Buku v Rikian [1982] PGNC 4; N335(M) (2 April 1982)

N335(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 353 OF 1981

BETWEEN:

GABRIEL BUKU
APPELLANT

AND:

MARGARET RIKIAN
RESPONDENT

Rabaul & Waigani: Bredmeyer J
10 February 1982; 2 April 1982

APPEAL - District Court has civil jurisdiction to hear claims arising out of custom. District Court has no power to mediate a dispute. Meaning of mediation in the Local Court.

COURTS - District Courts Act, 1963, s.29 Local Courts Act 1963, s.31.

REASONS FOR DECISION

BREDMEYER J: This is an appeal against an order of the Rabaul District Court made on 24 November 1981. The complainant, Margaret Rikian, claimed that the defendant, Gabriel Buku, had used her as his de facto wife for 28 weeks and sought K400 compensation "for personal injuries and damages to her reputation and character". The orders made by the learned magistrate were:

1. Defendant to pay K250 compensation to complainant.
   
2. If the complainant’s sister does not pay K40 to the defendant within two weeks from this date, then the defendant is only to pay K210 to complainant.
   
3. That complainant’s uncle is to return the watch to the defendant within two weeks from today.
   
4. Defendant is to pay K50 to the complainant per Government fortnight beginning on 11th December 1981.
   

Both parties appeared before the magistrate who purported to mediate the dispute. The complainant, who was a Tolai, alleged that she have lived with the defendant as his de facto wife and that the breakup of their relationship has given her a bad reputation and character. She said by her custom a person in her situation could sue for compensation for the use of her body, labour and services. She did not mention the matter of personal injuries referred to in the complaint.

The defendant, who comes from West New Britain, admitted the de facto relationship, that it had broken up and that there was no possibility of reconciliation, but denied that this had caused her bad reputation. The defendant alleged that he had given the complainant’s uncle K90 and had loaned her sister K40 which was not repaid and he said something about a watch although the magistrate’s note does not record exactly what was said.

The complainant claimed entitlement to K400 compensation under Tolai custom. I have no doubt that the District Court had jurisdiction to hear the case. By s.29 of the District Courts Act it has civil jurisdiction in addition to that expressly conferred by any statute "in all personal actions at law or equity" up to certain specified monetary limits. The word "law" as defined in s.3 of the Interpretation Act (Ch.2) "means a law of Papua New Guinea, and includes ... the underlying law...". By that section the underlying law is defined by reference to Schedule 2 of the Constitution which provides that custom "shall be applied and enforced, as part of the underlying law." Terms defined in s.3 of the Interpretation Act apply to all statutory provisions "unless some other meaning is clearly intended" (s.2 Interpretation Act).

I do not think that any contrary intention is contained in the phrase "all personal actions at law or equity" in s.29 of the District Courts Act. If the section had read "all personal actions at common law or equity" I would have concluded that a contrary intention was shown and that the District Court had jurisdiction only to try actions arising out of common law and equity. I therefore adhere to the view I expressed in Henry Aisi v Malaita Hoala^[1] unreported decision N316(M) of 2.7.1981, which was followed by Kearney, Dep. C.J. in Camilus Billy v Jubilee^[2] unreported decision N360(M) of 20.11.1981, that the District Court has jurisdiction to hear civil claims arising out of custom and within its monetary limits.

The learned magistrate said he mediated the dispute. His notes show that he heard allegations from the complainant and from the defendant and then gave his order. He may well have put some questions to each party which are not recorded. I follow the decision given by Kearney, Dep. C.J., in Camilus Billy v Jubilee, already cited, that the District Court has no power to mediate a dispute. A District Court Magistrate must hear and determine disputes in accordance with the District Courts Act. He must sit in open court, examine witnesses on oath, he must hear the complainant and his witnesses, followed by the defendant and his witnesses and may hear further witnesses for the complainant in reply (ss.65, 69, and 147). He must allow for examination and cross examination of witnesses and hear addresses from the parties; he must follow the "practice for the time being of the National Court of Justice upon the trial of an action at law" (s.148).

