Waiye v Duako and Trans Niugini Tours [1997] PGNC 25; N1541 (14 March 1997)

Unreported National Court Decisions

N1541

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 1133 OF 1996
BETWEEN
SAGUA WAIYE - Plaintiff
And
NICK DUAKO - First Defendant
And
TRANS NIUGINI TOURS - Second Defendant

Mount Hagen

Lenalia AJ
7 March 1997
14 March 1997

CIVIL JURISDICTION - Practice and Procedure - Proceedings commenced in District Court - Transferred to National Court for lack of jurisdiction S. 24 (1) District Courts Act -Ch. No. 40

CIVIL LAW - Practice of Procedure - Amended Statement of Claim ordered by that court and filed in the same - Whether National Court could accept Amended Statement of Claim bearing District Court instillation - No contention raised about the complaint form and Summons Upon Complaint laid before the District Court - Whether parties should proceed in the National Court without a Writ or originating summons.

No Cases Cited.

Held:

(1) ټ Where pere proceedings have been instituted in the District Court pursuant to S. 28 of the District Courts Act Ch. No. 40 and such a proceeding is transferred to the National Cfor rs of of juri jurisdiction, the National Court merely aely adoptsdopts what has been created in the District Court.

(2) &ـ The Amee Amended Sded Statement of Claim was filed in compliance with the order of the District Court and is thus valid urpos the Plaintiff’s cause in the National Court.

(3) & &160; #160; By virtuthof istrict CourtCourt Order made on 5th November 1996, all documents including the Complaint and Summons Upon Complaint and the Amended Statement ofm areted b Registry for purposes of proceedings in then the Nati National onal Court.

(4) &##160;e ierno r no requirequirement therefore for a second Amended Statement of Claim.

Counsel:

A Kandakasi for the Plaintiff

J Steelthe Dants

INTERLOCUTORY RULINRULINGG

17 March 1997

LENALIA AJ: By a Notice of Motion filed on 20th of February 1997, the Defendants through their lawyer, Warner Shand Lawyers based in Mount Hagen Mr Steel sought the following orders:

“1. ـ&#1he Amee Amended Sded Statement of Claim filed on 2nd December 1996 be struck out.

2. ټ T60; The Plaintiff’y lawyer filed an address for service w 15 ktres of the MountMount Hage Hagen Sub Registry as required by Order 6 Rule 7 of the National Court Rules.

3. ـ&#1uch fr or otor other oher ordersrders as the court sees fit.

4. &ـ T6e Plae Plaintiffntiff pay the Defendant17; cof anidental to this Notice of Motion.”

The Plaintiff in this phis proceeroceedingsdings commenced proceedings in the Mount HDistrourt d of Maof May 199y 1996 by 6 by way of a complaint being filed in the District Court. On 21st oober 1996, the Plhe Plaintiff’s lawyers were instructed to act for the Plaintiff and was also effected by filing a Notice of Change of Lawyers on 24th of ame month. From instructions red the the Plaintiff&#iff’s lawyers were of the view that the Plaintiff had a much more substantial claim than the amount he was claiming in the District Court. The original amount clain d in the District Court was K5,000.00. When the final figures made made available by the Department of Industrial Relations, it amounted to K16,469.73 parious other items it was finally calculated at K84,127.52 7.52 - see the Amended Statement of Claim.

By a Notice of Motion dated 30th October 1996 and filed on 5th November a month later, the Plaintiff’s lawyers sought the following orders:

“1. &#1he proceedings be transfransferred to the National Court.

2. ـ҈ T60; The Come Complainant be given leave to file and serve an Amended Statement of Claim.

3. ـ T6e costs of tpplicpplic be in the cause.

4.  &; The time for efor entry of these orders be abridged to the date ttlemy thestrat Clerk of the Court whi; which shch shall tall take pake place forthwith.

5. Further or such other ordsrs as this Honourable Court deems fit.”

This motion was heard ex-parte despite due notice by the Plaintiff’s lawyert theon wa and d foring oh of Nove November mber 1996.1996.&#160 His; His Wors Worship, pa Appa accepted the application and made ex-parte orders adopting the first four sets of orders proposed in the Notice of Motion.

Mr Steel’s contention is that at the time of thesfer of the proceedings, ths, the pleadings had long since closed and the Amended Statement of Claim filed on 2nd December 1996 was contrary to Order 8 Rules 50-58 of the National Court Rules of 1983. Division 4 of Order 8 r. 5rr. 50 & 51 say that at any stage of the proceedings an amendment can be taken and a party is allowed to amend pleadings once at any time before the ples are closed.

Quite obviously this claim could not bnot be maintained at the District Court since it was out of the Principal Magistrate jurisdiction placed by S. 21 of the District Courts Act. Under S. 24 (1) of thericttrict Courts Act, proceedings can be transferred to the National Court at any time before judgement with or without an application from an interested party.; His Worship, Mr Appa noted on the worksheet of 5th of Novf November 1996 the following comments:

“I am satisfied with the affidavit containing reasons for the application and considered that the matter should have been lodged in the National Court in the first instance. Tmplainant intends to amen amend the statement of claim which is going to exceed this Court’s jurisdiction. Its only propet this case case be transferred to the National Court for hearing and determination.”

