Thomas Rangip and Fountain Finance Limited v Peter Loko, City Manager, National Capital District Commission and National Capital District Commission (2009) N3714

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 11 August 2009
• Court: National Court
• Citation: (2009) N3714
• Docket Number: WS 51 OF 2006
• Year: 2009
• Judgement Number: N3714

Full Title: WS 51 OF 2006; Thomas Rangip and Fountain Finance Limited v Peter Loko, City Manager, National Capital District Commission and National Capital District Commission (2009) N3714

National Court: Hartshorn J

Judgment Delivered: 11 August 2009

N3714

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 51 OF 2006

BETWEEN:

THOMAS RANGIP

First Plaintiff

AND:

FOUNTAIN FINANCE LIMITED

Second Plaintiff

AND:

PETER LOKO, CITY MANAGER, NATIONAL

CAPITAL DISTRICT COMMISSION

First Defendant

AND:

NATIONAL CAPITAL DISTRICT COMMISSION

Second Defendant

Waigani: Hartshorn J.

2009: 8th July,

: 11th August

Application to Set Aside Ex Parte Order Dismissing Proceeding for Want of Prosecution – Order 12 Rule 8(3)(a) National Court Rules

Facts:

The plaintiffs apply for a dismissal order of this court to be set aside. That order was, amongst others, that the proceeding be dismissed for want of prosecution. At that hearing, the dismissal order was sought and granted ex parte. This application is now brought by the plaintiffs pursuant to Order 12 Rule 8(3)(a) National Court Rules and s. 155(4) Constitution.

Held:

1. The National Court has jurisdiction to set aside its own ex parte order that dismisses a proceeding for want of prosecution; Order 12 Rule 8 (3)(a) National Court Rules; (Malt v. Queen (2009) N3577 not followed.)

2. In an application to set aside an ex parte order dismissing a proceeding for want of prosecution the onus is on the applicant to satisfy the court:

a) why the order was allowed to be entered in the absence of the applicant,

b) if there is a delay in making the application to set aside, a reasonable explanation as to the delay, and

c) that there is a reasonable explanation for the proceeding not being prosecuted with due diligence.

3. The plaintiffs have not shown that the defendants’ dismissal application was an abuse of process as alleged.

4. The ex parte order was made in the absence of the plaintiffs’ former lawyers as there was sufficient evidence that the dismissal motion and supporting affidavits were properly served upon the lawyers on the record for the plaintiffs.

5. There has not been any delay as the original notice of motion to set aside the Dismissal Order was filed within a month of the Dismissal Order being made.

6. The plaintiffs have not provided a reasonable explanation as to why their proceeding was not prosecuted with due diligence

7. The application of the plaintiffs’ to set aside the order of this court made on 7th April 2009 dismissing the proceeding for want of prosecution is refused.

Cases cited:

Papua New Guinea Cases

Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119

North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145

Peter Dixon Donigi v. Base Resources Ltd [1992] PNGLR 110

Smith v. Ruma Constructions Ltd (2002) SC695

Obadia Buka v. Jude Baisi & Anor (2004) N2602

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Malt v. Queen (2009) N3577

Overseas Cases:

Nicholson v. Nicholson [1974] 2 NSWLR 59

Counsel:

Mr. L. Yandeken, for the Plaintiffs

Ms. B. Bakau, for the Defendants

11th August, 2009

1. HARTSHORN J. The plaintiffs apply for the order of this court dated 7th April 2009 to be set aside. That order was amongst others that, “This proceeding is dismissed for want of prosecution.” (Dismissal Order).

2. The Dismissal Order was ordered by me following the hearing of the defendants’ notice of motion filed on the 19th September 2008 which sought amongst others, that the proceeding be dismissed for want of prosecution. At that hearing, the plaintiffs were not represented.

3. When the plaintiffs’ amended notice of motion seeking to set aside the Dismissal Order was mentioned before me on the 18th June 2009, both counsel informed the court that their respective clients did not have any objection to me hearing the plaintiffs’ application to set aside the Dismissal Order that was made by me.

4. In this regard I note that this is in accordance with Order 4 Rule 49 (19)(4)(1) National Court Rules, (as amended by the Motions (Amendment) Rules 2005). It is as follows:

“An application to set aside ex parte order shall be made inter partes before the same judge who made the ex parte order.”

