James Aiwasi v Monty Derari

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kandakasi, J.
• Judgment Date: 02 February 2017
• Citation: (2017) N6602
• Judgment Number: N6602
• Year: 2017

Full : WS No 1291 of 2007; James Aiwasi v Monty Derari – Oro Provincial Administrator and Oro Provincial Government and the Independent State of Papua New Guinea (2017) N6602

National Court: Kandakasi, J.

Judgment Delivered: 2 February 2017

N6602

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

WS. No. 1291 of 2007

BETWEEN

JAMES AIWASI

Plaintiff

AND:

MONTY DERARI – ORO PROVINCIAL ADMINISTRATOR

First Defendant

AND:

ORO PROVINCIAL GOVERNMENT

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Kandakasi, J.

2015: 17th June

2017: 2nd February

EVIDENCE – Application for set aside of ex parte orders – Affidavit evidence required meeting each of the requirements for set aside of ex parte orders – Only lawyer filing affidavit in support – Lawyers affidavit cannot be evidence of parties explanations and evidence going into merits of the case – Effect of – Application not made out.

JUDGMENT & ORDERS - Ex parte orders dismissing proceedings for want of prosecution - Application by notice of motion seeking set aside of – Dismissed or concluded proceedings provide no legal or factual and logical foundation for – Appropriate remedy - Appeal or reissuance of proceedings if dismissal not after hearing on the merits – Courts Jurisdiction – Court has power to set aside ex parte orders in appropriate cases except only in cases where the issue is determined or the proceedings are dismissed – Principles governing set aside of ex parte orders – No satisfactory explanation for allowing ex parte orders – No Affidavit filed by plaintiff explaining want of prosecution and going into merits of the case – Court orders question claim not satisfactorily addressed – Only lawyer filing affidavit in support – Insufficient – Application dismissed - Order 12 r. 8 (4) National Court Rules.

PRACTICE & PROCEDURE – Applications seeking to set aside ex parte dismissal orders by amended notice of motion – No provision in the National Court Rules allowing for amended notice of motions – Effect of – Application not properly before the Court.

PRACTICE & PROCEDURE – Application by notice of motion seeking to set aside ex parte dismissal orders – Whether National Court has jurisdiction to entertain application – Motions can only be filed on the foundation of existing or current proceedings – Dismissed or concluded proceedings provide no legal or factual and logical foundation for – Appropriate remedy – Appeal or reissuance of proceedings if dismissal on after hearing on the merits – Power of Court to set aside ex parte orders except only in cases where the issue is determined or the proceedings are dismissed – Order 12 r. 8 (4) National Court Rules.

Cases Cited:

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

Breni Kora v. Sergeant Manuma Titima (2012) N4730.

Bruce Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112.

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

Curtain Bros (QLD) Pty Ltd and Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285.

Daniel Bali Tulapi v. Alphonse Niggins (2011) SC1111.

Daniel Ronald Walus v. The State (2007) SC882.

Dr Yvonne Sapuri v. Peter Kolly (2014) SC1310.

Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176.

Feflo Plantation (PNG) Ltd v. Lolo Development Corporation Ltd (2013) N5065

Harry Tovon v .Carl Malpo & Ors (2016) N6240.

Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1999) SC607.

Koitaki Farms Limited v. Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143.

Kundu Consultants Limited v The Independent State of Papua New Guinea (2001) N2128.

Makop On v. Billy Parako (2004) N2593.

Motor Vehicles Insurance (PNG) Trust Limited v Yama Security Services Limited (2009) SC1004.

Motor Vehicles Insurance (PNG) Trust v. Viel Kampu (1998) SC587.

Muriso Pokia v. Mendwan Yallon (2014) SC1336.

Peter Flynn Aihi v. The State (2000) N2006.

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

POSFB v. Paul Paraka trading as Paul Paraka Lawyers (2004) N2791.

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

PNG National Stevedores Pty Ltd & Anor v. The Honourable Andrew Baing, PNG Harbours Board & Anors;
PNG Harbours Board v. PNG National Stevedores Pty Ltd (1998) N1705.

