PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2023 >> [2023] PGNC 378

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kumono v Ghate [2023] PGNC 378; N10511 (5 October 2023)

N10511


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 122 OF 2021


JOESPH KOM KUMONO In his official capacity as Chairman of Simbu Small Holder Coffee Growers Association and Former Non Ex-Officio Board Director of Coffee Industry Corporation Limited
Plaintiff


V


HON POGIO GHATE In his official capacity as Vice Minister for Agriculture & Livestock
First Defendant


And
HON JOHN SIMON In his official capacity as Minister for Agriculture & Livestock
Second Defendant


And
NATIONAL EXECUTIVE COUNCIL
Third Defendant
And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


And
JOHN ARRE In his official capacity as Non-Executive of the Board of Coffee Industry Corporation Limited
Fifth Defendant


Waigani: Miviri J
2023: 05th October


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application Pursuant to Order 16 Rule 13 (1) Order 12 Rule 8 (3) and Order 4 Rule 49 (19) (4) NCR – Ex Parte Order To Be Set Aside – Proceedings Struck out be Reinstated – No Entry of Judgment – Court Order Matter Set for Trial at 1.30pm – Matter Struck Out at 9.30am for Want of Prosecution – Applicant Took out & Filed Orders – Complied & Implemented Orders – Materials Warranting Setting Aside of Original Orders Made –Judicial Discretion Improperly Exercised – Reinstitution of Matter – Listings For Directions – Cost in the Cause.


Cases Cited:
Barry v Luma [2017] PGSC 42; SC1639
Christian v Namaliu [1996] PGSC 34; SC1583
Elema v Pacific MMI Insurance Ltd [2007] PGSC 52; SC1321
Oroi v Rove [2020] PGNC 398; N8644
Pruaitch v Manek [2019] PGSC 123; SC1884
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Takori v Yagari [2008] PGSC 3; SC905
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906


Counsel:
B. Poki, for Applicant
R. Mobiha, for Respondents


RULING


05th October 2023


  1. MIVIRI, J: This is the ruling on the Applicants notice of motion of the 02 day of June 2022 where he seeks the following orders: -
  2. The applicant primarily invokes Order 12 Rule 8 (3) and Order 4 Rule 49 (19 (4) of the Rules. The former is in the following terms:

8. Setting aside or varying judgement or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

(2) The Court may, on terms, set aside or vary a judgement—

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order—

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.


