In The Matter of an Application by Linah Edward (2005) N2804

• Jurisdiction: Papua New Guinea
• Judge: Appellant not to leave country
• Judgment Date: 11 February 2005
• Citation: (2005) N2804
• Docket Number: OS No 40 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2804

Full Title: OS No 40 of 2005; In The Matter of an Application by Linah Edward (2005) N2804

National Court: Cannings J

Judgment Delivered: 11 February 2005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 40 OF 2005

IN THE MATTER OF AN APPLICATION

BY LINAH EDWARD

KIMBE : CANNINGS J

11 FEBRUARY 2005

RULING ON APPLICATION

Practice and procedure – application for extension of time to appeal to National Court against decision of District Court – application to stay operation of District Court order – applicant aggrieved by order of District Court to award K3,000.00 damages against her for defamation – put matter in hands of lawyer – lawyer failed to institute appeal – time limit of one month for instituting appeal – time limit of 40 days for entering appeal – District Courts Act, Part XI – summary of principles governing setting down of appeals to National Court – distinction between institution of appeal and entry of appeal – requirements for institution of appeal – effect of instituting and entering appeal on operation of District Court orders – circumstances in which District Court orders are automatically stayed – National Court’s discretion to dispense with conditions precedent to the right of appeal or to extend the time for compliance with a condition precedent – matters relevant to exercise of discretion – application of relevant considerations – whether negligence of lawyer a sufficient reason to extend time limit for appealing – whether extension of time for compliance with conditions precedent automatically stays operation of District Court orders – whether separate application necessary – identification of considerations relevant to discretion whether to grant stay – application of considerations – order made by National Court – conditions imposed.

Cases cited

Anton Angra and Oimbo Security Services Pty Ltd v Tony Ina [1996] PNGLR 303

Bougainville Copper Ltd v Liu [1978] PNGLR 221

Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security (2000) SC646

Kiau Nikints v Moki Rimints [1990] PNGLR 123

Kimbe Bakery Pty Ltd v Ben Jalatang (1993) N1274

Leo Duque v Avia Andrew Paru [1997] PNGLR 378

Lucy Ande v Anson Isingi (2001) N2206

Motor Vehicles Insurance Ltd v Martha Kuma (2000) SC650

New Zealand Insurance Company Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Sangam Mote v Alkan Tololo [1996] PNGLR 404

SCR No 1 of 1992; Re Peter Dickson Donigi v Base Resources Ltd [1992]
PNGLR 110

Sunga Andrew v Helen John (2001) N2031

William Moses v Otto Benal Magiten (2000) N2023

Yap v T S Tan [1987] PNGLR 227

L Edward, the applicant, in person

CANNINGS J:

INTRODUCTION

This is an application to extend the time for appealing against an order of the District Court and for an order staying the operation of that order.

BACKGROUND

On 1 October 2004 the District Court at Kimbe ordered the applicant to pay K3,000.00 damages to Elizabeth Titoam in proceedings commenced by her, as complainant, against the applicant for defamation of character. The applicant was given three months to pay. She has not, to date, paid anything to the complainant. Both the applicant and the complainant are schoolteachers.

The applicant consulted a lawyer in Kimbe, Epita T T Paisat, and paid some money to him for court fees and legal fees. On 25 October 2004 she paid K200.00, on 12 November 2004, K400.00, and on 25 November 2004, K600.00. In December 2004 she went home to Kavieng for school holidays, thinking that the appeal had been instituted.

An appeal from the District Court to the National Court must normally be filed within one month after the District Court decision. The appeal should have been filed by 1 November 2004. Nothing, however, has been filed.

In late January 2005, on returning to Kimbe, the applicant was served with an oral examination summons to appear in the District Court and explain why she had not paid up.

She advised the Clerk of the District Court that she had filed a notice of appeal but soon discovered that her lawyer had not filed any appeal documents.

