Angra v Ina [1996] PGNC 101; N1440 (13 June 1996)

N1440

PAPUA NEW GUINEA
[In the National Court of Justice]

AP 360 of 1994

BETWEEN

ANTON ANGRA & OIMBO SECURITY SERVICES PTY LTD
(Appellant)

AND

TONY INA
(Respondent)

WAIGANI: Doherty, J.
1996: June 13

District Court procedures - must be hearing of witnesses were facts in dispute - obligation to give reasons for decision when appeal filed mandatory - prolonged adjournments unjust.

This was appeal against an entry of judgment made without hearing witnesses and without giving any reasons.

Held:

(1) the obligation to hear witnesses is a mandatory obligation imposed by statute.

(2) where facts are not challenged affidavit evidence can be tendered by consent.

(3) the obligation to give reasons once an appeal is lodged is a mandatory one imposed by statute.

(4) prolonged adjournment without reason is unjust.

Cases Cited:-
Epeli Davinga v. State, Unreported SC 491
Lee v. Lee [1973] PNGLR 89
Bougainville Copper and Masai Levif v. Mathew Liu [1978] PNGLR 221

Mr Ketan, for the Appellant
Mr Mawa, for the Respondent

This is an appeal from a decision of the Port Moresby Grade 'V' District Court given on the 2nd December 1994. The appeal is against the procedures that were followed in the lower court prior to and in reaching that decision.

The transcript shows that a complaint and summons were filed in the District Court on the 21st May 1993 claiming both general and specific damages for an alleged assault by the first appellant, a security guard, and against his employer. It was alleged that an unprovoked attack was made on the complainant, (respondent in this court) and injuries were inflicted. The return date was the 24th June 1993 and subsequently a defence was filed on the 12th August 1993 alleging that the complainant had acted aggressively and illegally, had tripped on the road and that he was, in effect, the author of his own misfortune.

According to a brief look at the depositions it would appear that this matter was adjourned approximately 25 times in the District Court for mention. A few only of those were by request of Counsel, there was a change of counsel on the 30th November 1993. I consider that that in itself was a disgraceful example of justice being administered. It is trite law that cases should be heard expeditiously and be seen to be disposed of in a reasonable time without incurring costs to clients and wasting time of counsel and magistrates by mere adjournments.

I am of the view that the complaint and summons filed clearly was not a claim under s.156 of the District Court Act for a liquidated amount and the provisions of s.141 of the District Court Act automatically applied. This provides that when facts are not admitted the Court shall proceed to hear the complainant, the defendant and their witnesses. The provision is a mandatory one.

It would appear from the submissions of the Counsel before me and partly from the record that some form of decision was made that the witnesses would not be called but submissions instead would be made on the affidavit evidence. The evidence of the witness' statements filed in February 1994 show quite diametrically different versions of events; the complainant basically saying that he was at a supermarket on his own business saw another person being assaulted, told the assailants to desist and the assailants then turned on him and without provocation assaulted him. The appellants version is that the complainant was drunk, aggressive and had assaulted a member of the staff of the supermarket and while being reasonably removed he tripped.

Faced was such diametrically different versions as to liability I do not consider that the learned magistrate could have made a clear decision on either the cause of the injuries or their extent without hearing and the assessing the witnesses as the law requires. In this I refer to and quote from the decision of the Supreme Court in Epeli Davinga v. The State SC 491 (in reference to a criminal case but equally applicable to civil evidence). "There is no doubt that it is open to both prosecution and defence to agree on admission of certain facts and this is often done where there is no doubt or no challenge to the facts. And with the cost of justice and pressure to make courts and trials efficient such agreement on admission of uncontroverted facts should be part of any efficient Court system." The Supreme Court gave some examples but held "a court trial judge should always consider carefully whether there can be no prejudice to a fair trial by admission of such evidence" before holding it was necessary that witnesses be assessed and called. I consider that the learned magistrate erred in failing to call the witnesses and have them give their evidence, even by way of cross examination, so he could assess the veracity of their evidence and make a decision and finding of fact.

After deciding submissions would be made the District Court then adjourned to 2nd December 1994. Mr Mawa for the respondent has pointed out that the record shows it was a "adjourn by consent for decision" [sic] and he said this was likely to be for decision of fact. The record shows that no counsel appeared on that day, there is no explanation for non-appearance. The complainant only appeared and the record is as follows:-

"Judgment in full plus costs plus ....... per cent interest."

No reasons for decision were given. It is not clear what amount is awarded. It is not clear how a decision was reached. It is not even clear if it was for the complainant.

An appeal was lodged on the 22 December 1994 and in accordance with the procedure under S.225 District Court Act Ch. 40 this was brought to the attention of the Clerk of the District Court and reasons for decision sought. Despite this no reasons for decision have been furnished by the learned magistrate and we do not know why he reached the decision he did despite the mandatory provisions S. 225 of the District Court Act Ch 40 obliging him to make a report to the Registrar. I refer and restate here the ruling of the Supreme Court (as it was then the National Court now) in Lee v. Lee [1973] PNGLR 89 and in Bougainville Copper & Masai Levi v. Liu [1978] PNGLR 221 regarding magistrates reasons for decision.

I consider that there has been a considerable miscarriage of justice and a disgraceful method of holding a Court case. The witnesses should have been heard in view of such diametrically opposed versions of events and a finding made.

I consider that injustice has been done to both parties by the prolonged adjournments.

I consider that no court could have made an assessment of damages or of liability in the light of the evidence that was filed by affidavit in the District Court.

Accordingly I uphold the appeal. I remit the matter for rehearing before the District Court in accordance with S.230(1)(d) District Court Act Ch 40. I further direct that the parties be given a hearing within four weeks of the date as I consider that injustice has been done to them by the prolonged adjournments.

I make no order as to costs.

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Lawyers for the Appellants: BLAKE DAWSON WALDRON
Lawyers for the Respondent: NONGGORR & ASSOCIATES