An order made in a party’s absence is not final in the way a contested order is. Section 25 lets the absent party come back, but it says little about how, and the case law supplies the test.
The provision
A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on service on the other party of such reasonable notice as the Court directs, may (a) proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or (b) adjourn the hearing and determination to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.
It applies to both convictions and civil orders, to either party, and whether the order was made under section 143, section 125(a) or otherwise. Orders on a default summons have their own provision, section 159, with a stricter procedure; see setting aside a default judgment.
What must be shown
The Rabaul District Court refused to set aside an ex parte order because no defence on the merits was shown. On appeal it was argued that the “defence on the merits” requirement belongs to section 159, not section 25. Doherty J held that although section 25 and the National Court’s rule are not the same, the wording is sufficiently similar and similar principles apply, so the District Court properly required (1) an affidavit stating facts showing a defence on the merits; (2) a reasonable explanation why judgment was allowed to go by default; and (3) an application made promptly and within a reasonable time.
The Magistrates’ Manual adopts the same three conditions and adds that the absence of any obligation to file a defence in the District Court does not relieve the applicant from demonstrating a defence on the merits. For a complainant whose complaint was dismissed in his absence, the equivalent is a claim on the merits. The Manual also lists, for criminal convictions in absence, the seriousness of the charge as a further factor. See hearing a charge without the defendant.
Procedure
| Step | Note |
|---|---|
| File an application with the Clerk, supported by an affidavit addressing all three conditions | An application is a “complaint” under s 1; no form is prescribed, so a similar form suffices under reg 2(2) |
| Serve the other party with the notice the Court directs | Section 25 requires “reasonable notice”; 48 hours by analogy with s 159 is the minimum |
| If a warrant of execution has issued, ask for a stay pending the application | The power in s 159(1)(b) is specific to default summonses; for s 25 the Court relies on its power to make the order on terms, and regulation 46 |
| Attend and argue | The other party may file an answering affidavit |
| If set aside: the Court rehears at once, or adjourns on notice | Section 25(a) and (b) |
The Court’s powers on the application
A complainant in Wabag failed to appear at the return date and the complaint was struck out; her application to set aside was refused and further orders were made, including an enforcement order. Kangwia J held that the powers of a District Court on an application to set aside an ex parte order are prescribed by section 25; that striking out for want of prosecution is not prescribed by section 25; that the conditions under section 25 had not been complied with; and that the resulting orders were legally and procedurally flawed, amounting to a substantial miscarriage of justice. The decision was quashed and the case remitted for hearing by another competent court under section 230(1)(d).
The lesson is that section 25 is a two-stage provision: set aside, then rehear or adjourn. It does not license the Court to reach a different final result on the application itself, and it does not import the National Court’s dismissal powers. See is the District Court a court of record.
Terms
Section 25 allows the order to be set aside “on such terms as to costs or otherwise as the Court thinks just”. The usual term is that the applicant pay the costs of the ex parte hearing and of the application, fixed within the Regulation scale. Where the applicant’s explanation is thin, the Court may add a condition, such as payment of part of the sum into court under regulation 29.
The uncommenced section 24A
The District Courts (Amendment) Act 2009 inserts a section 24A providing that an order made when one party does not appear shall not be granted unless the Chief Magistrate has made rules of practice and procedure for such orders under section 21A, and makes section 25 subject to it. Once it commences, ex parte orders will depend on those rules being in place. The consolidation relied on here records that it had not commenced.
Appeal instead?
An ex parte order can be appealed under section 219 within one month, and a refusal to set aside is itself appealable, which is how Karai and Malipu reached the National Court. But the section 25 application is cheaper and faster, needs no recognizance on appeal, and puts the absent party back into the case in the same Court. Use it first.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.