Makop On for and on behalf of Epelga Service Station v Billy Parako (2004) N2593

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Manuhu AJ
• Judgment Date: 24 June 2004
• Citation: (2004) N2593
• Judgment Number: N2593
• Year: 2004

Full Title: Makop On for and on behalf of Epelga Service Station v Billy Parako (2004) N2593

National Court: Manuhu AJ

Judgment Delivered: 24 June 2004

1 Practice and procedure—appeal—application to set aside exparte order—relevant considerations—appeal filed out of time.

2 Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145 and Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119 referred to

Ruling

___________________________

N2593

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN

APPEAL NO 380 OF 2002

MAKOP ON for and on behalf of EPELGA SERVICE STATION

Applicant

V.

BILLY PARAKO

Respondent

Mount Hagen: Manuhu, AJ

2004: June 17 & 24

RULING

Practice and procedure - appeal - application to set aside exparte order - relevant considerations - appeal filed out of time.

Cases cited.

Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145; and Shelley v. PNG Aviation Services Pty Ltd [1979] PNGLR 119.

Counsel.

Mr. Palme, for the applicant.

Mr. K. Peri, for the respondent.

24th June, 2004.

MANUHU, AJ: This is an application to set aside an exparte order made by the National Court. The matter originated from a claim in the District Court, where the applicant was ordered to pay K3,000.00 to the respondent. The applicant filed his appeal to the National Court on 28th October 2002. On 27th February 2003, a notice of motion was filed by the respondent seeking to have the appeal struck out for want of prosecution. The motion was dealt with exparte on 13th May 2003 and orders were granted accordingly. This application seeks to set aside that order.

In applications like this, the initial inquiry is whether the exparte order was made regularly or not. Where an exparte order has been made irregularly, the only just remedy is to rectify the irregularity by setting aside the exparte order. Non-compliance with an important procedural requirement under the National Court Rules is usually considered as an irregularity, which generally results in an exparte order being set aside. On the other hand, where an exparte order has been made regularly or in compliance with relevant procedural requirements, setting it aside is dependent on what is just and fair in all the relevant circumstances; and, what is just and fair is dependent on the reasons for the non-appearance which permitted the matter to proceed exparte; the merits of the applicant’s case; and, the promptness of the application to set aside exparte order.

The applicant has taken both routes. He submits firstly that he did not know that the appropriate application which sought to dismiss his appeal for want of prosecution was before the National Court. This point raises the need for service which I will deal with in due course. The applicant further argues that if he had been notified, he had a good explanation for his failure to promptly prosecute the appeal. He deposed that he was not aware that he was required to compile the appeal. He was waiting all the time for the National Court Registry to advise him of the hearing date of his appeal.

This explanation is valid in that it highlights the need for public institutions to reconsider its customer service practices, and general approaches to the public at large. Dispute resolution is in high demand in the country. The Constitution establishes the courts for the people to resort to for satisfactory dispute resolution. A Court Registry is the point of entry to this formal dispute resolution mechanism. It is at this entry point that a disputing party must be already informed of all that is required of him by the system. Where a party is represented, he will be informed and be instructed by his legal representative. Where a party is unrepresented, there must be some practices in place to provide not all but sufficient assistance to him. In a case like this, for instance, an appellant should be informed of the basic time requirements and the need to file an appeal book. I leave these comments for court administrators to consider at the appropriate time and venue.

In this proceeding, I am unable to accept the applicant’s explanations. He is a city dweller. He has easy access to the National Court Registry in Mount Hagen. He is a Ward Councilor and is associated in a significant way with Epelga Service Station. He is named as a party “on behalf of Epelga Service Station”. With such background, he must have known that his appeal would be heard by the National Court, and, to a reasonable man in the streets of Mount Hagen, that means he must seek legal assistance of some sort. It is unreasonable that, after filing his appeal on 28th October 2002, which was also filed out of time, he became inactive for seven months thereafter. He has now engaged the services of a private law firm. He should have done so earlier. In all the circumstances, I reject his explanation for the delay in prosecuting the appeal.

Counsel for the applicant has also raised an interesting point. As I...