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Pataure v Lavilau [2016] PGNC 283; N6482 (10 October 2016)

N6482

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 33 OF 2015

BETWEEN:

ROSELYNE PATAURE, TOBOINA MATARAGAP, TOLUBA PATAURE & RACHAEL PATAURE
Appellants

AND:
PIPE LAVILAU, ROBINSON LONGBUT & MONO LONGBUT
Respondents

Kokopo: Anis AJ
2016: 25^th August & 10^th October

APPEAL – District Courts Act Chapter No. 40 - appeal against ex-parte order - ex-parte order interlocutory in nature - appeal not against the final order which refused to set aside the ex-parte order - whether appeal is proper

Cases cited

Christopher M Smith v. Ruma Constructions Limited (2000) N1982
Paias Wingti v. Kawa Rawali (2008) N3716

Counsel

Mr S Tedor, for the Appellants
Ms Ainui, for the Respondents

JUDGMENT

10^th October, 2016

1. ANIS AJ: The appellants filed this appeal on 30 April 2015. They appeal against a decision of a trial magistrate made on 20 June 2014. The decision is an interlocutory ex-parte order.

2. The Order states and I read:

1. Each and severally ordered to pay K771.80 totalling up to K3,087 within a period of one month.
2. Orders made accordingly.
   

3. I must say that during the trial, I had difficulties trying to follow what decision the appellants were appealing against before this Court. I recall that I kept reminding counsel that he cannot rely on events or facts that have happened after the decision that is the subject of this appeal.

4. Having read the Appeal Book (AB), it seems quite clear to me that the whole appeal proceeding is misconceived and possibly amounts to an abuse of the Court process, although I do not think that it was intentional.

5. Why do I say that the appeal is misconceived? The answer is simple. After the ex-parte order was granted in favour of the respondents on 20 June 2014, the appellants applied to the same trial magistrate to try to set-aside the ex-parte order. The trial magistrate heard the application and refused it on 27 November 2014. The trial magistrate published his written decision, which starts at page 7 of the AB. The final order of the Court is and I read:

1. Application to Set aside, Ex-parte Order is refused.

2. Ex-parte Order made on 20th of June, 2014 is re-affirmed.

3. Orders made accordingly.

6. In my opinion, the decision of the trial magistrate made on 27 November 2014 is a final order. The only way forward for the appellants then, in my opinion, should have been to lodge an appeal against the final order of the trial magistrate, that is, his order of 27 November 2014. This is not what happened in the present case. The appellants here have lodged their appeal against the interlocutory ex-parte order of 20 June 2014. In my opinion, this is wrong and is an abuse of the Court's process. It is improper for a party to backtrack and file an appeal against any earlier interlocutory Court order after the said Court has delivered its final judgment or order in the matter.

7. To demonstrate, let me refer to a remark made by Justice Sakora in the case of Christopher M Smith v. Ruma Constructions Limited (2000) N1982. His Honour stated and I read:

Under our NCR, if the power (to direct the entry of summary judgment, for either party) has been exercised ex parte, such direction or order is liable to be set aside pursuant to O. 12, r. 8(2)(b). When the power has been exercised when both parties have been present, the direction or order is a final order, and the other party can only challenge it on appeal, pursuant to s. 14 Supreme Court Act (SCA). Sub-section (4) emphasises this by saying:

(Underlining is mine)

8. I also refer to Justice Hartshorn's decision in the case of Paias Wingti v. Kawa Rawali (2008) N3716. His Honour said and I read:

In determining whether a decision was final, the Court referred to the Supreme Court cases of North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145 and Oio Aba v. MVIL (2005) SC 779. Both cases effectively adopted the test in Bozson v. Altrincham UDC [1903] 1KB 547 namely:

Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

(Underlining is mine)

9. So in the present case, the ex-parte order of 20 June 2014 is not a final order. That is why the appellants had applied to try to set it aside. The trial magistrate heard the appellants' application to set aside the ex-parte order. The trial magistrate refused the appellants' application on 27 November 2014. Therefore, the correct approach, in my opinion, should have been to appeal against the final order of the Court, which is the Court Order of 27 November 2014.

10. The Notice of Appeal begins at page 3 of the AB. I read in part at page 4 of the Notice of Appeal which states:

Notice is hereby given that the Appellants intend to appeal against the decision and ex-parte order of the District Court at Kokopo made on the 20th day of June 2014, whereby the Appellants were each and severally ordered to pay K771.80 each, totalling K3,087 within one (1) month of the date of the order

(Bold lettering is mine)

11. In summary, I find that the appellants are attempting to appeal against the interlocutory ex-parte order of 20 June 2014 when the trial magistrate has already determined the proceeding on 27 November 2014. I find that the appellants before the same Court challenged the ex-parte order. I find that the trial magistrate refused the appellants' challenge to set aside the ex-parte Order. I find that, based on the Court's Order of 27 November 2014, the District Court proceeding was completed. I find that the only way to undo or re-visit the District Court proceeding is to appeal against the final order of the District Court, which is the one made on 27 November 2014. I find that this appeal is not against that final order of the Court.

12. I therefore find the appeal baseless as well as misconceived. I will dismiss the appeal with costs.

ORDERS OF THE COURT

I make the following orders:

(1) The appeal is dismissed.

(2) The appellants shall pay the respondents' costs of this appeal proceeding on a party/party basis, which shall be taxed if not agreed.

(3) Time is abridged.

Orders accordingly,

________________________________________________________________
Sialis Tedor & Associates: Lawyers for the Appellants
The Public Solicitor : Lawyers for the Respondents