Biggs v Bart; Gesch v Bart [1975] PGLawRp 489; [1975] PNGLR 431 (6 November 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 431 - Biggs v Bart; Gesch v Bart 

[1975] PNGLR 431

N15

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRIGGS

V

BART

GESCH

V

BART

Wewak

Edmunds J

6 November 1975

INFERIOR COURTS - Local Court - Jurisdiction - Validity of orders - Order for damages made in favour of witness on charge of negligent driving - Order invalid.

APPEALS - Inferior Courts - Local Courts - Parties to appeal - Right of - “Person aggrieved” - Respondent to appeal should be party to proceedings - Magistrate not proper respondent - No power to substitute respondent - Local Courts Act 1963, s. 43 (1)[dcxxxviii]¹.

WORDS AND PHRASES - “Person aggrieved” - Right of appeal - Local Courts Act 1963, s. 43 (1)[dcxxxix]².

Upon the hearing of a charge of negligent driving against Gesch, in a Local Court before Bart, a Local Court Magistrate, Briggs, with whose motor vehicle Gesch had collided gave evidence of damage to his motor vehicle amounting to K369.78. The Magistrate made a finding of not guilty on the charge of negligent driving and further ordered Gesch to pay to Briggs the sum of K200.00 (K200.00 being the limit of the Court’s jurisdiction).

On appeals by both Gesch and Briggs, the Local Court Magistrate was named as respondent:

Held

N1>(1)      A “person aggrieved” by a decision of a Local Court on a matter, who may appeal to the National Court pursuant to s. 43 (1) of the Local Courts Act 1963 means one against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something: it is not sufficient that he has lost something which he would have obtained if another order was made.

N1>(2)      Briggs, who was a witness only in the proceedings, and for or against whom any order made was void, was not a “person aggrieved” within s. 43 (1) of the Local Courts Act, and his appeal should be dismissed.

N1>(3)      As a respondent in an appeal can only be a person who was a “party” in the proceedings in the Local Court, the appeal by Gesch being against the presiding Magistrate who was not a party was misconceived and should be dismissed.

N1>(4)      The National Court does not have power to substitute for a person cited as respondent in an appeal some other person.

Appeals

These were two appeals heard together arising out of a charge of negligent driving in a Local Court in which the Magistrate (the respondent named on the appeals) made an order of not guilty on the charge and ordered the defendant to pay to a witness the sum of K200.00 as damages for repair of a motor vehicle involved in a collison the subject of the charge.

6 November 1975

EDMUNDS J: On 23rd April, 1975, Constable Asnai Kumbari of Police Station, Yangoru, laid an information against the appellant Patrick Gesch charging him with on 22nd April, 1975, driving a motor vehicle upon a public street, to wit Sepik Highway, negligently. The information was on a form in use under the District Courts Act. Following the laying of the information, a summons on the form also in use under the District Courts Act was issued requiring Gesch to appear before the Local Court at Yangoru to answer the charge.

The hearing of the charge came before a Local Court Magistrate at Yangoru on 8th May, 1975. The Magistrate is the person named as respondent in both appeals.

The defendant pleaded not guilty to the charge. Evidence was given by the appellant Briggs who described a collision between a motor vehicle driven by him and a vehicle driven by the defendant. In the course of his evidence an account for the repair of his motor vehicle was admitted in evidence. The account was rendered by Ela Motors Limited and was for the sum of K369.78. Briggs was apparently cross-examined by the defendant who in turn gave evidence.

The Magistrate’s notes read “No guilty plea. Finding not guilty. Case discharged. Court orders $200.00 within two weeks — payment within two weeks.” Then followed the magistrate’s signature.

On 23rd September, 1975, the Registrar of the National Court gave notice to the appellants in both appeals and to the Clerk of the Local Court at Yangoru that the appeals would be heard at the sittings of the National Court at Wewak in November. Notice was not sent to the respondent in the appeals.

