full Title: WS NO 603 OF 2005; Peter Malt v Dean Queen and Christian Union Mission Inc (2009) N3577

National Court: Makail, AJ

Judgment Delivered: 20 January 2009

N3577

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 603 OF 2005

BETWEEN

PETER MALT

Plaintiff

AND

DEAN QUEEN

First Defendant

AND

CHRISTIAN UNION MISSION INC

Second Defendant

Mount Hagen: Makail, AJ

2008: 19 September &

2009: 20 January

PRACTICE & PROCEDURE - Application to set aside ex parte order - Dismissal of proceeding for want of prosecution - Different forms of ex parte orders discussed - Whether National Court has jurisdiction - Inherent jurisdiction inapplicable - Lack of jurisdiction - Application misconceived and abuse of process - Application dismissed - Constitution - Section 155(4) - National Court Rules - Order 12, rule 8.

WORDS & PHRASES - “Dismissal” and “strike out” of proceeding for want of prosecution - Meaning and effect of - “Interim” and “final” orders - Meaning and effect of.

Cases cited:

Application by Wili Kili Goiya [1991] PNGLR 170; (1991) SC408

TST Holdings Pty Ltd & another -v- Tom Pelis & Another (1997) SC534

PNG National Stevedores Pty Ltd & Anor -v- Honourable Andrew Baing & The State (1998) N1705

Christopher M Smith -v- Ruma Constructions Ltd (2002) SC695

Bruce Tsang -v- Credit Corporation [1993] PNGLR 112

General Accident Fire & Life Assurance Corporation Ltd -v- Ilimo Farm Products Pty Ltd [1990] PNGLR 331

Makop On -v- Billy Parako (2004) N2593

Green & Co Pty Limited -v- Green [1976] PNGLR 73

Barker -v- Government of Papua New Guinea [1976] PNGLR 340

George Page Pty Limited -v- Malipu Bus Balakau [1982] PNGLR 140

Gobe Hongu Ltd -v- NEC & The State (1999) N1920

Mark Ekepa & Ors -v- William Gaupe & Ors (2004) N2694

East Arowe Timbers Resources Limited -v- Cakara Alam (PNG) Limited & PNG Forest Authority (2008) N3270

Counsel:

Mr D Gonol, for the Plaintiff

Mr K Peri, for the Defendants

RULING

20 January 2009

1. MAKAIL AJ: The application before the Court is a Notice of Motion filed by the Plaintiff on 19 November 2007 seeking the following orders:

“1. Pursuant to Order 12, rule 8 of the National Court Rules, the ex parte order of this Honourable court made on the 13 July 2007 be set aside.

2. The proceedings be re-instated.

3. The matter be placed on the call over list for allocation of a trial date.

4. Any other or further orders this Honourable Court deems fit.

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

2. It came before the Motions Court on 19 September 2008. An issue arose during the hearing as to whether the National Court has jurisdiction to set aside an ex parte order which dismissed the entire proceeding for want of prosecution. After brief discussion with both counsel, I directed both counsel to file and serve their respective written submissions on this issue by or before 26 September 2008. I reserved my ruling to a date to be fixed. Unfortunately, apart from being away on court circuit duties during the subsequent months, both counsels did not put in their respective written submissions until I enquired in late December 2008. Counsel for the Plaintiff did eventually provide one on 8th January 2009. The other did not but I will not wait any further. This is my ruling.

BRIEF FACTS

3. The circumstances giving rise to the application is as follows; the Plaintiff claims to be the registered proprietor of a piece of land described as “Wumundi”, Portion 2692C, Milinch of Hagen, Fourmill of Ramu in the Western Highlands Province (the “land”). It is located at the edge of Mt Hagen town, at Newtown.

4. Previously, the land was a customary land and belonged to the Plaintiff’s Mogei Andakel Kang tribe but the Plaintiff decided to put up a Motel complex and had it surveyed. He applied for a title under the Land Tenure Conversion Act and was granted one on 28 February 2001. On or around 23 December 2002, the Defendants moved onto the land and occupied it. The Plaintiff claims that he did not give approval to the Defendants to occupy the land. He also claims that someone forged his signature on a contract of sale which transferred the land to the Defendants. As a result, he issued proceedings at the Mt Hagen District Court to eject the Defendants from the land.

5. On 9th September 2004, the Mt Hagen District Court ordered the Defendants to vacate the land within 2 weeks but on 24 September 2004, the Defendants applied and obtained an order setting aside the eviction order. Subsequently, the District Court transferred the proceeding to the National Court for further determination in respect of the validity of the transfer of title from the Plaintiff to the Defendants. The transfer of the District Court proceeding to the National Court is the present proceeding.

6. On 8th September 2006, the Defendants filed a Notice of Motion seeking an order to dismiss the entire proceeding for want of prosecution. On 13th July 2007, the Plaintiff did not attend the hearing and the National Court upheld the application of the Defendants and dismissed the entire proceeding for want of prosecution. This is the ex parte order the Plaintiff seeks to set aside.

ISSUES

7. The main issue is whether or not the National Court has jurisdiction to set aside an ex parte order dismissing the entire proceeding for want of prosecution. If the National Court does have jurisdiction, what are the considerations or principals upon which the Court may take into account to set aside an ex parte order dismissing the entire proceeding for want of prosecution?

8. These issues have arisen because if the Plaintiff was to have appealed the decision of the National Court to the Supreme Court, he would have been outside the 40 days time limitation allowed under section 17 of the Supreme Court Act. In other words, the Plaintiff is time barred to appeal the decision of the National Court to dismiss the entire proceeding for want of prosecution in his absence.

9. The Plaintiff’s Notice of Motion cites Order 12, rule 8 of the National Court Rules as the basis of the application. Order 12, rule 8 states:

“8. Setting aside or varying judgment or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2) The Court may, on terms, set aside or vary a judgment-

(a) where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or

(b) where the judgment 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

(c) when the judgment has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(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; or

(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgment or order”. (Underlining is mine).

REASONS FOR RULING

10. I have read the written submissions of the Plaintiff filed by his counsel. I will refer to relevant aspects of the submissions as I give my reasons for the ruling.

11. I have also perused the ex parte order of 13th July 2007 (the “ex parte order”) and term 1 of the ex parte order states, “The proceeding is dismissed for want of prosecution”. I have crossed checked the terms of the ex parte order with the Court file endorsement of 13 July 2007 and they are consistent with the endorsement. So I accept that the National Court dismissed the entire proceeding for want of prosecution. It did not “strike” out the proceeding. I make this distinction at the outset because it will become evident later on that they have different consequences or effect when I explain them in more detail.

Jurisdiction of National Court

12. Counsel for the Plaintiff submits that the Plaintiff will suffer irreparable damage if the Court does not set aside the ex parte order. He submits that the Plaintiff’s interest in the land as its registered title holder has being prejudiced in that he has been driven away from the judgment seat of the Court by the dismissal of the entire proceeding for want of proceeding, hence did not have the opportunity to prove his right of ownership before the Court. Counsel cites three instances where court proceeding are brought to an end or concluded and says that in...