In matters where the District court has concurrent jurisdiction with the National Court, S. 23 of the District Courts Act says that if the District Court is of the opinion that in all the circumstances of the case, the matter is a fit subject for determination by the National Court, it should abstain from adjudication and the matter should be transferred accordingly.

Mr Kandakasi argued that they stand by the orders of the District Court and there was no need to have any further Statement of Claim as the Amended Statement of Claim was filed pursuant to orders by the District Court on 5th November 1996. He further argued the defe defence has now criticised them for what appears to them to be no defect at all and on the other hand the defence ually at fault by not filing a defence within 14 days for the Amended Statement of Claim asim as required by Order 8 r 4 and 51 (a) ( the National Court Rules. He fr argued why wait unti until this stage of the proceedoceedings when the matter could have been resolved at an earlier stage by application to set aside - see S. 25 District Courts Act.

Mr Kandakasi deposed to a number of correspondences in his affidavit tendered over the bar to a number of correspondence of what transpired between the lawyers for the parties: see annexures20;A-1”8221; in Mr Kandakasi’s affidavit. By annexu8220;A” the; the writers indicated their intentions to apply to the District Court in Hagen to have the proceedings transferred from the Mount Hagen Distrourt to the National Court. Theo indicated that that shat since particulars of the claim were not fully set out to the extent of their client’s cause, it was necessary to file and serve an Amended Statement of Claim. By annexure “B” the defence lawyers replied in the negative to the intended Notice of Motion and suggested that the proceedings already commenced i District Court be discontinued and that fresh proceedings be instituted in the National Coal Court. On 8th of November 1996 Young & Williams wrote to the Defendant’s lawyers revealing that their client had filed a Notice of Motion before the Haistrict Court and was listed for hearing on 14th of November. Tletter fully set set outt out reasons for the proposed application to apply for transfer under S. 24 (1) of the District Courts Act. Subsequent correspondencew show Young & Williams7; insistence on pursuing ting their intended Notice whilst Warner Shand Lawyers kept expressing negative responses.

In my viere is may be one issue to be addressed and that is what stat status does the Amended Statement of Claim has when it was filed in the District Court under an order from that Court. I note fromfile that therethere are other documents such as the Complaint Form and summons Upon Complaint that form the basis of the Plaintiff’s claim but which the lawyers did not address quite pry because it was not put orut or raised in the current Notice of Motion by the defence lawyers. That being the case, I do not wish to venture into any discussion on the Complaint and Summons Upon Complaint. I take it that documents ents are proper alid for purposes of proceedings in the National Court.

By analogy and unlike in comn committal proceedings where an accused imitted either for trial or sentence to the National Court uurt under S. 118 of the District Courts Act specifically defines what documents need to be transmitted to the Registrar of the National and Supreme Courts. Section ) of the District rict Courts Act provides:

“Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with orout an application from an interested person for that purpopurpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court.”

Obviously from my reading of the above quote there is no mention of what documents need to be transmitted to the National Court when a matter is transferred. What is abundantly clear from S. 24 (1) of the District Courts Act is that, what is being transferred is “the proceedings”. That is to say &#the proceproceedings” have been commenced in the District Court. My view iiew is that it e the legislative intent that the proceedings is transferr compared to proceedings instituted in the National Court uurt under Order 4 Rules 1, 2 & 23 of the National Court Rules. Ts theation where this this this proceedings were already on foot in the District Court but was transferred due to lack of jurisdictio60; The term “transfer” is not defined in the District Court Act. Howeverwever the d Advancevanced Learner’s Dictionary offers several definitions and meanings to mean “to move something or somebody from one place to another”to “hand over the possession of property” to soto somebody else.

It is my view that when an order for transfer of the proceedings to the National Court is made under S. 24 (1) of the District Courts Act, it simply means the transfer of all documents that were already filed in the District Court. Theded Statement of Claim laim that is now in dispute was filed in accordance with an order of the District Court and simply put, the National Court merely adopts or inherits what was created by istrict Court.

In a In a situation where procedure is wanting or in doubt and the procedure is not prescribed by an Act or the Rules I could use my discretion to give directions to the Plaintiff to comply with certain procedural defect that might have otherwise developed during the course of the Plaintiff’s dealing with his claim as required by Order 1 Rule 12 of the National Court Rules. But is no case case here.&ere. I find ths nothing wrong wong with the Amended Statement of Claim even though it was filed in the District Court or even bears the District Court intutulation. I must r the motion and gind give dions to the Defence to file file their defence to that Amended Statement of Claim within 14 days.&#1 a; I also order costs in f of the Plaintiff to be taxed if not agreed.

Lawyer wyer for the Plaintiffs: Young & Williams Lawyers

Lawyer for the Defendants: Warner Shand Lawyers