Following the Registrar’s advice as to the time and place of hearing the appeals the appellant Briggs wrote to the Registrar and informed him that he was now living in New Zealand and furnished a statutory declaration setting out in some detail the grounds of his appeal and comments on the evidence given on the hearing before the Magistrate. He also claimed that as the damage to his vehicle was K369.78 the Magistrate was not empowered to decide the case. He complained that the prosecutor did not call his witness or refer to the photographs he had taken of the scene of the accident between his vehicle and that of the other appellant Gesch.

The appellant Gesch did not appear when the appeals were called on for hearing before me at the sittings of the Court at Wewak. Section 43 (1) of the Local Courts Act provides that a person aggrieved by a decision of a Local Court on a matter may appeal to the Supreme Court. A person aggrieved has been defined as one against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. It is not sufficient that he has lost something which he would have obtained if another order was made.

A Local Court has two jurisdictions, a criminal jurisdiction and a civil jurisdiction. The law has provided for separate jurisdictions because different standards of proof have to be applied in the two jurisdictions. The test for liability on the part of a defendant who appears on complaint in the civil jurisdiction is whether on the balance of probabilities he was under an obligation to the complainant. In the criminal jurisdiction before any offence can be established against a defendant the complainant must prove the defendant’s liability beyond reasonable doubt. One of the reasons for the separation of the jurisdictions is because of the differing tests which must be applied.

In the present case it would appear the Magistrate did attempt to apply different standards because although he acquitted the defendant Gesch on the negligent driving charge he apparently found against him on a question of civil liability.

The appellant Briggs however, being only a witness, could not press his claim for damages or call witnesses in support of his claim, and the Magistrate by attempting to dispose of the civil claim was limited to the maximum award in a civil case which can be made under the Local Courts Act, namely K200.00. If the Magistrate’s actions were valid Briggs would have lost nearly half the amount of his claim —  assuming liability was established against Gesch.

Under no consideration was Briggs a party to the proceedings against Gesch and any award for or against him in the circumstances was quite invalidly made and is void and of no effect, and does not prevent Briggs commencing proceedings if he so desires to have his right of recovery against Gesch properly determined in a court of competent jurisdiction. Briggs, not being a party aggrieved as he was only a witness in the proceedings and no order affecting him having validly been made, has no right of appeal.

Although Gesch did not appear in support of his appeal there are matters arising from his appeal which are important. The first matter is that, like Briggs, he cited the Magistrate as the respondent in the appeal. Section 49 of the Local Courts Act indemnifies a Magistrate for acts done by him beyond the limits of his jurisdiction if when he did the act or made the order he believed in good faith he had jurisdiction to do the act or make the order. Quite apart from this, a respondent in an appeal can only be a person who was a party in the proceedings in the Local Court. The Magistrate was not a “party”. If Gesch wished to appeal the respondent to his appeal should have been Constable Asnai Kumbari. This Court does not have power to substitute for a person cited as respondent in an appeal some other person.

I have said the Magistrate’s award of K200.00 was invalidly made, void and of no effect.

I note that Gesch has appealed against the whole of the Magistrate’s decision. Gesch pleaded not guilty to the charge of negligent driving and the Magistrate acquitted him of the charge. Assuming Gesch now wanted a conviction recorded against him it would have to be on the grounds that the Magistrate’s decision was wrong in law and this is not apparent.

The formal orders I make are that the appeal Briggs v. Bart is dismissed as Briggs was not a party aggrieved and had no right of appeal. The appeal Gesch v. Bart is dismissed as being misconceived as Bart was not a party to the proceedings in the Local Court.

Appeals dismissed.

[dcxxxviii]Section 43 (1) of the Local Courts Act 1963 provides: “subject to the next succeeding subsections a person aggrieved by a decision of a Local Court on a matter may appeal to the National Court therefrom.”

[dcxxxix]Section 43 (1) of the Local Courts Act 1963 provides: “subject to the next succeeding subsections a person aggrieved by a decision of a Local Court on a matter may appeal to the National Court therefrom.”