Marshall v Bray [2008] PGDC 43; DC713 (3 March 2008)

DC713

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 29 of 2007

BETWEEN

ROBERT MARSHALL
Complainant

AND

JOHN BRAY
Defendant

Goroka: M Gauli, PM
2008: March 03

CIVIL - Claims damages for swearing and assault – Exparte proceedings – Defendants lawyer walked out of the Court room after Court ruled to proceed the hearing of the evidence for the complainant – Defendant out of the Country – Defendant failed to produce copies of his airline tickets when he first abandoned the earlier trial.

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendant - Mr. D. Umba of Umba Lawyers

03 March 2008

EXPARTE JUDGMENT

M Gauli, PM: In this cause of action the complainant Robert Marshall sued the defendant John Bray in damages for assaulting the complainant. It is alleged that on 16 February 2007 in Goroka town, the complainant while in the process f serving the National Court document on the defendant, the defendant swore at and punched the complainant. And the complainant filed this action and claims K1, 000.00 in general damages and K9, 000.00 in exemplary damages.

2. Exparte Proceeding

This proceedings were filed in Court on 12 July 2007. After several adjournments, the proceedings was fixed for trial on 13 December 2007 at 9:30 am. Defendant was represented by Mr. D. Umba of Umba Lawyers. The trial was abandoned due to the defendant being away in Australia. The proceedings were adjourned to 04 February 2008 for trial with a direction that the defendant was to produce the copies of his airline travel tickets. On 04 February there was a legal year opening and the hearing was then deferred to 03 March 2008. When the matter came for trial that day, Mr. D. Umba, the defendants counsel asked for adjournment as the defendant has travelled to Brisbane, Australia on 23 February 2008 and will be returning on 23 of March 208. The counsel produced the copy of the E-Ticket No. 656 2100555987. Mr. R. Marshall objected to the adjournment as he claims that he saw the defendant in Goroka town on Wednesday or Thursday of last week, meaning that the defendant did not travel out of Goroka on 23 February 2008.

3. I inquired with the defendant’s counsel if he has in his possession the copy of the defendant’s airline tickets which the Court has requested previously on the 13 December 2007. The counsel’s response was negative. I then informed both parties that the Court will proceed to hear the complainant’s evidence first before I consider to adjourn the case for the defendants evidence to be called. Mr. D. Umba then said he will leave the Court as he does not have any instructions from his client. He then asked for the date the case may be adjourned to. I informed him once again that adjournment will be considered after the complainant’s evidence is presented. Mr. D. Umba got up and left the Court room in haste.

4. The Court has jurisdiction to proceed exparte under Section 143 of the District Courts Act where defendant does not appear in Court. In the present situation, the defendants lawyer was present in Court though the defendant is alleged to have travelled overseas. Thus defendant was in deed present in Court. However when this Court ruled that the Court will proceed to hear the evidence for the complainant, the defendant’s lawyer left the Court room. The moment the counsel left the Court room, it is deemed that the defendant was not present in Court despite having the knowledge of the hearing. The complainant was ready for the trial with all his witnesses present. The defendant had engaged the services of the Umba Lawyers since 30 August 2007. I could not understand why the counsel was not able to obtain instructions from his client. The trial was abandoned on the 13th December 2007 at the request of the defendant. Through his legal representative the defendant was directed by the Court to produce the copies of his airline tickets for his trips overseas. Defendant failed to comply to that direction. Taking into account of the all these circumstances I proceeded exparte under Section 143 of the District Courts Act when the defendants legal representative decide not to be present during presentation of the Complainant’s evidence.

5. Evidence for the Complainant

The Complainant Robert Marshall and his three witnesses namely John Kusunan, Peter Wano and Aesha Marshall all gave sworn evidence. All the witnesses are the eye witnesses to the incident of 16 February 2007 as they all claimed to be with the complainant at the time. They all relied on their affidavit evidence filed.

6. The complainant Robert Marshall deposed in his Affidavit sworn on 04 July and filed on 12 July 2007 (EXHIBIT ‘A’) that on the 16 of February 2007 at about 2:20 pm he was outside the ANZ bank in Goroka when he saw the defendant Mr. Bray exiting the said bank and walking towards his car. Mr. R. Marshall approached the defendant and said to him (defendant) that he is serving on him the National Court documents, regarding the proceedings between the two of them which is before the National Court. The defendant then swore at Mr. R. Marshall saying: “Robert fuck off, just fuck, fuck off”. At the same time the defendant swung his closed right fist and punched Mr. R. Marshall three times to the left side of his face. Mr. Marshall managed to place those documents on the driver’s seat of the defendant’s vehicle. Defendant picked up those documents, he glanced through them and he threw those documents out into the street. Mr. R. Marshall suffered a scratch to his left eye and a swelling face. Mr. R. Marshall was so embarrassed as he was assaulted in the presence of many people out in the street.

7. The witness John Kusunan relied on his affidavit sworn on 30 August 2007 (EXHIBIT ‘C’), witness Peter Wano relied on his affidavit marked EXHIBIT ‘D’ and witness Mrs. Aesha Marshall relied on her affidavits marked EXHIBIT ‘E’ and ‘F. They all gave the same evidence as that of Mr. R. Marshall. I do not intend to restate their evidence.

8. Having heard an considered the evidence for and on behalf of the complainant as presented, I am satisfied on the balance of probabilities that defendant Mr. Bray did swore and assaulted Mr. Marshall in the presence of other people including his wife Mrs. Aesha Marshall. He suffered humiliation and embarrassment as this incident took place out in the street and in the presence of many onlookers. The defendant Mr. Bray is a lawyer by profession who operates his business in Goroka town as Aitsi Bray Lawyers. The conduct of the defendant at the time, as a legal officer, is much to be desired off. It was in my humble view an improper conduct. I consider that the defendant is liable for the damages.

9. As to the quantum of the damages I award a sum of K1, 000.00 for general damages for swearing and assault on Mr. R. Marshall. The Complainant claim for exemplary damages. Defendant being a lawyer by profession and his conduct at the material time did not exhibit the profession that he holds. He must be penalised for such a conduct in the eyes of the public. I award K2, 000.00 for exemplary damage. And I enter a total judgment in the sum of K3, 000.00 payable within 30 days from the date of this order.

For the Complainant - In Person
For the Defendant - No Appearance