ABCO Transport Pty Ltd v Sakaip [1997] PGNC 65; N1577 (30 May 1997)

Unreported National Court Decisions

N1577

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 236 OF 1996
BETWEEN
ABCO TRANSPORT PTY LTD - APPELLANT
AND
TIMOTHY SAKAIP - RESPONDENT

Mount Hagen

Injia J
16 May 1997
30 May 1997

INFERIOR COURTS - Appeals - District Court - Application to set aside ex-parte order striking out appeal for non-attendance of Appellant in Court - No statutory provision allowing for such application - Application incompetent - Application dismissed - District Courts Act (Ch. No. 40), Part XI (SS. 219 - 246).

PRACTICE AND PROCEDURE - Inferior Courts - District Court - Appeal - Undesirability of applications for stay of execution of order appealed from made in another National Court in another province when substantive proceeding pending in another National Court in another province.

LAWYERS - Professional conduct - Professional negligence - Lawyer assuming court order never made by Court - Duty of lawyers to be attentive in Court and take accurate notes of Court’s orders.

Cases Cited

Peter Rose v Yamu Samuel [1987] PNGLR 1

Kian Ninkints v Moki Rumints [1990] PNGLR 123

Leo Dugure v Avia Andrew Paru Unreported Supreme Court judgment SC 510 dated 18 October 1996

Counsel

K Peri for the Appellant

Respondent in person

30 May 1997

INJIA J: The substantive appeal relates to a decision of the District Court at Wabag made on 27 May 1996. On 20 September 1996, the Appellant sought “leave” of the National Court to file an appeal out of time and was granted by this Court. The Appellant then “appealed” against the decision pursuant to provisions of the District Courts Act (Ch. No. 40). The hearing of the substantive appeal was fixed for hearing on 15 November 1996 at 1.30 pm in the National Court at Mount Hagen. Notice of the hearing was sent out by the A/Registrar at Mount Hagen to both parties on 22 October 1996. Both parties received this Notice of Hearing and were aware of the fixture.

At 1.30 pm on 15 November 1996, the appeal came on for hearing before me. The Respondent was present in person. He had travelled down from Wabag. Neither the Appellant nor his counsel, Mr K. Peri from Warner Shand Lawyers of Mount Hagen was present. As there was no appearance by or for the Appellant and no explanation as to their absence before me, I made an order “striking out” the appeal for want of prosecution. Such power was given to the Court by S. 230 (f) of the <REF CA-ACT-19??-000>District Court Act (Ch. No. 40) which provides: “On the hearing of an appeal, the National Court shall enquire into the matter, and may...(f) make such further or other orders as to costs or otherwise as the case requires”. (my underlining).

The Appellant now applies to set aside the order of 15 November 1996 striking out the appeal and thereupon, re-instate the appeal.

I need to first deal with three procedural aspects as to the competency of certain procedural steps taken by the Appellant which concern me. The first aspect relates to the competency of this application. The District Court is a creature of statute whose practice and procedure is prescribed by statute: Kiau Ninkints -v- Moki Rumints [1990] PNGLR 123; Peter Rose v Yamu Samuel [1987] PNGLR 1. The practice and procedure relating to appeals from a decision of the District Courts is set out in Part XI (SS. 219 - 246) of the <REF CA-ACT-19??-000>District Courts Act. There is no provision an Appellant whose appeal is struck out or dismissed for want of prosecution due to his non-appearance at the hearing, to apply to the National Court, to set aside the order dismissing or striking out the appeal. For instance, there is no provision similar to S. 25 of the District Courts Act which empowers the District Court to set aside an ex-parte order upon application by an aggrieved person. Where there is no such statutory provision, this Court cannot create one. The National Court may have power under the National Court Rules to entertain an application to set aside an ex-parte order but those rules do not apply to appeals against a decision of the District Court. The only next step open to the Appellant was to lodge an appeal against the National Court decision to the Supreme Court. I rule that this application is incompetent as being not allowed for under the District Courts Act.

