ABCO Transport Pty Ltd v Timothy Sakaip

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 30 May 1997
• Citation: (1997) N1577
• Court: National Court
• Year: 1997
• Judgement Number: N1577

National Court: Injia J

Judgment Delivered: 30 May 1997

N1577

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 236 OF 1996

BETWEEN

ABCO TRANSPORT PTY LTD — APPELLANT

AND

TIMOTHY SAKAIP — RESPONDENT

Mount Hagen

Injia J

16 May 1997

30 May 1997

INFERIOR COURTS — Appeals — District Court — Application to set aside ex-parte order striking out appeal for non-attendance of Appellant in Court — No statutory provision allowing for such application — Application incompetent — Application dismissed — District Courts Act (Ch. No. 40), Part XI (SS. 219 — 246).

PRACTICE AND PROCEDURE — Inferior Courts — District Court — Appeal — Undesirability of applications for stay of execution of order appealed from made in another National Court in another province when substantive proceeding pending in another National Court in another province.

LAWYERS — Professional conduct — Professional negligence — Lawyer assuming court order never made by Court — Duty of lawyers to be attentive in Court and take accurate notes of Court's orders.

Cases Cited

Peter Rose v Yamu Samuel [1987] PNGLR 1

Kian Ninkints v Moki Rumints [1990] PNGLR 123

Leo Dugure v Avia Andrew Paru Unreported Supreme Court judgment SC 510 dated 18 October 1996

Counsel

K Peri for the Appellant

Respondent in person

30 May 1997

INJIA J: The substantive appeal relates to a decision of the District Court at Wabag made on 27 May 1996. On 20 September 1996, the Appellant sought "leave" of the National Court to file an appeal out of time and was granted by this Court. The Appellant then "appealed" against the decision pursuant to provisions of the District Courts Act (Ch. No. 40). The hearing of the substantive appeal was fixed for hearing on 15 November 1996 at 1.30 pm in the National Court at Mount Hagen. Notice of the hearing was sent out by the A/Registrar at Mount Hagen to both parties on 22 October 1996. Both parties received this Notice of Hearing and were aware of the fixture.

At 1.30 pm on 15 November 1996, the appeal came on for hearing before me. The Respondent was present in person. He had travelled down from Wabag. Neither the Appellant nor his counsel, Mr K. Peri from Warner Shand Lawyers of Mount Hagen was present. As there was no appearance by or for the Appellant and no explanation as to their absence before me, I made an order "striking out" the appeal for want of prosecution. Such power was given to the Court by S. 230 (f) of the District Court Act (Ch. No. 40) which provides: "On the hearing of an appeal, the National Court shall enquire into the matter, and may... (f) make such further or other orders as to costs or otherwise as the case requires". (my underlining).

The Appellant now applies to set aside the order of 15 November 1996 striking out the appeal and thereupon, re-instate the appeal.

I need to first deal with three procedural aspects as to the competency of certain procedural steps taken by the Appellant which concern me. The first aspect relates to the competency of this application. The District Court is a creature of statute whose practice and procedure is prescribed by statute: Kiau Ninkints -v- Moki Rumints [1990] PNGLR 123; Peter Rose v Yamu Samuel [1987] PNGLR 1. The practice and procedure relating to appeals from a decision of the District Courts is set out in Part XI (SS. 219 — 246) of the District Courts Act. There is no provision an Appellant whose appeal is struck out or dismissed for want of prosecution due to his non-appearance at the hearing, to apply to the National Court, to set aside the order dismissing or striking out the appeal. For instance, there is no provision similar to S. 25 of the District Courts Act which empowers the District Court to set aside an ex-parte order upon application by an aggrieved person. Where there is no such statutry provision, this Court cannot create one. The National Court may have power under the National Court Rules to entertain an application to set aside an ex-parte order but those rules do not apply to appeals against a decision of the District Court. The only next step open to the Appellant was to lodge an appeal against the National Court decision to the Supreme Court. I rule that this application is incompetent as being not allowed for under the District Courts Act.

The second aspect relates to the competency of the entire process of instituting the substantive appeal. This is an appeal which was filed in the Mount Hagen Registry of the National Court on 1/10/96 in respect of a decision of the Wabag District Court. The Appellant's lawyer in Mount Hagen filed the appeal. The decision of the Wabag District Court appealed from was made on 27 May 1996. The Appellant did not appeal within one month as prescribed by S. 220 of the District Courts Act. The last date for filing a Notice of Appeal expired on 27 June 1996. More than two (2) months after the 27 June 1996, the Appellant filed an application in the National Court at Mount Hagen, by Originating Summons No. 328/96, seeking an extension of time to lodge an appeal. But the Originating Summons only sought "leave" to "serve Notice of Appeal out of time". On 20 September 1996, the National Court at Mount Hagen granted the orders sought in those terms, that is, "leave" is granted to the Plaintiff to serve Notice of apeal out of time". On 1/10/96, the Appellant filed at the registry of the National Court at Mount Hagen a Notice of Appeal, Recognizance on Appeal and Entry of appeal to the National Court as required by S. 220 and 222 of the District Courts Act. The filing of a Notice of Appeal and Recognizance on Appeal constitutes the institution of an appeal: S. 220 (1) of the District Courts Act. In my view, as at the time the National Court granted...