5. The application is brought by the plaintiffs pursuant to Order 12 Rule 8(3)(a) National Court Rules and s. 155(4) Constitution. As to s. 155(4) Constitution, counsel for the plaintiffs conceded that s. 155(4) is only to be relied upon to protect the primary rights of parties in the absence of other relevant law. In addition, s. 155(4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules: Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317 per Injia DCJ (as he then was). Consequently I will only consider whether the plaintiffs are able to have recourse to s. 155(4) if I determine that this court does not have jurisdiction under Order 12 Rule 8(3)(a).

Jurisdiction

6. The first issue is whether this court has jurisdiction to set aside an ex parte National Court order that dismisses a proceeding for want of prosecution. Counsel for the defendants submitted that this court does not have that jurisdiction and relied upon the recent National Court decision of Makail AJ (as he then was) in Malt v. Queen (2009) N3577, in which it was held amongst others, that as an ex parte order dismissing an entire proceeding for want of prosecution finally disposes of the proceeding, the same court does not have jurisdiction to set it aside, only the Supreme Court does on appeal.

7. In Malt v. Queen (supra), Makail AJ refers to the Supreme Court case of Smith v. Ruma Constructions Ltd (2002) SC695 which was a successful appeal against a National Court decision that set aside a summary judgment that had been granted after an ex parte hearing. Kapi DCJ (as he then was) after considering the approach taken by the trial judge said:

“The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge reviewed the decision of Woods J. The trial judge had no jurisdiction to do this under an application to set aside judgment under O12 r8 of the Rules.”

8. Before this however, Kapi DCJ had said that the discretion to set aside a default judgment under Order 12 Rule 35 is couched in identical terms to Order 12 Rule 8(2) and (3) and that the principles governing the exercise of discretion would be the same. He then said that those principles are well settled and detailed them.

9. It is clear then that Kapi DCJ was of the view that the National Court could set aside a National Court judgment or order under Order 12 Rule 8 after a consideration of the correct principles governing the exercise of discretion, but that in the case before Kapi DCJ, the trial judge had not done so and had instead embarked upon a review of another National Court judge’s decision.

10. In Malt v. Queen (supra), Makail AJ went on to say that:

“… in the context of an ex parte order dismissing an entire proceeding for want of prosecution, where a Court dismisses a proceeding for want of prosecution, the entire proceeding is at an end. It cannot be revived.”

“...an “ex parte” order dismissing the entire proceeding for want of prosecution is a permanent or final order”.

“… before the National Court can entertain an application to set aside any form of ex parte orders, it must satisfy itself that the ex parte order is an interim one.”

11. As to whether an ex parte order dismissing a proceeding for want of prosecution is a final order does not require determination here. I note in this regard that there are conflicting Supreme Court decisions on this point as to what constitutes a final order: Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119 and North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145.

12. If such an order is a final order, although the general rule is that a court ordinarily has no power to set aside a final order once it has been passed and entered, Order 12 Rule 8 National Court Rules and the New South Wales equivalent, Pt 40 r 9 from which our Rule is derived, deal with several exceptions to the general rule: Ritchie’s Supreme Court Procedure Vol. 1 40.9.

13. One of those exceptions is where the judgment or order has been made ex parte: Order 12 Rule 8(2)(b) and (c), and (3)(a). In this regard I refer to the New South Wales Supreme Court decision of Nicholson v. Nicholson [1974] 2 NSWLR 59, where Jenkyn J., after noting that the power to set aside or vary an order can be given to a court by a statutory provision or a validly made rule, considered Pt 40 r 9(3), which is the same as Order 12 Rule 8(3) and concluded at p.64 that its application is not limited to interlocutory orders but applies also to final orders.

14. After considering Smith v. Ruma Constructions Ltd (supra) and the other authorities cited, I am of the view that this court does have jurisdiction to set aside an ex parte National Court order that dismisses a proceeding for want of prosecution and to that extent, I respectfully disagree with Makail AJ where he expresses a contrary view in Malt v. Queen (supra).

Setting aside – principles

15. As referred to, the principles governing the exercise of...