The second aspect relates to the competency of the entire process of instituting the substantive appeal. This is an appeal which was filed in the Mount Hagen Registry of the National Court on 1/10/96 in respect of a decision of the Wabag District Court. The Appellant’s lawyer in Mount Hagen filed the appeal. The decision of the Wabag District Court appealed from was made on 27 May 1996. The Appellant did not appeal within one month as prescribed by S. 220 of the District Courts Act. The last date for filing a Notice of Appeal expired on 27 June 1996. More than two (2) months after the 27 June 1996, the Appellant filed an application in the National Court at Mount Hagen, by Originating Summons No. 328/96, seeking an extension of time to lodge an appeal. But the Originating Summons only sought “leave” to “serve Notice of Appeal out of time”. On 20 September 1996, the National Court at Mount Hagen granted the orders sought in those terms, that is, “leave” is granted to the Plaintiff to serve Notice of appeal out of time”. On 1/10/96, the Appellant filed at the registry of the National Court at Mount Hagen a Notice of Appeal, Recognizance on Appeal and Entry of appeal to the National Court as required by S. 220 and 222 of the District Courts Act. The filing of a Notice of Appeal and Recognizance on Appeal constitutes the institution of an appeal: S. 220(1) of the District Courts Act. In my view, as at the time the National Court granted the leave sought, an appeal had not yet been instituted because no Notice of Appeal and Recognizance on Appeal had been filed. Therefore, the order sought by the Applicant which was in the terms ordered by the Court on 1/10/96 in OS 328/96 was misconceived because there was no Notice of Appeal filed before the Court for which leave was sought to extend time for service only. The order of the National Court therefore had no proper legal basis. For this reason, the whole appeal in App. 236/96 was incompetent in law. This is another reason why I consider that the present application is without basis in law and should be dismissed.

The third point relates to the obtaining of an ex-parte stay order from the Lae National Court at Lae when proceeding were on foot before the National Court at Mount Hagen. On or about 16/10/96, the Appellant’s counsel only after filing the Notice of Appeal, Recognizance on Appeal and Entry of Appeal requested the Registrar for an audience with the judge in chambers so he could make a verbal application, for stay of execution of the District Court order, without filing a Notice of Motion and affidavits. The matter came to me for directions. In view of the incompetent nature of the appeal filed and the absence of evidence to support any purported application, I refused to entertain the application in chambers. This would then have meant that the Appellant’s counsel would have filed appropriate application in Court by way of Notice of Motion supported by affidavits. On 17 October 1996, the Appellant’s counsel filed a Notice of Motion and affidavits at the Mount Hagen registry. Instead of obtaining a date for the hearing of the Motion in Mount Hagen, the Appellant’s counsel somehow obtained a stay order from the Lae National Court on 17 October 1996 and served it on the Registrar in Mount Hagen. It is not clear if the Notice of Motion and affidavits were filed before or after the stay order was obtained. But the order itself is misleading in that it shows that the order was made by the National Court at Mount Hagen.

Whilst I agree in principle that a National Court or judge based in a province has concurrent jurisdiction to deal with any action instituted in another province where there is a resident National Court or judge, I do not think it is proper of lawyers to make interlocutory applications before a National Court or judge based in a province when the substantive proceedings are filed and pending in another National Court in another province without first causing the substantive proceedings to be transferred to that Court or judge. It might border on abuse of the process of the Court for lawyers to do so.

I would dismiss this application based on the first and second procedural grounds above. In the alternative, I would still dismiss the application on another ground. I am not satisfied with the explanation given by Mr Peri as to his non-appearance at 1.30 pm on 15 November 1996. His explanation as per his affidavit is that he was aware that the appeal was coming on for hearing at 1.30 pm on 15/11/96 before myself. But between the time when the appeal was entered for hearing on 1/10/96 and the hearing date on 15/11/96, at 1.30 pm, the District Court depositions received by the Registry in Mount Hagen did not contain the reasons for decision of the Magistrate concerned. So he attended the civil motions court before me at 9.30 am on 15/11/96 and sat behind the bar table as there were other lawyers occupying the bar table. He mentioned the matter and told the Court that because the Magistrate’s reasons had not been received, he wanted the hearing of the appeal in the afternoon to be vacated. He thought the Court noted what he said and immediately returned to his office thinking that the appeal had been vacated and adjourned generally. He thought I took a note of what he said. He went back to his office, made an endorsement on his office file that the application for matter to be adjourned generally had been granted by myself to enable him to obtain reasons from the Magistrate. He did not take out any orders to that effect from the Registry. On 18 November 1996, he wrote to the Wabag District Court Clerk asking for the reasons for decision. He wrote in that letter that the hearing of the matter scheduled for 15 November 1996 had been vacated. He did not however, indicate when and which judge vacated the fixture. A copy of this letter was sent to the National Court in Mount Hagen and received by the registry on 19 November 1996. Subsequent to that letter he wrote a number of follow-up letters to the Wabag District Court. On 3 December 1996, the Respondent took out the Court order striking out the appeal and served it on Mr Peri’s office on 10 February 1997. Upon learning of this order, Mr Peri says he promptly filed this application on 12/2/97.

