Kimbe Bakery Pty Ltd v Jalatang [1993] PGNC 4; N1274 (12 May 1993)

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DISTRICT COURTS - Appeal from - Recognizance to prosecute appeal or cash deposit on direction from magistrate - not condition precedent - no power to dispense with - Failure to file - District Courts Act Ch. 40, s. 222.

APPEALS - Practice and procedure - Recognizance to prosecute or cash deposit on direction by magistrate - No recognizance filed - Cash deposit paid out of time directed by Asst. Registrar - No power to waive requirement by Court or Asst. Registrar - Failure invalidates appeal.

Where the appellant filed an appeal in pursuance of s.220 of the District Courts Act, but failed to comply with s. 222.

Failure by the appellant to comply with the requirement of s. 222 (1) of the District Courts Act invalidates the appeal and neither the Assistant Registrar nor the National Court has power to waive compliance with that requirement.

SEVUA AJ: The appellant was ordered by the Kimbe District Court on 16th June 1992, to pay to the respondent the total sum of K3,232.40 computed as follows:

(i)	Recreational leave as per Phillip Lipio's calculation	K200.00
(ii)	Sick leave entitlement @ 6 days per 18 days minimum	K194.40
(iii)	Salary 24/04/91 - 16/06/92	K2688.00
(iv)	Costs of these proceedings	K150.00
	Total	K3,233.40

The order was in respect of finding of liability by the District Court relating to the respondent’s wrongful dismissal by his employer, the appellant.

The appellant through its lawyers, Namaliu & Company, lodged a notice of appeal on 14th July, 1992 and on the same date, filed the entry of appeal. On 10th August, 1992 the appellant paid the sum of K200.00 as security. No further documents were filed until 6th January, 1993 when the appellant filed the notice of hearing of appeal and that notice set down the date of hearing of this appeal as 2nd February, 1993 at Kimbe.

Soon after Mr Lupalrea’s announcement of his appearance, I raised two matters as preliminary issues and intimated I did not wish to hear counsel as to the substantive arguments until these preliminary issues were resolved. The two issues were, firstly, the appellant’s apparent non-compliance with the District Court Order of 16th June, 1992 and secondly; the issue of recognizance on appeal or security pursuant to s. 222 (1) of the District Courts Act.

In respect of the first preliminary issue, I asked Mr Lupelrea, if his client had paid the money to the respondent. He said the notice of appeal was lodged straight after the order therefore, he thought, for that reason, his client did not have to comply with the order of 16th June, 1992. However, a close scrutiny of the Court depositions clearly showed that the notice of appeal was not lodged straight after the decision on 16th June, 1992, but some twenty seven days after. He further said, if payment had been made by his client in accordance with that order, the respondent would not be able to repay it and in any event, there would be no need for appealing. I then indicated to counsel that the Supreme Court had already resolved that where an order is made against a party and that party does not comply, because it considers the order to be irregular or unfair, the act of non-compliance amounts to contempt of court. In my view, his client was therefore in contempt of court although it was for the respondent to pursue that issue.

The law in this area is well settled, in my view. In Yap v Tan & Ors [1987] PNGLR 227, it was held inter alia that “when an order is made by a Court of competent jurisdiction it is the obligation of every person against, in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void”. The Court followed and applied three common law decisions, namely, Helmore v Smith [1887] UKLawRpCh 70; (1887) 35 Ch D 436, Hadkinson v Hadkinson [1952] p 285; 2 A11 ER 567 and Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820.

The appellant here seemed to have feared that if it had complied with the order, it would not be possible to recover the money from the respondent. Presumably it thought, the appeal would be upheld thus it would be able to recover from the respondent. In my view, it is obvious that the appellant had pre-empted the decision of this Court without putting its house in order. The appellant had put the cart before the horse so to speak. I consider that the way around the appellant’s concern here was to pay the money into Court then pursue the appeal. The appellant could have, in the usual manner, applied for a stay or execution of the District Court order of 16 June, 1992. After the decision of the National Court on appeal, an order could be made either way. As it were, the appellant did not comply with the District Court Order and was therefore in contempt of Court. However, in my view, the respondent should take the necessary course of action to pursue this matter thus I take it no further than this.

The other matter I raised was the question of recognizance on appeal or security. I raised this matter because I believe it went to the competency of the appeal. Mr Lupalrea said the notice of appeal was lodged on 14th July 1992, that is, within the statutory period and I agree with him. But he also said the security was paid on 10th August, 1992, more than one and half months after the one month statutory period had lapsed. He further said the Assistant Registrar in Rabaul had advised that the security could be paid then. I refer to his letter dated 10th August, 1992 to his client. "...and advise that the Assistant Registrar of the National Court, Rabaul had agreed that security for the appeal can be paid at this point in time." I cannot find any power under the District Courts Act, or the Rules or any other legislation which authorises the Assistant Registrar to waive the requirement of s 222(1). In my view, the Assistant Registrar has no power to waive the requirements of s. 222(1). I cannot even find any discretion under that provision for this Court to exercise either.

Section 222 (1) is very clear. “Subject to subsection (2), within one month...an appellant shall enter into a recognizance with a security...or the appellant may, instead of entering into recognizance, deposit with the Clerk of Court...such sums of money as a magistrate in writing directs” (underlining mine). I am not sure if the payment of the K200.00 was directed by a magistrate, since there is nothing before me and Mr Lupalrea did not elaborate on this. What I am certain of is that, the security was not paid within the one month period required by the Act. Does this mean then that the Assistant Registrar can accept the security or recognizance outside the one month period? I consider that he had no authority to accept the recognizance or security outside the time limit. Because the provision relating to appeals from the District Court to the National Court are creature of statute, we must look at those provisions to find the ambit of the power of the Court - Kiau Nikints v Moki Rumints [1990] PNGLR 123.

I consider that the law is as applied by His Honour, Woods J in the case cited above. The appellant did not comply with the requirement of s. 222 (1) of the District Courts Act which is in mandatory terms. The cash deposit of K200.00 was lodge out of time and without the direction of a magistrate. Neither the Assistant Registrar of the National Court in Rabaul nor this Court has any discretionary power to waive this mandatory requirement. It follows therefor that the failure by the appellant must invalidate his appeal.

I find that the appellant has not complied with the requirement of s. 222 (1) of the District Courts Act and I therefore dismiss the appeal. Since the respondent did not appear and in my view, has not incur any cost, I make no order as to costs.

National Court of Papua New Guinea

Kimbe Bakery Pty Ltd v Jalatang [1993] PGNC 4; N1274 (12 May 1993)