Leong Apelis on behalf of Himself & Six Ors v Paul Tevlone and Telikom PNG Limited (2009) N3896

• Jurisdiction: Papua New Guinea
• Judge: Gavara—Nanu J
• Judgment Date: 17 July 2009
• Court: National Court
• Citation: (2009) N3896
• Docket Number: CIA No. 75 OF 2009
• Year: 2009
• Judgement Number: N3896

Full Title: CIA No. 75 OF 2009; Leong Apelis on behalf of Himself & Six Ors v Paul Tevlone and Telikom PNG Limited (2009) N3896

National Court: Gavara—Nanu J

Judgment Delivered: 17 July 2009

N3896

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 75 OF 2009

BETWEEN:

LEONG APELIS on Behalf of Himself & Six Ors

Appellants

AND:

PAUL TEVLONE

First Respondent

AND:

TELIKOM PNG LIMITED

Second Respondent

Waigani: Gavara–Nanu J.

2009: 16 & 17 July

PRACTICE AND PROCEDURE – Appeal – District Courts Act, Chapter No. 40; s. 227 – Filing of entry of appeal within 40 days after the institution of the appeal– Effect of filing entry of appeal – Automatic stay of the enforcement of the orders appealed against.

Cases cited:

Lucy Ande –v- Anson Isingi (2001) N2206

Rabaul Shipping Limited –v- Rita Ruru (2002) N2022

Sangam Mote –v- Alkan Tololo [1996] PNGLR 404

Sunga Andrew v. Helen John (2001) N2031

William Moses v. Otto Benal Magiten (2001) N2023

Counsels:

B. Nouairi, for Respondent/Appellants

N. Asimba, for Defendants

1. GAVARA–NANU J: The appellants who are employees of Telikom PNG Limited (“the second respondent”) are applying to stay the orders given by the Port Moresby District Court on 8 May, 2009, which set aside the interim restraining orders obtained by the appellants to prevent the respondents from evicting them from their respective institutional accommodations.

2. The restraining orders were taken out by the appellants after they were terminated from their employment with the second respondent, for allegedly inciting members of the Telikom Engineering Association to go on strike. When the restraining orders were taken out, no substantive action was instituted against the respondents by the appellants. I see nothing improper or irregular in this, because the appellants could have been evicted from their institutional accommodations following their termination. In my view, the situation the appellants were in warranted them obtaining the restraining orders before instituting the substantive action.

3. The appellants were terminated on 4 December, 2008. On 2 January, 2009, they obtained the restraining orders. On 22 January, 2009, they filed a Complaint and an Information against their termination pursuant to s. 63 (1) of the Industrial Relations Act, Chapter No. 174. This was the substantive action.

4. As noted, on 8 May, 2009, the restraining orders obtained by the appellants were set aside by the Port Moresby District Court. On the same day, the appellants filed a notice of appeal and the entry of appeal and on 18 May, 2009, they filed the Recognizance on appeal.

5. The application to stay is made pursuant to a notice of motion filed on 18 May, 2009. The appellants in making this application, rely on O 13 r 21 of the National Court Rules, alternatively, on the effect of s. 227 of the District Courts Act, Chapter No. 40, which is that, the entry of appeal filed by the appellants automatically stayed the enforcement of the orders appealed against.

6. In respect of the alternative remedy under s. 227 of the District Courts Act, the section requires an appellant to enter an appeal for hearing within 40 days after the appeal is instituted. If the appeal is not entered within 40 days of the appeal being instituted or the notice of appeal being filed, a Court or a Magistrate may enforce the conviction, order or adjudication, as if it had not been appealed against.

7. The appellants elected to press the alternative remedy under s. 227 of the District Courts Act and argued that the entry of appeal they filed automatically stayed the enforcement of the orders they are appealing against. For this contention, reliance was placed on the decision by Injia, J (as he then was) in Sangam Mote –v- Alkan Tololo [1996] PNGLR 404. His Honour in that case held that if an entry of appeal is filed within 40 days from the filing of a notice of appeal as required under s. 227 of the District Courts Act, the entry of appeal will automatically stay the enforcement of an order appealed against. In Sunga Andrew v. Helen John (2001) N2031, Kandakasi J, adopted the same view. However in Lucy Ande –v- Anson Isingi (2001) N2206, Jalina J, adopted a different view. In that case, his Honour held that whether an entry of appeal for hearing is filed within the time stipulated under s. 227 of the District Courts Act, or not, an appellant still has to apply for stay of the enforcement of the orders appealed against. His Honour said a stay may be sought under O 13 r 11 of the National Court Rules or O 13 r 21 of the National Court Rules.

8. In my respectful view, the plain reading of s. 227 of the District Courts Act, is that, if an entry of appeal is filed within 40 days of filing or instituting an appeal, the entry of appeal would automatically operate to stay the enforcement of the order appealed against, and a Court or a Magistrate would by operation of law (s. 227) be automatically prohibited or stopped from enforcing the order appealed against. However, such stay would in my view depend further on whether the appeal is...