CIA No.86 of 2006; RJ (Bob) Hall, Branch Manager of Ela Motors, Mt. Hagen and Toyota Tsusho (PNG) Limited trading as Ela Motors v Leo Nelson Balus (2012) N4834

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 19 October 2012
• Citation: (2012) N4834
• Court: National Court
• Year: 2012
• Judgement Number: N4834

Full Title: CIA No.86 of 2006; RJ (Bob) Hall, Branch Manager of Ela Motors, Mt. Hagen and Toyota Tsusho (PNG) Limited trading as Ela Motors v Leo Nelson Balus (2012) N4834

National Court: David, J

Judgment Delivered: 19 October 2012

N4834

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA No.86 of 2006

BETWEEN:

RJ (BOB) HALL, BRANCH MANAGER of

ELA MOTORS, MT. HAGEN

First Appellant

AND:

TOYOTA TSUSHO (PNG) LIMITED trading as

ELA MOTORS

Second Appellant

AND:

LEO NELSON BALUS

Respondent

Mt Hagen: David, J

2012: 19 October

PRACTICE & PROCEDURE – appeal from order of District Court – application to set aside ex parte judgment - first application struck out for want of prosecution - merits of application considered - second application struck out in the absence of parties – second application considered as an abuse of process – appeal to be allowed only if it appears to the Court that substantial miscarriage of justice has occurred – appeal allowed – District Courts Act, Sections 25,143, 146, 152 & 230.

Cases cited:

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

Leo Hannet & Anor v ANZ Banking Group (PNG) Ltd (1996) SC505

Grace Lome v Allan Kundi (2004) N2776

Albert Areng v Gregory Babia (2005) N2895

Albert Areng v Gregory Babia (2005) N2928

Kutubu Transport Limited v Peter Yoyo, App.101 of 2002, Unreported & Unnumbered Judgment delivered in Mt. Hagen on 16 January 2007

Stephen Ambo v Phillip Ame (2012) SC 1195

Counsel:

Koeya J. Peri, for the appellants

Peter Kak, for the Respondent

JUDGMENT

19 October, 2012

1. DAVID J: INTRODUCTION: This is a decision on an appeal instituted by the appellants by notice of appeal filed on 20 May 2006 against the decision of the Mt. Hagen District Court constituted by His Worship, Mr. Mark Pupaka made on 20 April 2006 ordering that the appellants’ notice of motion filed on 22 March 2006 seeking an order to set aside the ex-parte order made on 23 February 2006 be struck out.

2. At the hearing of the appeal, no issue was raised by the Respondent as to the competency of the appeal.

3. The parties filed written submissions and amplified them with their oral submissions. I have considered them.

BACKGROUND

4. On 2 March 2005, the Respondent commenced proceedings against the appellants in the Mt. Hagen District Court by Complaint No.17 of 2005 supported by an ordinary Summons to a Person Upon a Complaint. The matter was made returnable on 6 April 2005 at 9:30 am. Copies of the complaint and summons appear at pages 10 to 13 of the Appeal Book. The Respondent claimed that his motor vehicle, a white Toyota Land Cruiser utility with engine number 1HZ0033537 and bearing registration number HAC 692 (the motor vehicle) which was initially purchased by one Donald Yaki from the Second Appellant through the First Appellant as the Branch Manager and agent of the Second Appellant on 31 December 2003 and then re-sold by Donald Yaki to the Respondent on 3 February 2004 was impounded by police from Minj on 10 December 2004 because they suspected that there was something irregular about the motor vehicle in so far as the engine and chassis numbers were concerned and then brought the motor vehicle to the premises of the Second Appellant for verification with the Second Appellant’s sales records. The motor vehicle was returned to the Respondent after the Second Appellant admitted supplying the wrong engine number when it sold the motor vehicle to Donald Yaki.

5. The Respondent claimed that the police impounded the motor vehicle as a result of the appellants negligently supplying incorrect details of the motor vehicle when it sold it to Donald Yaki. The motor vehicle was kept at the premises of the Second Appellant for a period of 20 days from 10 December 2004 to 31 December 2004 (the period of detention).

6. The Respondent further claimed that he suffered loss and damage in the sum of K8,000.00 for loss of business during the period of detention calculated at a daily rate of K400.00 which was the amount he would charge for the hire of the motor vehicle together with interest and costs of the proceedings.

