Samson Dacany v Noah Taia of The National Fisheries Authority (2002) N2316

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 December 2002
• Court: National Court
• Citation: (2002) N2316
• Year: 2002
• Judgement Number: N2316

Full Title: Samson Dacany v Noah Taia of The National Fisheries Authority (2002) N2316

National Court: Kandakasi J

Judgment Delivered: 13 December 2002

1 APPEALS—PRACTICE AND PROCEDURE—Appeal from District Court—Application to amend notice of appeal—Power to allow amendments governed by relevant provisions of the District Courts Act—Amendments can only be allowed to statement of grounds of appeal—No new ground of appeal can be added under disguise of amendment if application is made outside the time limits for appeals unless the applicant is able to show that he would have been granted an extension of time to raise the new grounds of appeal—No case made out for case of possible extension of time to lodge appeal out of time—Whether s155(3)(a) of the Constitution applies?—S155(3) of the Constitution does not apply where there is particular relief or procedure prescribed in an act of Parliament applies—District Courts Act s227, s221, s231, s232.

2 APPEALS—Application to substitute appellant—Appellant dying after having lodged an appeal—Party seeking to be substituted is a person aggrieved and affected by decision of the District Court—Applicant failed to lodge appeal within time or at all—Right of appeal not restricted to parties to proceedings before the District Court but to a person aggrieved by a decision of the District Court—Application for a substitution seen in effect as an application to appeal out of time—Depending on another to appeal and reverse decision of the District Court not good reason for failure to lodge an appeal within time—No good grounds advanced for failure to lodge own appeal—Application dismissed—District Courts Act s219—National Court Rules O5 r10(1), r11(1) and r11(2) r12(1)) and O1 r7.

3 Moses v Magiten (2000) N2023, Rabaul Shipping Ltd v Ruru (2000) N2022, The State v The Senior Stipendiary Magistrate of the NCD Court at Port Moresby; Ex Parte The Acting Public Prosecutor [1976] PNGLR 344, Kiau Nikints v Moki Rumints [1990] PNGLR 123, ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577, Aviat Social and Sporting Club (Lae) Inc v Anthony Meehan Ltd (2001) N2071, PNGBC v Wilbar Tiepe Pokati (1992) N1097, Rolf Schubert v The State [1979] PNGLR 66, Sunga Andrew v Helen John (2001) N2031, Investment Promotion Authority v Niugini Scrap Corporation Pty Ltd (2001) N2104, Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145, R v Walker [1915] St R Qd 115; [1915] QWN 18, R v Everitt [1952] VLR 521, Hodgson v Lakeman [1943] 1 KB 15, Avia Aihi v The State (No 1) [1981] PNGLR 81 and R v Rowe [1955] 1 QB 573 referred to

___________________________

N2316

PAPUA NEW GUINEA

[In the National Court Justice]

C I A. NO. 51 OF 2002

BETWEEN:

SAMSON DACANY

Appellant

AND:

NOAH TAIA of NATIONAL FISHERIES AUTHORITY

Respondent

WAIGANI: KANDAKASI, J.

2002: 16th October

20th November

13th December

APPEALS – PRACTICE & PROCEDURE – Appeal from District Court – Application to amend notice of appeal - Power to allow amendments governed by relevant provisions of the District Court Act – Amendments can only be allowed to statement of grounds of appeal – No new ground of appeal can be added under disguise of amendment if application is made outside the time limits for appeals unless the applicant is able to show that he would have been granted an extension of time to raise the new grounds of appeal - No case made out for case of possible extension of time to lodge appeal out of time – Whether s. 155 (3) (a) of the Constitution applies? – Section 155 (3) of the Constitution does not apply where there is particular relief or procedure prescribed in an act of Parliament applies – District Courts Act ss. 227, 221, 231, 232.

