Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Foord v Avarip [1982] PGNC 6; N353(M) (22 April 1982)

N353(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 311 OF 1980

BETWEEN:

CHRISTOPHER FOORD
APPELLANT

AND:

SIMON AVARIP
RESPONDENT

Madang: Bredmeyer J
22 April 1982

APPEAL - Difference between ordinary summons and default summons in the District Court. Circumstances when an order obtained ex parte may be set aside.

COURTS - District Courts Act 1963 ss. 33, 149, 162.

CASES:
Green and Company Pty. Ltd. v. Green [1976] PNGLR 73
The Government of Papua New Guinea and Davis v. Barker [1977] PNGLR 386 followed.

REASONS FOR DECISION

BREDMEYER J: This is an appeal against a decision given ex parte by the Senior Magistrate at Madang, Mr. N. Silip, on 23rd October, 1980. Mr. Avarip had issued a complaint against Mr. Foord for K2,000 being

"moneys for the licence you worked under from February to September 1979 to buy crocodile skins and also for his boat and canoe being used. You have failed to share the profit and the complainant prays for an order to recover the abovementioned amount in full.

A summons was issued and duly served. It was an ordinary civil summons and not a default summons issued under s.162 of the District Courts Act.

I consider that an ordinary civil summons was correct and that a default summons could not have issued upon that complaint. A default summons can only be issued under s.162 for "a debt or other liquidated demand." A debt is for a precise sum of money owing under a contract, e.g. a loan of K100. A liquidated demand is similar to a debt, it means a specific sum of money due and payable under a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it is specified or named as a definite figure, requires investigation beyond mere calculation, then the sum is not a debt or liquidated sum but constitutes damages.

As I have said, the ordinary civil summons was correct. The K2,000 claimed was not a debt or liquidated demand. The complaint does not state that the parties agreed upon the payment of a monthly sum for the use of the complainant’s licence and canoe and that this sum multiplied by seven months totalled K2,000. Being an ordinary summons, the magistrate was then entitled under s.149 of the District Courts Act to proceed ex parte to hear and determine the complaint. That section required him to hear sworn evidence from the complainant and any witnesses he may wish to call and, if satisfied that the complainant had a cause of action and had proved it, to make an order in favour of the complainant. This the learned magistrate failed to do. Without hearing any evidence he simply ordered the defendant to pay K2,000 to the Complainant within two months. That is an error of law which amounts to a substantial miscarriage of justice and is sufficient for me to allow the appeal.

However the learned magistrate then made a second error. He failed to deal correctly with the defendant’s application to have the ex parte order set aside. The order was made at about 9.00 a.m. The defendant appeared at 11.00 a.m., explained why he was late, and complained about the order. In legal terms the defendant, who was not represented, was applying to have the ex parte order set aside under s.33 of the District Courts Act. The opening words of s.33 reads - "A conviction or order made when one party does not appear may, on application to the court, be set aside on such terms as to costs or otherwise as the court thinks just."

An application to set aside an order obtained ex parte may itself be heard ex parte, or notice of the application to be set aside may be given to the complainant. In this case the magistrate told the defendant to tell the complainant to come to court next day at 9.00 a.m. and he would rehear the case. The defendant located the complainant, told him the message, but the complainant did not appear; instead he returned to his village on the Rahmu River a long way from Madang. When the defendant appeared at Court the next day the magistrate failed to hear his application to set aside the judgment. Instead he advised the defendant of his appeal rights and provided a Notice of Appeal form which the defendant completed and lodged.

The defendant’s application to set aside the order could and should have been heard ex parte. A defendant is entitled to have an ex parte order set aside in one of two circumstances. One is if it is irregularly made, for example where there was no proof of service, or, as here, where the magistrate did not hear any sworn evidence. The other is where the defendant shows that prima facie he has a defence on the merits to the cause of action and gives an explanation as to why he did not appear to answer the summons. Then also the defendant should apply as soon as reasonably possible after he became aware of the judgment. Evidence on these matters should be heard on oath either orally or by affidavit. The case law on these matters comes from Green and Company Pty. Ltd. v. Green^[1] and The Government of Papua New Guinea and Davis v. Barker^[2] which deal with a similar power vested in the National Court to set aside default judgments.

In this case the order had been irregularly obtained and should have therefore been set aside. However as it was the same magistrate who gave that order he may not have realised his error the next day. But the appellant has satisfied me that prima facie he had a defence on the merits, had a reasonable explanation for being late at the court house, and certainly there was no delay in bringing his application. Had the magistrate allowed the defendant to put these matters before him on oath, the magistrate would have been bound to set aside his order.

For these reasons I allow the appeal, quash the order made and order the present Senior Magistrate at Madang, Mr. K. Deutrom, to rehear the case. The magistrate has given me a date and I therefore order the parties to appear before Mr. Deutrom on Thursday 6th May, 1982 at 1.00 p.m. The appellant has succeeded and normally the appellant would be entitled to his costs on this appeal. But in this case the appellant failed to appear on time before the magistrate. He lodged his appeal promptly but has been dilatory in prosecuting it. He did not enter it for hearing within 40 days, and the complainant took out a warrant of execution and has made several fruitless trips to Madang to see if the warrant has been executed and spent money on P.M.V. fares. I order the appellant to pay K60 costs to the respondent to be paid on 6th May.

Both parties appeared in person.

^[1] [1976] PNGLR 73.
^[2] [1977] PNGLR 386.