Credit Corporation v Tabua [1990] PGLawRp 667; [1990] PNGLR 166 (3 May 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 166 - Credit Corporation v Dr Tomkin Tabua 

[1990] PNGLR 166

N838

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CREDIT CORPORATION (PNG) PTY LTD

V

TABUA

Waigani

Hinchliffe J

2-3 May 1990

INFERIOR COURTS - District Courts - Record of proceedings - “True copy” of to be sent to National Court with appeal - Requires legible copy - District Courts Act (Ch No 40), s 224(1).

APPEAL - Practice and procedure - National Court - Striking out for want of prosecution - Satisfactory explanation for delay - Failure to obtain legible copy of proceedings under appeal.

The District Courts Act (Ch No 40), s 224(1), provides that where a notice of appeal to the National Court is notified to the Clerk of the District Court he shall forward to the National Court “a true copy” of, inter alia, the depositions and reasons for making the order under appeal.

On an application to dismiss an appeal for want of prosecution,

Held

N1>(1)      For the purposes of s 224(1) of the District Courts Act (Ch No 40), a “true copy” of, inter alia, the depositions and reasons for making the order under appeal, means a true legible copy of the depositions, etc.

N1>(2)      In the circumstances, failure by the Clerk of the District Court, despite repeated requests, to provide a legible copy of the magistrate’s transcript or notes relating to the matter under appeal amounted to a satisfactory explanation for the delay in prosecuting the appeal sufficient to justify refusal of the application.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148, applied.

Cases Cited

Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55.

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148.

Application

This was an application seeking to dismiss an appeal from the District Court for want of prosecution.

Counsel

J Shepherd, for the applicant/respondent.

J Patterson, for the respondent/appellant.

Cur adv vult

3 May 1990

HINCHLIFFE J: This is an application by the respondent that the appeal be dismissed for want of prosecution.

According to the appellant’s lawyer the main problem has been with the District Court. That is in obtaining a typed copy of the magistrate’s notes. Unfortunately this reason arises regularly in the National Court and it seems from reading past cases that it has been a problem for many years.

I am of the view that it is most improper for the District Court to simply photocopy the magistrate’s notes and forward them to the National Court and then assume that it has complied with s 224(1)(b) and (d) of the District Courts Act (Ch No 40).

The said section provides:

N2>“224(1)         The Clerk of the Court ... decision of which is appealed against, immediately after notice of appeal is lodged with him, shall forward to the Registrar of the National Court a copy, certified by him to be a true copy:

(a)      of the conviction, order or adjudication; and

(b)      of the reasons given by the Court for the making of the conviction, order or adjudication, if any reasons were given at the time when the decision was pronounced; and

(c)      of the complaint; and

(d)      of the depositions; and

(e)      of all other proceedings before the Court relating to the conviction order or adjudication, ...”

More often than not the magistrate’s notes are illegible, and time and time again a judge will send them back to the magistrate for typing.

The lawyers before me have stated that the Act is silent as to whether the magistrate’s notes, reasons, depositions and so on, should be typed up or not. That may be so, but what is clear to me is that all the paper-work that is sent up to the National Court on appeal must be legible. If it is not, then an appeal cannot be conducted properly because the court will not be fully aware of what happened in the District Court hearing.

Therefore, I am of the view that when the Act says, for example, “a true copy of the depositions”, it means “a true legible copy of the depositions”. That of course means that if the magistrate’s notes, for example, are difficult to read, then they should be typed up immediately. I would in fact go one step further and suggest that all handwritten appeal material in the District Court should be typed up before it is forwarded to the National Court. By doing that, delay is not incurred and also it is far more professional and courteous. To forward to the National Court pages and pages of photo-copied scribble is nothing but an insult. The practice should cease. If typewritten material had been forwarded in the first place, this application may not have been necessary.

It seems that the handwritten depositions arrived at the National Court on 24 October 1989 but the appellant was not aware of that, and it is clear that it did not become aware until early March 1990 when, in fact, the respondent’s lawyer advised the appellant’s lawyers.

For some unknown reason there was a delay of almost one month before the request was made to the District Court for typewritten material. That material now will not be ready until sometime this month.

In his letter of 24 January 1990 to the Registrar of the National Court, Mr Patterson (lawyer for the appellant) wrote:

“We have not received the District Court transcripts. Perhaps you should confirm that the court has not received same, and if this is so, we suggest that you direct the Clerk of the District Court to prepare a transcript and have same forwarded to the National Court for speedy hearing of the matter.”