APPEALS – Application to substitute appellant – Appellant dying after having lodged an appeal – Party seeking to be substituted is a person aggrieved and affected by decision of the District Court – Applicant failed to lodge appeal within time or at all - Right of appeal not restricted to parties to proceedings before the District Court but to a person aggrieved by a decision of the District Court – Application for a substitution seen in effect as an application to appeal out of time – Depending on another to appeal and reverse decision of the District Court not good reason for failure to lodge an appeal within time – No good grounds advanced for failure to lodge own appeal - Application dismissed – District Courts Act ss.219 – National Court Rules O.5 r.10 (1), 11 (1) and (2) 12 (1)) and O.1 r.7.

Papua New Guinea Cases Cited:

William Moses vs. Otto Benal Megaten (Unreported judgement delivered 01/12/00) N2023. Rabaul Shipping Limited vs. Rita Rura (Unreported judgement delivered 08/12/00) N2022. The Senior Stipendiary Magistrate Exparte vs. The Acting Public Prosecutor [1976] PNGLR 344.

Kiau Nekints vs. Moki Rumints [1990] PNGLR 123.

ABC Co. Transport Pty Ltd vs. Timothy Skaip (Unreported Judgement) N1577.

Aviat Social & Sporting Club (Lae) Inc vs. Anthony Meehan Ltd (Unreported judgement delivered 28/03/01) N2071.

Papua New Guinea Banking Corporation vs. Wilbar Tiepe Pokati (Unreported judgement delivered on 30/06/92) N1097.

Schubert vs. The State [1979] PNGLR 66.

Sunga Andrew vs. Helen John (Unreported judgement delivered 19/01/01) N2031.

Investment Promotion Authority vs. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104.

Provincial Government of North Solomons vs. Pacific Architecture Pty Ltd [1992] PNGLR 145.

Overseas Cases Cited:

R. vs. Walker [1915] st R Qd 115; [1915] QWN 18.

R vs. Everitt [1952] VLR 521.

Hodgson vs. Lakeman [1943] 1 KB 15.

Regina vs. Rowe [1955] 1 QB 573.

Text and other Publications Cited:

D.R.C. Chamers, D.Weibrot, S. Injia, W.J. Andrew and D.Nicol, Criminal Law and Practice of Papua New Guinea 3rd Edn. Lawbook Company, Sydney 2001.

A. Kandakasi “The Power of Amendment in the District Courts Act Under Section 32 of the District Courts Act (Chp.40)”, Melanesian Law Journal Vol. 16, 1988, p.115.

Counsel:

Merrs. B. Andrews & G. Sheppard for the Applicant/Appellant

Mrs. J. Agaru for the Respondent

13th December 2002

KANDAKASI, J: Two applications respectively filed on 6th September 2002 and 5th November 2002 are before me. The first is for or by the appellant while the second is by a third party Sepik Seafood Products Limited (SSPL). The first seeks to amend the notice of appeal to add in effect new grounds of appeal and the second is for the appointment of SSPL as the representative and substitute for the appellant who has since died.

The first application was by submissions filed by the parties at my direction issued on 16th October 2002, when the matter was adjourned to 4th November 2002, after having heard oral arguments of counsel. The second application was argued before me with written submissions on 20th November 2002. I then reserved judgement to consider the submissions. This is the judgement. I will deal first with the application to amend as it is first in time and then I will deal with the second application.

Arguments

It is argued for the applicants in relation to the application to amend that, an appellant is entitled to apply and this Court is obliged to allow amendments to notices of appeals. In so arguing they rely on s. 232 of the District Courts Act 1963 (DCA) and s.155 (3) (a) of the Constitution. Section 155 (3) (a) of the Constitution is relied upon to advance an argument that a person aggrieved by a decision is entitled to have the decision review even outside the time limits imposed by the DCA once a grave error leading to the decision is highlighted.

As for the application for appointment as representative and substitution of the appellant following his death, the argument is that the applicant is affected by the decision appealed against and it does have a financial interest in the outcome of the appeal. It chose not to appeal against the decision of the District Court because of the appeal by the appellant who has since died. Unless, its application is granted and it is allowed to proceed with the appeal as if it were its own, it will suffer prejudice, loss and damage and ultimately result in serious injustice.

The respondent to the appeal and the two applications is opposing both applications. It argues neither of the applications can succeed because the appeal is not properly on...