Although the District Court has no power to mediate, can the magistrate’s order in this case be upheld as a consent order? The answer is no because the respondent, who appeared before me in person, conceded that Mr. Buku did not consent to the magistrate’s order. The magistrate’s failure to hear the determine the action in accordance with the procedure laid down in the District Courts Act is an error of law which amounts to a substantial miscarriage of justice and causes me to allow the appeal.

That is sufficient to dispose of the appeal but to assist the learned trial magistrate, and magistrates generally, I desire to add a few other remarks. The first is on the subject of mediation. The Local Court has power to mediate under s.31 of the Local Courts Act; it may "mediate between the parties in a civil matter at any stage of or before the hearing with a view to the just and amicable settlement of the matter". The end product of mediation in the Local Court is a consent order. If one party will not consent to the order proposed, no order can be made, the mediation has failed, and the case should be heard and tried according to law by another magistrate. What the learned trial magistrate purported to do in the present case would not have amounted to mediation under s.31 of the Local Courts Act. He used a short-cut technique, avoiding the necessity of hearing sworn testimony tested by cross-examination, etc, to arrive at a non-consential order. That is not allowed by the District Courts Act or the Local Courts Act.

Secondly, paragraphs 2 and 3 of the magistrate’s order cannot stand. I appreciate and desire of the magistrate, which I have felt often myself, to resolve by his order all the matters in dispute between the parties, so that when the court case is over the parties will not continue to argue and possibly later litigate other issues.

The defendant’s "counterclaim", as it were, was that he had loaned K40 to the complainant’s sister and had loaned money and/or given a wrist watch to her uncle and now that he and the complainant had separated, he wanted the loan or loans repaid and the watch returned. But whilst I sympathise with the magistrate’s desire to resolve all matters in dispute, he had no power to made orders 2 and 3. Regarding order 2, and complainant was not legally responsible for her sister’s debt and therefore cannot be given a lesser award if her sister defaults in repayment of her loan. Regarding order 3, the uncle was not before the court - at least there is no note in the court record that he was before the court. No complaint had been issued against him, therefore on natural justice grounds, no order could be made against him unless, perhaps, if he happened to be present in court and expressly consented to such an order. The magistrate should not have penalised the complainant for her sister’s unpaid debt nor given an order against the uncle. The most the magistrate could have legitimately done in the action to assist the defendant recover his money and watch was to get an undertaking from the complainant and note it on the court record: "the complainant undertakes to ask her sister to repay K40 borrowed from the defendant and to ask her uncle to return the watch". Should the sister and uncle not respond to that request the defendant would have to sue them in separate actions.

Finally, the fourth order made - that the defendant was to pay K50 per fortnight to the complainant commencing on 11th December 1981 - was invalid. The order purported to be a maintenance order - a continuous order operating on the defendant for the fortnights and years ahead. That order should not have been made. The complainant did not claim continuous maintenance; she only claimed K400 compensation. Although the magistrate has power to amend a complainant, in general complainants are limited to the demand or cause of action stated in the complaint and summons (ss.143 and 144 of the District Court). Maintenance was not claimed and therefore should not have been entertained. Moreover she had no legal basis to claim maintenance.

She was not entitled to maintenance under the Deserted Wives and Children Act (Ch. 277) as she was not legally married to the defendant and had no children by him.

The appeal will be allowed and the case returned to the Rabaul District Court for rehearing before another magistrate. At the rehearing evidence of custom should be heard in accordance with the provisions of the Customs Recognitions Act (Ch.19) and then carefully applied to the facts as established by the evidence.

APPEAL ALLOWED. CASE REMITTED TO RABAUL DISTRICT COURT FOR REHEARING BEFORE ANOTHER MAGISTRATE.

Solicitor for the Appellant: A. Amet, Public Solicitor
Counsel: F. Gubon
The Respondent appeared in person

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^[1] Unreported National Court Judgment N316(M) dated 2/7/81
^[2] Unreported National Court Judgment N360(M) dated 20/11/81