ABCO Transport Pty Ltd v Timothy Sakaip

• Jurisdiction: Papua New Guinea
• Citation: (1997) N1577
• Date: 30 May 1997
• Court: National Court
• Year: 1997

National Court: Injia J

Judgment Delivered: 30 May 1997

1 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 (Ch40) Part XI (s219–s246)

2 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

3 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

4 Kiau Nikints v Moki Rumints [1990] PNGLR 123, Peter Rose v Yamu Samuel [1987] PNGLR 1, and Leo Duque v Avia Andrew Paru [1997] PNGLR 378 referred to

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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 (Ch40). 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 s230(f) of the District Courts Act (Ch40) 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 Nikints 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 (s219—s246) of the District Courts Act...