She went back to see her lawyer to find out what the problem was. He does not have a current practising certificate but apparently he helped her draft an originating summons for the National Court, seeking an extension of time to appeal against the order of 1 October 2004.

On 1 February 2005 the originating summons was filed and on 10 February 2005 an affidavit in support was filed.

APPLICANT’S SUBMISSIONS

The applicant’s reason for seeking leave to file an appeal out of time is that she put the case in the hands of her lawyer and she did that within one month after the District Court decision. She trusted him to do the right thing. She should not be penalised because of his apparent slackness.

ABSENCE OF COMPLAINANT

The complainant in the District Court, Ms Toitam, was not present and I could not be satisfied that she had been given notice of the proceedings. The court must normally be satisfied that a person who may be affected by an application has been given notice of the matter, either by stating the time and place of the hearing in the originating summons or by filing and serving a notice of motion under Order 4, Division 5 (motions) of the National Court Rules. In this case the originating summons did not state the time and place of the hearing of the application and there was no notice of motion.

However Section 231 of the District Courts Act allows applications such as this to be heard ex parte.

Section 231 states:

The National Court may—

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and

(b) on application made ex parte by the party appealing—extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

I am satisfied that by virtue of Section 231(b) I was able to hear this application ex parte, ie in the absence of the person in whose favour the District Court decision was made.

RELEVANT LAW

Part XI

Appeals from the District Court to the National Court are governed by Part XI (appeals from decisions of district courts) of the District Courts Act. It consists of Sections 219 to 246. Those provisions fall into three broad categories. They:

· govern how an appeal is set down and the effect of instituting an appeal (Sections 219-228, 231, 237, 238); and

· govern the procedure for hearing an appeal and the powers of the National Court (Sections 229, 230, 232, 239-244); and

· state what happens after the appeal is decided (Sections 233-236).

As the present case concerns the proposed setting down of an appeal I will summarise the main principles arising from the first category of provisions.

Who can appeal?

A “person aggrieved” by a conviction, order or adjudication of the District Court has a right of appeal under Section 219(1), provided the appeal is prosecuted in accordance with Part XI.

What has to be done and when does it have to be done?

An appeal must be instituted within one month after the day when the District Court decision is pronounced. The person appealing, called ‘the appellant’, must do four things within that one-month period:

· lodge a notice of appeal with the Clerk of the District Court at the place where the decision was made; and

· serve a copy of the notice of appeal on the respondent(s) to the appeal, in accordance with Section 238(1); and

· serve a copy on the Registrar of the National Court; and

· enter into a recognisance (ie a promise) or make a payment into court.

(District Courts Act, Sections 220-222.)

Notice of appeal

The notice of appeal must be in writing and state the nature of the grounds of appeal (Section 221(1)).

Recognisance or payment into court

The requirement to enter into a recognisance or make a payment into court is imposed by Section 222(1), which states:

Subject to Subsection (2), within one month after the day when the decision is pronounced an appellant shall enter into a recognizance with a surety before a Magistrate in such sum as the Magistrate thinks fit, conditioned—

(a) to prosecute the appeal; and

(b) to abide the order of the National Court on the appeal; and

(c) to pay such costs as are awarded by the National Court,

or the appellant may, instead of entering into a recognizance, deposit with the Clerk of the Court by which the conviction, order or adjudication was made such sums of money as a Magistrate in writing directs.

The appellant thus has a choice:

· enter into a recognisance and surety (ie she promises to prosecute the appeal, abide by the National Court decision and pay any costs awarded against her and if she breaks that promise she has to pay the amount of the surety fixed by the magistrate); or

· pay an amount directed by a magistrate to the Clerk of the District Court.

One of those two things must be done within one month after the District Court decision. If neither is done within one month, this can render the appeal incompetent, ie it is liable to be struck out by the National Court (Kimbe Bakery Pty Ltd v Ben Jalatang (1993) N1274, National Court, Sevua AJ (as he then was)).

What does the Clerk of the District Court have to do?

Immediately after the notice...