Apparently the Registrar or his Deputy did not reply to the letter. If a reply had been despatched Mr Patterson would have then learnt that the transcript had been on file for some three months.

Needless to say, the Registrar is not obliged to keep the appellant’s lawyer up to date. It is for the appellant’s lawyer to make his own enquiries and to check the court file. To that extent Mr Patterson erred. If he had checked the file at or about the end of October 1989, he could have requested typewritten notes, and it is possible the appeal could have been heard in about December last year, or February this year.

Even though the respondent has been co-operative with the appellant in agreeing to a number of adjournments because the appellant was not ready, I am not sure that that was good tactically. I would have thought that on 4 April, at least, when the appellant was not ready, the respondent should have made an application to dismiss for want of prosecution. It did not, it agreed to a further hearing date.

In 1981, the Supreme Court heard three appeals together relating to applications to dismiss for want of prosecution. They were Tenge Kai Ulo v Acting Public Prosecutor; Joe Kovea Malai v Acting Public Prosecutor; Acting Public Prosecutor v Andrew Lalaiva and Angelo Ume [1981] PNGLR 148. It was held that the Supreme Court had an inherent jurisdiction to dismiss appeals for want of prosecution where there is undue delay. What constitutes undue delay depends on the circumstances of each case, and that the onus is on the applicant to dismiss, to establish a prima facie case of delay and the onus then shifts to the respondent to the application to give a satisfactory explanation for the delay.

Kapi J (as he then was) (at 149) suggested a number of factors to be taken into account in determining whether there was undue delay or whether satisfactory explanation for the delay had been established. These were:

N2>(1)      Mechanics of producing appeal book, typing, compilation of appeal book and shortage of staff.

N2>(2)      Availability of reasons and transcript of evidence.

N2>(3)      No attempt by the appellant to get appeal ready for hearing.

In Burns Philp (New Guinea) Ltd v Maxine George [1983] PNGLR 55, it was held by the Supreme Court that:

N2>(1)      the power to dismiss for want of prosecution remains discretionary;

N2>(2)      the discretion is to be exercised having regard to all the circumstances including, inter alia;

(a)      the length of and reasons for delay on the appellant’s part;

(b)      the extent evidence likely to be adduced may lose cogency;

(c)      the availability of transcript; and

(d)      any negotiations between the parties.

Applying these principles then to the accepted facts of this application, I am satisfied that a prima facie case has been made out by the applicant for the appeal to be dismissed for want of prosecution on the basis of undue delay. The onus then shifts to the appellant to explain satisfactorily the reasons for the delay in setting down the appeal for hearing, that is, a hearing which in fact could proceed.

As I have stated, probably, if the appellant’s lawyer had been alert, an appeal could have been conducted in February. As it is, if this application failed the appeal would be heard in June. That is four months delay. Some might say that that delay is not out of the ordinary but it seems to me that clearly it is an unnecessary delay.

I am satisfied that there has been an attempt by the appellant’s lawyer to get the appeal ready but that attempt could have been made with far more energy and enthusiasm.

There is always trouble in obtaining a proper transcript and even though the magistrate received notice in early April 1990, it appears that the delay will be almost two months. He says there are problems with typing and that is a factor I must take note of. All the same, it is a dismal state of affairs that a Grade 5 magistrate in the country’s capital city, working in an extremely busy court, does not have a secretary to type for him. I am told also that at the Lae District Court, there is only one typist for about five magistrates. With that sort of back-up, I am surprised that some District Courts have not ground to a halt. We National Court judges often hear of the magistrates having lack of support.

At the end of the day, after considering the appellant’s situation and even though its lawyer has erred in many areas and has not put in a full effort, I am of the view that the explanation given for the delay is satisfactory, if only just so. I am satisfied though that the appellant should pay the respondent’s costs of this application.

I make the following orders:

N2>1.       Application dismissed.

N2>2.       Matter to go into the callover list on 15 May 1990 to be listed in the June sittings.

N2>3.       That all necessary documents be served by the appellant on the respondent’s lawyer at least seven days before the appeal date.

N2>4.       That the Clerk of the Court at the District Court, Port Moresby, comply with s 224 of the District Courts Act and file with the Registrar of the National Court by 28 May 1990, the handwritten notes of the magistrate and his reasons for decision and all depositions in typed form.

N2>5.       A copy of this order to be served on the said Clerk of the Court today.

N2>6.       The appellant to pay the respondent’s taxed costs of this application.

Orders accordingly

Lawyer for the applicant/respondent: K Y Kara.

Lawyers for the respondent/appellant: Henao, Cunningham & Priestly.