Bernard Steven Philipae v Atio Igaso (2011) N4366

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J.
• Judgment Date: 25 August 2011
• Docket Number: CIA NO 51 0F 2011
• Citation: (2011) N4366
• Court: National Court
• Year: 2011
• Judgement Number: N4366

Full Title: CIA NO 51 0F 2011; Bernard Steven Philipae v Atio Igaso (2011) N4366

National Court: Cannings, J.

Judgment Delivered: 25 August 2011

N4366

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 51 0F 2011

BERNARD STEVEN PHILIPAE

Appellant

V

ATIO IGASO

Respondent

Madang: Cannings J

2011: 19, 25 August

APPEAL

COURTS – District Court – absence of defendant in civil proceedings – duty to observe natural justice – effect of orders made in absence of party – District Courts Act, Section 143 – circumstances in which the District Court can proceed to hear and determine a complaint in the absence of the defendant.

The respondent obtained from the Madang District Court an order under the Summary Ejectment Act for possession of a block of land he claimed that he owned. The order had the effect of evicting the appellant, who had been residing on the land with his family, and requiring him to at his own cost remove all fencing and repair all earthwork he had carried out on the property. The appellant appealed against the order on the ground that he was never served the complaint by which the District Court proceedings were instituted and the order was made in his absence, thus he was denied a right to be heard and natural justice.

Held:

(1) The appellant was not served the complaint and this amounted to a denial of his right to be heard and a denial of natural justice. It was also apparent that the presiding magistrate made the ex parte order in contravention of Section 143 (where defendant does not appear) of the District Courts Act.

(2) The procedural errors of the District Court led to a substantial miscarriage of justice.

(3) The District Court order was quashed and the matter remitted to the District Court for rehearing in accordance with law.

Cases cited

The following cases are cited in the judgment:

Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Primus Kikia and 3 Others v Kikia Solowet (2009) N3682

Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

APPEAL

This was an appeal from a decision of the District Court ordering recovery of possession of land to the respondent.

Counsel

J Maingu, for the appellant

B W Meten, for the respondent

25th August, 2011

1. CANNINGS J: This is an appeal against an eviction order of the Madang District Court which was issued against the appellant, Steven Bernard Philipae. The order was made on 8 March 2011 under the Summary Ejectment Act. It stated that the respondent, Atio Igaso, who was regarded by the District Court as the registered proprietor of Section 66, Allotment 32, a residential block in Newtown, Madang, was entitled to recover possession of his property, and that the appellant, who had been residing on the block with his family, had to at his own cost remove all fencing and repair all earthwork he had carried out on the property. The appellant has appealed against the order on the ground that he was never served the complaint by which the District Court proceedings were instituted and the order was made in his absence, thus he was denied a right to be heard and natural justice.

2. The respondent argues that, in fact, the appellant was served the complaint but if the court finds that he was not served, the appeal should still be dismissed as there has been no substantial miscarriage of justice as the respondent was indisputably the registered proprietor and was entitled to the order made in his favour.

3. Three issues arise:

1 Was the complaint served on the appellant?

2 Was there a substantial miscarriage of justice?

3 What orders should be made by the National Court?

1 WAS THE COMPLAINT SERVED ON THE APPELLANT?

4. The appeal book reveals that the complaint was mentioned in the District Court on 18 November, 25 November, 9 December, 15 December and 23 December 2010 and on 7 February and 10 February 2011 before the order the subject of appeal was made. On none of those occasions was there an appearance for the appellant or any proof that the complaint had been served on him. Only on 8 March 2011 did the presiding Magistrate become satisfied that the appellant had been served. This is apparent from his Worship’s notes which record the respondent’s counsel, Mr Meten, as being present and stating “we now file our POS [proof of service]”. The proof of service in question is a pro-forma proof of service form on Meten Lawyers letterhead that had been partially filled in and signed by Constable Paul Yazing of Madang Police. This form is undated and fails to give details of the person on whom the complaint was served and the date, time and place of service. It simply states: “served and he refused to sign”. This is insufficient proof of service. No other evidence was presented to the National Court on this issue so I find as a fact that the complaint was never served on the appellant.

2 HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?

5. This is a critical question to ask as Section 230(2) of the District Courts Act states:

An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

6. Mr Meten, for the respondent, submits that there has been no miscarriage of justice as the respondent’s case for possession of the property was so strong the District Court undoubtedly made the correct order. The respondent was the registered proprietor of the property and an affidavit filed in the District Court provided evidence of that. The respondent had indefeasible title so it was exactly the sort of situation in which the District Court could make an order for possession under Section 6 of the Summary Ejectment Act. The District Court made no error so the appellant has been done no injustice and there would be no point in the matter returning to the District Court.

7. These submissions gloss over the significance of the appellant not being served on the complaint. Giving all parties to a court case proper notice of the hearing is a fundamental component of any court’s duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case is at risk of having a decision made against them and has a constitutional right to be dealt with fairly in open court. In this case the appellant was at risk of being ejected from land on which he lived. His rights to a fair and open hearing are conferred by Sections 37(11) and (12) (protection of the law) of the Constitution, which state:

(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

8. Those are basic, human rights and they are enforceable under Section 57 of the Constitution. The duty of every court in the National Judicial System to accord natural justice to parties and to conduct its proceedings fairly is reinforced by Section 59 (principles of natural justice) of the Constitution, which states:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

9. All of these principles were breached in the present case. It is no answer to such a serious breach of the principles of natural justice to say to someone ‘Well, don’t worry about it, there is nothing you could have said anyway. The decision would have been the same.’ The appellant had a right to be heard, and he was denied that right. The District Court decision was made unfairly. It was not a minor error of procedure. It was a significant error resulting in a substantial miscarriage of justice. For that reason alone the appellant was done a substantial injustice, which warrants the appeal being upheld.

10. Before leaving this issue of miscarriage of justice there are three matters that, though not directly raised at the hearing of the appeal, require comment.

11. First, I query whether it is correct to suggest, as Mr Meten submitted, that the appellant has no case at all worthy of consideration. The National Court has on a number of occasions upheld appeals against orders for possession of property made by the District Court under Section 6 of the Summary Ejectment Act on the ground of failure to recognise the appellant’s equitable interest in the property (see the leading Supreme...