(1) In this section
—
respondent , in respect of a decision to dismiss
an application in default of appearance of the applicant, means the person who
was the respondent at the final order hearing at which the decision was
dismissed.
(2) Where the court
—
(a) has
dismissed an application in default of appearance of the applicant under
section 42(1)(a), that applicant may, within 21 days of becoming aware that
the application was dismissed; or
(b) has
made a restraining order under section 42 in default of appearance of the
respondent, that respondent may within 21 days of the order being served on
the respondent,
or such further period
as the court may allow at a hearing fixed under subsection (3), apply to the
court, in the prescribed form setting out the grounds of the application, to
have that decision set aside.
(3) On receiving an
application under subsection (2) the registrar is to fix a hearing, to be held
in the absence of the other party to the proceedings, at which, subject to
subsection (4), the court —
(a)
where the application was made out of time, is to grant leave for the person
to continue the application out of time if satisfied that there was a
reasonable excuse for not commencing the application within the time allowed;
and
(b)
after taking into account the grounds of the application, is to —
(i)
adjourn the hearing of the matter to allow the other
party to oppose the matter if satisfied that the person who made the
application may have had a reasonable cause not to attend the hearing at which
the application was dismissed, or the restraining order made; or
(ii)
dismiss the application.
(4) If the applicant
does not attend a hearing fixed under subsection (3), the court, if it is
satisfied that the applicant was notified of the hearing, is to dismiss the
application.
(5) If the court
adjourns the matter under subsection (3)(b)(i) the registrar is to fix a
hearing and summons the other party to the hearing.
(6) At a hearing fixed
under subsection (5), where the other party is present, or if the other party
is not present the court is satisfied the other party was served with the
summons, the court is to hear the matter and —
(a) if
satisfied that the applicant had reasonable cause not to attend the hearing at
which the application was dismissed or the restraining order made, is to set
aside the decision made under section 42; or
(b) is
to dismiss the application.
(7) Where, under
subsection (6)(a), the court sets aside a decision made under section 42
—
(a) if,
immediately before the hearing at which the decision under section 42 was
made, an earlier order was in force in respect of the matter, the court is to
make an interim order in the same terms as the earlier order, unless any new
ground or matter is raised at the hearing fixed under subsection (3) or (5);
and
(b) the
registrar is to fix a hearing as soon as is practicable and summons the
respondent to the hearing.
(8) The registrar is
to prepare and serve an interim order made under subsection (7)(a).
(9) At a hearing fixed
under subsection (7)(b) the court is to re-hear the matter under section 42.
[Section 43A inserted: No. 38 of 2004 s. 25(1);
amended: No. 59 of 2004 s. 123.]