Willliam Moses v Otto Benal Magiten (2000) N2023

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 December 2000
• Court: National Court
• Citation: (2000) N2023
• Year: 2000
• Judgement Number: N2023

Full Title: Willliam Moses v Otto Benal Magiten (2000) N2023

National Court: Kandakasi J

Judgment Delivered: 1 December 2000

N2023

PAPUA NEW GUINEA

[In the National Court Justice]

APP CIA NO 190 of 1999

BETWEEN:

WILLIAM MOSES

Appellant

AND:

OTTO BENAL MAGITEN

Respondent

LAE: KANDAKASI,J.

2000: December 1

INFERIOR COURTS — Appeals — District Courts — Appeal from — Lodgment of Appeal with different Court — Failure to serve within time — Filing Notice of Entry of Appeal when appeal not ready — Abuse of process — Failure to comply with District Courts Act fatal — District Courts Act (Ch. No. 40), ss. 220, 221, 226 & 227.

APPEALS — Practice & Procedure — Appeal to National Court — Appeal from District Court — Lodgment of Appeal with different Court — Failure to serve within time — Filing Notice of Entry of Appeal when appeal not ready — Abuse of process — District Courts Act (Ch. No. 40), ss. 220, 221, 226 & 227.

PRACTICE & PROCEDURE — National Court — Appeals to — Want of prosecution — motion to dismiss served — No appearance for or on behalf of Appellant — Ex parte hearing — No explanation for delay — Appeal dismissed — District Courts Act (Ch. No. 40), ss. 226 & 227 — National Court Rules 1983, Order 10 Rule 4 & 5

LAWYERS — Professional conduct — improper conduct — Writing to Court to the exclusion of other party on day of hearing for adjournment — Failing to have an office sufficiently equipped and manned — Breach of Professional Conduct Rules — Professional Conduct Rules — s. 21.

Cases cited:

The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349

Kiau Nekints v. Moki Rumints [1990] PNGLR 123

ABCO Transport Pty Ltd v. Timothy Sakaip ( unreported but numbered judgement of Injia J) N1577

Counsels

Applicant/Respondent in person.

No appearance for Respondent/Appellant

1st December 2000

KANDAKASI,J: This is an application seeking to dismiss the appeal for want of prosecution by notice of motion filed on 20th of November 2000. It is supported by an affidavit sworn by the Applicant/Respondent (hereinafter referred to as "Respondent") on the 8th and also filed on the 20th of November 2000.

When the matter was called for hearing, no appearance was made for or on behalf of the Respondent/Appellant (hereinafter referred to as " the Appellant"). Upon the Court's inquiry, the Respondent informed the Court that the notice of motion and the affidavit in support were served on the Appellant's lawyer, Mr. Richter Habuka on the 24th of November 2000 around 8:40am at his place of work. He said he told Mr. Habuka that the motion will be heard on the 1st of December 2000 and Mr. Habuka told him that, that was fine with him. He was therefore, most surprised that neither Mr. Habuka nor his client was present. At that stage my associate handed to me a facsimile letter from Habuka lawyers addressed to the Assistant Registrar of the National Court dated the 1st of December 2000. Set out below, are the main parts of the letter:

We act for the Respondent William Moses regarding the above matter and request an adjournment of the motion to Monday 4th December 2000 as we have only received instructions from our client yesterday (30/11/00).

Our client resides in Bialla about 4 hours drive from Kimbe and we were unable to contact him until Tuesday this week.

We also have another matter in Lae (OS 699/00Kimbe soccer Association matter) set for Monday and intend to deal with both matters then.

Yours faithfully

Richter Habuka

I dealt with the matter of OS 699/00 Kimbe soccer Association on an interim basis at about 5:30pm on the 30th of November 2000. Clearly therefore, that could not have affected any preparation and appearance in court for this matter on the day set which was 1st December 2000, notice of which was given on the 24th of November 2000.

The Court read out the letter and asked the Respondent to go to the Registrar of the National Court and telephone Mr. Habuka and tell him that the motion is proceeding to a hearing at 1:30pm. The Court then adjourned the matter to 1:30pm.

At about 2:00pm when the case resumed, the Court was told that attempts were made to speak to Mr. Habuka without success. The telephone at Mr. Habuka's office kept on ringing without a response. The Court was told that, that was the problem the Respondent had experienced on numerous other occasions when trying to contact Mr. Habuka or his firm. The Respondent was then asked to take the stand and give evidence regarding the service of his motion and supporting affidavit and his conversations with Mr. Habuka from the date of the service of those documents to date.

On oath the Respondent stated that following a failure on the part of the Appellant to prosecute his appeal promptly after filing it on the 15th of June 2000, he conducted a search of the court file and found that no further action was taken. He therefore took out the notice of motion and had it filed with his supporting affidavit. Upon receipt of the sealed copies of the notice of motion and the supporting affidavit, he turned up at Hubaka Lawyers office twice only to find it closed. On the third and final attempt on the 24th of November 2000, he went to Mr. Richter Habuka's place of business and hand delivered copies of the notice of motion and affidavit in support. That was about 8:40am. At that time he told Mr. Habuka that the motion was set for hearing on the 1st of December 2000 and that he would proceed with the hearing on that date. He also asked if it was necessary for him to serve the motion and affidavit in support on his (Mr. Habuka's) client and the Respondent was told that, that was not necessary has he was still acting for the Appellant and that he will let him know. The Respondent then restated the unsuccessful attempts to speak to Mr. Habuka after the Court adjourned the matter in the morning.

The Court asked, whether the Respondent was prepared to agree to an adjournment of his motion to the 4th of December 2000 per Habuka Lawyers' letter of the 1st of December 2000. He said he was not agreeing to an adjournment, as that will cost him a lot of inconvenience in terms of accommodation and food after having traveled from Kimbe to attend to the matter. He was forced to travel, as there was no indication from Mr. Habuka that he will not be attending court today or that he would be seeking an adjournment. He stated that he could not find a place to stay in Lae as he has no extra money to pay for accommodation, food and transport to and from Madang or Kimbe for that matter. He also said, him not having friends or relatives in Lae with whom he could stay awaiting the hearing of his application complicated his situation.

Order 4 Rule 42 of the National Court Rules 1983, requires service of notices of motions, three clear days before the date set for hearing. In the present case, the notice of motion and supporting affidavit were served on the 24th of November 2000. That was 6 clear days before the date set for a hearing of the motion. The Respondent therefore, meet the minimum days required for service and three more days beyond the required three clear days.

Before proceeding any further, may I say that, I consider it improper conduct for a lawyer to hold himself out has a practicing lawyer without having any fixed, working and reasonably manned office and or telephone and facsimile numbers to enable their clients, other lawyers and other persons to contact them without difficulty. Lawyers should be slow to accepting and acting on instructions if they do not have such minimum facilities and or are not able to meet such minimum requirements to assist in their respective practices. Indeed section 21 (2) and (3) of the Professional Conduct Rules provide that:

(2) A lawyer shall conduct his...