  1. The order is effective jurisdictional base where the subject Judgement has not been entered. Because the underlined bolded excerpt of the order I set out above is clear that the subject judgment applied by applicant if it is entered, will not be the subject for consideration under this Order. It is therefore upon the applicant to show that the subject Judgement has not been entered. Here in so moving the applicant relies on the affidavit of Bare Mol of the firm Warner Shand Lawyers who deposes that he had carriage of the matter and appeared with Ms Rose Mobiha from the office of the Solicitor General, lawyers for the defendants on the 11th April 2022. The Court presided by Acting Justice Tamade made the following Orders:
  2. Annexure “A” is a copy of that subject order issued. He complied with the order and filed the Notice of hearing annexure “B1” on the 22nd April 2022 with the Written Submissions, annexure “B2” on the 29th April 2022. Which were not accorded same by the defendants. They did not comply with the orders issued. On the 28th April 2022 he served the orders that he had obtained personally on the office of the Solicitor General per Ms. Carmeline Tauwaole who endorsed acknowledged by annexure “C” the letter. And both documents fixed the implementation of the Court order as fixing the substantive hearing on 03rd May 2022 at 1.30pm Not 9.30am.
  3. I attended the Court on the 03rd May 2022 for the substantive hearing but was surprised when the Court informed me of the matter being dismissed for want of prosecution at 9.30am in the morning. I draw to the Court that the Court order of the 11th April 2022 and the notice of the hearing as dated. To which the Court responded that Ms Mobiha representing the Defendants was in Court in the morning hence the Court dismissed the proceedings for want of prosecution and that I have taken appropriate steps. That the proceedings can be dismissed for want of prosecution if I failed to attend or was not in Court at 1.30pm as per the Court orders taken out served. That I believe State Counsel misled the Court to make the orders that it made dismissing the proceedings.
  4. This evidence is not contradicted by the State Respondents here who have not filed any evidence. Nor have they led any evidence to rebut the evidence relied of by the applicant. Ms Mobiha has defended that the Court of its own volition made the orders it did. That She had no part as to how the Court made that decision. She contends that it is a final order, and the applicant has recourse by appeal not a notice of motion. And cites Barry v Luma [2017] PGSC 42; SC1639 (3 November 2017) that, order 12 Rule 8 (3) cannot be relied on in the notice of motion filed to reinstate the case as it is a final order. It cannot be set aside by a notice of motion here. She does not explain why the matter was called up at 9.30am in the absence of the applicant. Nor does she having been served versed with the order now before court did not take the pains to inform the Court of that fact. There is no transcript of the proceedings placed before me, nor is there any other material to convince that what the applicant contends did not happen. There is no material to accord that it is entered as the Judgement on that day in the matter. Which by the language of Order 12 Rule 8 (3) set out above makes it open to consider what the applicant prays for here.
  5. For one the language of the order is clear that initial order was not varied so that the matter was now to be heard at 9.30am not 1.30pm as initially set. Unless and until that order is varied in accordance with proper materials to effect: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010), it cannot be overridden in its application. The applicant was entitled to wait to see the matter at 1.30pm because of the initial order. He discharged the particulars of the order implementing deposed to in his affidavit. It does not demonstrate that he was lacking in the discharge of the orders made. It is not like what this Court observed in Oroi v Rove [2020] PGNC 398; N8644 (11 November 2020) and refused a similar application based on the same order as here. There the order dismissing was entered which is not the case here. There is no evidence to this effect. What is clear is that this matter was to proceed at 1.30pm on the 03rd May 2022. That is the reason why the applicant was ready with his submissions filed as ordered. It is not as if he did not comply. He complied and was intent on seeing out what he had attained after grant of leave. His preparations did not accord that he be heard and Justice that he sought did not eventuate because effectively there was no hearing of his plea. On the material he has presented if the motion is refused his plea for Justice will not be heard.
  6. Yes, there must be finality to proceedings: Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). But that exercise must be Judicially considered with facts to walk that path not without. Here the facts that have been placed by the applicant depict that he was intent to see out his plea to a hearing that never occurred, because he was summarily dismissed without being heard. Here it is relevant to consider Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008) which states that the Courts will be slow to dismiss or remove a litigant from the Judgement seat. All facts must be properly considered before the ultimate as here is issued. That is not the case against by the defendants. The applicant’s evidence is unchallenged. He was not given opportunity to be heard but was summarily dismissed.
  7. It is an abuse of process to reignite a matter already heard and determined: Christian v Namaliu [1996] PGSC 34; SC1583 (18 July 1996). And multiple actions mounted on the same matter amounts to abuse of process: Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008), reiterated affirmed in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). Would it be reigniting that cause determined here again? For one there is no hearing accorded the applicant. The material relied on do not show an abuse but denial of Justice if the Orders at first instance remain. Because viewed in aggregate, the material relied on did not justify that it was proper to dismiss the proceedings. A judicial review proceeding where leave was granted as of the 20th September 2021 demonstrated arguable cause that was subdued by the dismissal. The substantive hearing did not come reading the submissions that were filed in anticipation. Audi alteram partem remains integral to Judicial review proceedings. And here the materials led evidence that dismissal eventuated without hearing the applicant. And that Judgement has not been entered. It is therefore within the realm of the subject order to be revisited as applied here. It is not as if the applicant has procrastinated the cause of action and demonstrated delay warranting the exercise of discretion here. Which was not the same for the defendants. It means the materials relied established that the applicant was genuinely aggrieved and was intent on seeing out the matter in Court. There is submission filed for the substantive cause of action to be heard at 1.30pm following the directional orders.
  8. The language of this Rule is not catered to reignite, reagitate what has been properly glossed out by a hearing leading to a decision as in Christian v Namaliu (supra). It in my view is geared as here where injustice is evident because there is no hearing accorded and through no fault of the applicant his cause is dismissed. In my view he has recourse by Order 12 Rule 8 (3) to be given an opportunity to air his grievance. It is clear here that the Court was not assisted as to the orders it had made earlier in respect of the matter, particularly setting it at 1.30pm that day 03rd May 2022. And it is clear this was not the case by counsel for the State defendants who appeared before the Court, she did not alert the Court to that order earlier directing hearing at 1.30pm. The evidence here is clearly in favour of the grant of the motion that the order ex parte dismissing is revisited and for the reasons set out above is set aside forthwith by virtue of Order 12 Rule 8 (3) of the Rules. It would be in order considering all set out above emphasis clear from Elema v Pacific MMI Insurance Ltd [2007] PGSC 52; SC1321 (27 June 2007). And so, this proceeding is hereby reinstated to the records of the Court forthwith. It will be called up for directions on Monday 09th October 2023 at 9.30am.
  9. The formal orders of the court are:

Orders Accordingly.


__________________________________________________________________

Warner Shand Lawyers: Lawyers for the Applicant

Office of the Solicitor General: Lawyers for the State Defendants

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/378.html