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Tulusan v Gelong [2005] PGDC 132; DC550 (22 September 2005)

DC550

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 1234 of 2005

BETWEEN

KALANG TULUSAN
Complainant

AND

PENINAH GELONG
Defendant

Lae: C Inkisopo
2005: 22 September

Civil - District Court Act- Ex parte judgment order may be set aside on such terms as to costs or otherwise as the Court thinks just – application under Section 25 of Act to set aside judgment regularly entered through ex – parte hearing.

Practice & Procedure – Principles governing application to set aside regularly entered judgment reasons given before – hand advising Court of potential non – appearance on date of hearing date – requesting for matter to be fixed at a given period in certain months – letter requesting that fixture hand – delivered to Court Registry which was not attached to Court depositions by Registry Clerks-

Practice & Procedure – Application to set aside ex parte judgment order – application to be made without delay – Defence on merits to be shown or disclosed by or in affidavit material.

Cases Cited
Green & Company P/L –vs-Green [1976] PNGLR 73
William Duma –vs-Yehiura Hriewazi & Anor [2004] N2526

Counsel
Defendant in Person
Complainant not present in court

22 September 2005

REASONS FOR RULING ON APPLICATION TO SET ASIDE EX-PARTE
JUDGMENT ORDER

C.Inkisopo : This Application was filed on 10 February 2005 where the Applicant seeks to set aside a certain ex-parte judgment order entered against her for an alleged claim for “defamation”. This Application has had its fair share of mentions at the District Court with a brief of its chronology of appearances for mentions which stand as follows;-

1. First mention after application filed on 10 February 2005 was on 01 March 2005 when certain
   
2. Injunctive orders were made in the case
   
3. Matter was next adjourned for mention to 21 April 2005
   
4. Matter was next set for yet another mention to 19 July 200
   
5. Matter was on 19 July, 2005 fixed for 23 August, 2005at 9:00am at the specific request in writing of the Complainant/Respondent via a letter to the Court House dated 11 July, 2005 when he would be available for the trial.
   

2. This was a simple application for a hearing into a set aside application of an ex-parte judgment order but the case seemed to have gone through unnecessary mentions after mentions with no hope of its reaching a finality.

3. On the 23 of August, 2005, when the matter came on before me, Applicant was ready in Court to move her application whilst the Respondent at whose specific written request the hearing of this matter was fixed for 23 August, 2005 was not present. I was of the view that this Application has been going on unnecessarily for far too long for just a mere application to set aside ex-parte judgment order and to my mind, it has by necessity, to be brought to an end.

4. When the matter came on before me, I became of the view that the matter of the hearing of the application must proceed and I so allowed the Applicant to move her application.

5. After hearing the Applicant, I reserved my ruling to 22 September, 2005 at 9:00 am with an undertaking to deliver a written judgment and this I now do so.

6. When the matter came before me on 23 August 2005, I noted it to be one that needs to be dealt with immediately and the Court considered that it would be most improper to adjourn it further for mentions without good reasons for doing so. The Court had time to deal with the Application and in view of the fact that the Respondent specifically asked for 23August 2005 to make his appearance, I proceeded to hear the Application without the Respondent simply because even if he did make his appearance then (23 August, 2005), I would still have proceeded to hear the matter and not adjourn as the Court had the time as Lae District Court has many other cases to deal with and to further adjourn is only to create more congestion to the already overloaded Court . When the Respondent failed to attend on that day, the Court took it that the Respondent of his own volition chose not to appear – and so be it!

7. Applicant accordingly was allowed to move her application where she asked the Court to set aside the ex-parte judgment order entered against her dated 20 January 2005 for the payment by her to Respondent the sum of one thousand, six hundred and forty kina (K1,640.00) as damages . In support of her application, Applicant swore to and filed and served affidavit material with several annexures marked from “A” to “D”.

8. The principles governing applications of this nature are well settled in this jurisdiction starting with the oft-cited case of Green & Company -vs- Green [1976] PNGLR 73 and subsequent other numerous cases that have pronounced and expanded on and developed by the higher Courts in this jurisdiction.

9. The basic requirements being;-

1. Applicant must explain why judgment was allowed to be entered against him/her,
   
2. The application to set aside must be made without delay,
   
3. There must be defence on merits
   

3:1 Such defence on merits must be disclosed in affidavit material supporting application

3:2 Application to set aside judgment entered by ex-parte proceeding should be granted only on affidavit material disclosing defence on merits and on the Court satisfying itself of the Applicant’s compliance with the other requirements as set out above]

10. The Applicant would seem to me to have met all the above requirements.

11. For instance, she explains why she was not available when judgment was entered against her via an ex-parte proceeding.

12. The Applicant shows in her affidavit annexing a copy of her letter of request dated 10 December, 2004 that she hand-delivered to the Court Registry for filing in the relevant Court depositions for the Court’s notice when it shall have been noted by the presiding Magistrate for his appropriate actions as borne out in her affidavit paragraph #2 in the third line. The Registry Clerk there told her that he’d attach the letter with the relevant Court papers so with that assurance, she proceeded on her leave. This was a Court Registry staffer telling her so she had no reason to doubt that assurance thus she went away thinking that everything was under control – alas! - Only to find on resumption of duties that an order had already been handed down against her in favour of the Complainant for the payment of one thousand, six hundred and forty kina (K1,640.00) on 20 January 2005. Just after two (2) weeks later, the Applicant filed this application. The order itself was served on her on the 07 of February, 2005. Then only within three (3) days after she was served the Court Order than did she file this application - a very prompt action in my view!

13. The Applicant has shown to my satisfaction that she has provided reasonable explanations as to why she was not available when the matter was heard. She has also shown that she has defence on merits and that such defence has been disclosed and set out in her affidavit and that on the overall, I am satisfied that the Applicant has made out her case such that the ex-parte judgment order entered against her on 20 January 2005 should not stand but be set aside and the substantive cause of the matter reinstated for mention for a subsequent hearing date to be fixed.

14. I therefore order that:-

1: The Court ex-parte judgment order of 20 January, 2005 in favour of the Complainant/Respondent is set aside forthwith

2: The substantive cause of the matter is adjourned for mention to 06 October, 2005 at 9:00am

Kalang Tulusan Complainant in Person
Peninah Gelong Defendant in Person