7. On 14 March 2005, the appellants through Warner Shand Lawyers, Mt. Hagen filed a notice of intention to defend the proceedings. A copy of the notice appears at pages 14 and 15 of the Appeal Book.

8. On 22 March 2005, the appellants filed their defence. A copy of the defence appears at pages 16 to 18 and 42 to 44 of the Appeal Book. The appellants denied liability on the basis that; first, except that the First Appellant was the Branch Manager, he could not be sued in his personal capacity; second, although the Second Appellant may have sold the motor vehicle to one Donald Yaki, they did not know and could not admit the claim; and third, police impounded the motor vehicle and brought it to their premises so the Respondent’s cause of action, if any, lay against the State.

9. On 28 April 2005, the appellants filed a notice of motion seeking an order to dismiss the entire proceedings. A copy of the motion appears at pages 19 to 20 of the Appeal Book. The application was supported by the Affidavit of Robert Hall, the First Appellant sworn on 26 April 2005 and filed on 28 April 2005 and the Affidavit of Service of Koeya J. Peri sworn and filed on 28 April 2005. Copies of these affidavits appear at pages 21 to 26 of the Appeal Book. In the affidavit evidence, the appellants asserted that the proceedings did not disclose any reasonable cause of action against them or that they were frivolous or vexatious therefore ripe for dismissal.

10. The depositions show that the matter was adjourned about 8 times since it first returned before the District Court on 6 April 2005 either because of administrative reasons affecting operations of the Mt. Hagen District Court or that the parties did not appear either in person or through their lawyers in the case of the appellants. The last adjournment was made on 10 November 2005 to a date which cannot be clearly ascertained from the depositions for an ex-parte hearing.

11. On 29 November 2005, the District Court constituted by His Worship, Casper Koi after conducting a hearing ex parte, entered judgment in favour of the Respondent in the sum of K8,000.00 plus interest at the rate of 8% and costs and ordered that the judgment be settled within two weeks of service of the order upon the appellants (the ex parte judgment). The presiding magistrate essentially observed that the appellants had no defence to the Respondent’s claim going by the defence filed which he said was so brief and lacking supporting documents therefore rendered insignificant. Copies of the typed and hand-written decision appear at pages 67 to 74, 86 to 91 and 101 to 110 of the Appeal Book respectively. The Respondent relied on his Affidavit in Support filed on 22 November 2005 at the ex parte hearing which appears at pages 61 to 65 and 92 to 100 of the Appeal Book.

12. The appellants’ notice of motion filed on 28 April 2005 was not dealt with or determined by the District Court it seems from the depositions prior to the entering of the ex parte judgment.

13. On 10 January 2006, the appellants filed a notice of motion seeking an order to set aside the ex parte judgment. A copy of the notice of motion appears at pages 27 and 28 of the Appeal Book. This motion was made returnable on 25 January 2006 at 9:30 am. The application was supported by the Affidavit in Support of Notice of Motion of Koeya J. Peri sworn on 10 January 2006 and filed on 12 January 2006 and the Supplementary Affidavit of Koeya J. Peri sworn and filed on 12 January 2006. Copies of those affidavits appear at pages 29 to 44 of the Appeal Book. In Mr. Peri’s Affidavit in Support of Notice of Motion sworn on 10 January 2006 and filed on 12 January 2006, he sought leave to rely on the Affidavit of Robert Hall sworn on 28 April 2005 to support the application and also referred to the defence filed. The Respondent filed his Affidavit in Response sworn and filed on 24 January 2006 in rebuttal.

14. According to the District Court Civil Work Sheet recording proceedings of 25 January 2006, a copy of which appears at page 118 of the Appeal Book, only the Respondent appeared in person. The notice of motion was then adjourned for hearing on 8 February 2006.

15. There is no official record of the proceedings of 8 February 2006 in the Appeal Book.

16. However, according to the District Court Civil Work Sheet recording proceedings of 23 February 2006, a copy of which appears at page 75 of the Appeal Book, the notice of motion was listed to be dealt with that day. Only the Respondent appeared in person before the District Court constituted by His Worship, Mr. Mark Pupaka. The appellants did not appear either in person or by their legal representatives so the notice of motion was struck out with costs awarded to the Respondent and the ex parte judgment was confirmed: see the minute of the relevant order at page 115 of the Appeal Book. The court had noted that that was a completed matter, but was brought before for it through the notice of motion and was not satisfied that the...