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

Richard Dennis Wallbank and Jeanette Manifie v. The Independent State of Papua New Guinea [1994] PNGLR 78.

Robert Kittika v. Pastor Peter Kapia & Ors (2010) N4051.

Salamo Elema v. Pacific MMI Insurance Ltd (2007) SC1321.

Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906.

The State v. The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344.

Thomas Rangip & Fountain Finance Ltd v. Peter Loko & National Capital District (2009) N3714.

Thomas Babia v. Mr. Pepi Kimas (2009) N3940.

TST Holdings Pty Ltd & Anor v. Tom Pelis & Anor (1997) SC534.

William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844.

Counsel:

W. Mapiso, for the Plaintiff

S. Vate, for the Third Defendants

No Appearance, for the First and Second Defendants

2nd February, 2017

1. KANDAKASI J: By notice of motion filed on 27th March 2015 and later amended on 29th May 2015, the applicant, James Aiwasi who is plaintiff in this proceeding is seeking to set aside an order dismissing the proceeding for want of prosecution on 4th March 2015.

2. This application presents the following issues for the Court to consider and determine:

(1) Whether an application by notice of motion is the correct mode to seek a set aside of an ex parte order dismissing a proceeding?

(2) If the answer to question (1) is in the negative, what is the correct mode?

(2) Subject to answer to questions (1) and (2) above, whether the Applicant has met all of the requirements for a set aside of an ex parte order dismissing the proceeding?

Relevant Background and Facts

3. Aiwasi, issued this proceeding on 12th November 2007 claiming a breach of a contract of employment between himself and the Oro Provincial Government for the position of District Administrator of the Ijivitari District in the Oro Province. After the close of pleadings, the matter was on the Court’s directions hearing list for some time. On 16th October 2013, the Court amongst others directed Aiwasi to reconsider his claim and ensure that he had the necessary legal foundation for his claim with a view to withdrawing the proceeding. Subsequently, on 3rd December 2013 when the matter next returned to the Court, the proceedings were adjourned to 12th February 2014 to enable the First Defendant to turn up in Court and address the claim against him and the Oro Provincial Government. That was the last time the matter was in Court and Aiwasi did nothing about his claim. Concerned with a prolonged inactivity on the Court file, the Court in early February 2015, decided to have the matter listed for mention on 4th March 2015. The Court communicated that fixture by letter dated 16th February 2015. That communication required the parties to come prepared to assist the Court to progress the matter to finality.

4. On 4th March 2015 the matter came before the Court. Neither of the parties turned up ready to assist the Court as directed. Having regard to lengthy period of unexplained inactivity on the file, the Court decided to dismiss the proceedings for want of prosecution. On 27th March 2015, Aiwasi’s, Guardian Legal Services filed a notice of motion seeking to set aside the orders dismissing the proceedings. Aiwasi’s counsel, Mr. Mapiso filed the only affidavit in support of the application. He claims that his client was engaged in settlement discussions with the State and that his office received the Court’s letter of 16th February 2015 on an unspecified date after the 4th of March 2015. These claims are not supported by an evidence of the kind of steps taken in pursuance of the settlement discussions with the State and records of when the Aiwasi’s lawyers received the Courts letter. Clearly therefore these are only unsubstantiated claims. Aiwasi as the plaintiff has not filed an affidavit explaining the inactivity for more than a year from 3rd December 2013 to 04th March 2015 and demonstrate that he is now committed to pursue his matter with due compliance of the orders and directions of the Court.

Whether an application by notice of motion is the correct mode to seek a set aside of an ex parte order dismissing a proceeding?

5. With these facts in mind I will deal with the first issue presented first. In my recent decision in Harry Tovon v .Carl Malpo & Ors,

(2016) N6240.

11 I said it was procedurally wrong to file and proceed on the basis of an amended notice of motion. I explained as follows:

“Unlike the...