On 15/11/96 I was the presiding judge for the civil motions in Court Room No. 1. Although Mr Peri appeared in some other matters, I never heard him mention this appeal and make the application he says he made before me. I never made any orders vacating the hearing scheduled for 1.30 pm that day. Also, there is no endorsement by my Associate on the Court file of the matter being mentioned in the morning and being vacated. The matter was not on the motions list (2 lists) that day. So that when the matter came on for hearing at 1.30 pm or thereafter, I was certain that neither the Appellant nor his lawyer was present without any explanation to the Court. It was on this basis that the appeal was struck out.

During the civil motions in the morning, I took contemporaneous notes of what transpired that morning. My own notes show that this matter was not mentioned in the morning. I have also been provided with a transcript by the Transcription Unit which recorded all events during the civil motions. There is no record of Mr Peri mentioning this matter.

Mr Peri’s explanation now is that because he was sitting far from the Court recorder, the recorder must have missed what he said. And because he was sitting behind the bar table, in the public gallery, I must have missed what he said.

The Respondent questioned Mr Peri (under Oath) about his presence in Court at 1.30 pm or thereabouts. It was put to Mr peri that he was in Court at 1.30 pm but didn’t wait for the case. When the case was called the Appellant looked for him and he had disappeared or was gone. Mr peri denied this. The Respondent could not call any witnesses to prove his assertion. Therefore, I am unable to make any definite finding as to whether Mr Peri was in Court at 1.30 pm and purposefully disappeared when the appeal was called.

What I do know from the strength of the Court records, my own records and my own re-collection is that Mr Peri never mentioned this matter in the morning and I never made any order vacating the fixture. If it was not for his letter of 18 November 1996 to the Wabag District Court, a copy of which was received by the Registry on the 19th November 1996, I would have gone by the records and dismissed his explanation outright and found that he was lying to the Court. Also, Friday civil motions in Court Room No. 1 was busy as usual with movement of members of the audience and lawyers. Mr Peri is a man with a very soft voice and at times mumbles words. In the past I sometimes have had trouble understanding what he is saying. In these circumstances, I give him the benefit of the doubt and accept his explanation. He might have said something which I missed.

But let me say this, lawyers appearing in Court for clients must be vigilant and attentive in their representation of clients and presentation of their client’s case in Court. They must stand up in court and speak up for their clients. They must make sure the Court understands them. They must take accurate notes of the comments and in particular, orders made by the Court. They must not harbour assumptions as to what the Court might of have said or ordered. If they do so, they do it at their own risk. It would be an act of professional negligence to assume things the Court never says and does.

I am of the view that Mr Peri may have been negligent in the conduct of his client’s case on 15 November 1996. His client has a right to sue him for professional negligence. His negligent conduct in allowing his client to suffer the judgment or order cannot be a good basis for an application to set aside the judgment or order of the Court: Leo Dugure v Avia Andrew Paru Unreported Supreme Court judgment SC 510 dated 18 October 1996.

In the present case, if I had heard Mr Peri making such application, I would have refused to vacate the fixture. It is inappropriate for a lawyer to seek to vacate a fixture in the absence of the other party without informing the other party, especially if the other party is unrepresented, as it was the situation in this case. Given my attitude in the past in previous similar cases, Mr Peri would know that I do not grant such applications that easily.

In the light of my foregoing discussions, I have given some thought as to whether the conduct of Mr Peri on 15/11/96 requires further investigation to ascertain if he has committed a breach of the Professional Conduct Rules. The allegation made by Mr Sakaip that Mr Peri was present in Court House No. 1 after 1.30 pm and the Court records raise serious questions as to the competency and ethical conduct of Mr Peri which only the proper authority needs to investigate. Therefore, I have decided that in the exercise of my discretion, Mr Peri should be referred to the Lawyers Statutory Committee for investigation and possible prosecution. I direct the Registrar to take the necessary steps.

The orders of the Court therefore are:

(1) The application to set aside the National Court order of 15 November 1996 is dismissed.

(2) The order of this Court made on 15 November 1996 striking out the appeal is affirmed.

(3) The decision of the Wabag District Court appealed from is further affirmed.

(4) Previous orders of this Court staying the enforcement of the National Court order of 15 November 1996 and the original order of the District Court pending the determination of this present application are dissolved.

(5) Mr K. Peri be referred to the Lawyers Statutory Committee for investigation and appropriate disciplinary action.

(6) The Appellant pay the Respondent’s costs of this application.

Lawyer for the Appellant: Warner Shand

Lawyer for the Respondent: Respondent in person