Willliam Moses v Otto Benal Magiten (2000) N2023

• Jurisdiction: Papua New Guinea
• Citation: (2000) N2023
• Date: 01 December 2000
• Court: National Court
• Year: 2000

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

National Court: Kandakasi J

Judgment Delivered: 1 December 2000

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 (Ch40), s220, s221, s226 and s227.

2 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 (Ch40), s220, s221, s226 and s227.

3 PRACTICE AND 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 (Ch40), s226 and s227—National Court Rules 1983, O10 r4 and r5

4 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 1989—Professional Conduct Rules 1989, s21.

5 General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd (1990] PNGLR 331, The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor (1976] PNGLR 344 at 349, Kiau Nikints v Moki Rumints (1990] PNGLR 123 and ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577 referred to

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Kandakasi J: This is an application seeking to dismiss the appeal for want of prosecution by notice of motion filed on 20 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 20 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 24 November 2000 around 8.40am at his place of work. He said he told Mr Habuka that the motion will be heard on 1 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 1 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 4 December 2000 as we have only received instructions from our client yesterday (30 November 2000).

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 699/00 Kimbe 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 30 November 2000. Clearly therefore, that could not have affected any preparation and appearance in court for this matter on the day set which was 1 December 2000, notice of which was given on 24 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...