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,AppelAppellant sought “leave” of the National Court to file an appeal out of time and was granted by this Court. Thellant then “appeaappealed” against the decision pursuant to provisions of the District Courts Act (Ch. No. 40). Thring of the substantive tive appeal was fixed for hearing on 15 November 1996 at 1.30 pm in the National Court at Mount Hagen. e of the hearing was sent sent out by the A/Registrar at Mount Hagen to both parties on 22 October 1996. Both parties received Noti 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 prese p in person. He had travelled from Waba Wabag. Neither the Apnt nor his chis counsel, Mr K. Peri from Warner Shand Lawyers of Mount Hagen was present. As thas no appearby orthe rthe Aant andt and no explanation as to their absence bnce before me, I made an order “stri;striking out” the appeal for want osecution. Such power was given e Coue Court by S. 230. 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 Aphe 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 firsl with three procedural aspects as to the competency of cerf certain procedural steps taken by the Appellant which concern me. irst aspect relates to theo the competency of this application. The District Court is a creature of statute whose practiceprocedure is prescribed by statute: Ninkints -v- Moki Rumints ints [1990] PNGLR 123; 123; Peter Rose v Yamu Samuel [1987] PNGLR160; The practice and procedure relating to appeals from a om 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 iprovision an Appellppellant 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 disng or striking out the appe 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. there is no such stat prot provision, this Court cann cannot create one. The National Court may have power under the National Court Rules to entertain an applin to set aside an ex-parte order but those rules do not appt apply to appeals against a decision of the District Court. The onlt step open to the the Appellant was to lodge an appeal against the National Court decision to the Supreme Court. I rule this cation is inco incompetent as being not allowed for under the District Courts Act.

.

The second aspect relates to the tency of the entire process of instituting the substantive appeal. This is an appeal peal 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. Tpellant’s lawyerounerount Hagen filed the appeal. The dec of the Waba Wabag abag District Court appealed from was made on 27 May 1996. The Appt did not l within thin one month as prescribed by S. 220 o220 of the District Courts Act. The last date iling a Noti Notice of Appepired on 27 June 1996. More than twomonths after fter the 27 June 1996, the Appellantllant filed an application in the Nationalt at Mount Hagen, by Originating Summons No. 328/96, seekineeking an extension of time to lodge an appeal. But the Originating Summols only sought “leave&#82o “s220;serve Notice of Appeal out of time”. On 20 mber 1996, the Nal CNal Court at Mount Hagen granted the orders sought in those terms, that is, “leave̶” is granted to the Plaintiff to serve Noof appeal out of time”. O0/96, the Appellapellant lant 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 peaAppeal and Recognizance on Appeal constitutes the institution of an appeal: S. 220(1) of therict CourtCourts Act. In my vie at the time the the National Court granted the leave sought, an appeal had not yet been iuted because no Notice of Appeal and Recognizance on Appeal had been filed. Thereforeefore, the ordeghsought 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 befor Court for which leave was sought to extend time for servicervice only. The order of the NationurtCourt therefore had no proper legal basis. For this reason, hole appe appeal in App. 236/96 was incompetent in law. This isher reason why I de I der that the present application is without basis in law anaw and should be dismissed.

The third point relates to the obtaining of -parte stay order from the Lae National Court at Lae when phen 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 matame to me for direcdirections. ew of the incompetent natu nature of the appeal filed and the absence of evidence to support any purported application, I rd to tain the application in chambers. This woul would then have meant that the Appellant&lant’s counsel would have filed appropriate application in Court by way of Notice of Motion supported by affidavits. On 17 October the Appellapellant’ssel filed a Notice of MotioMotion and affidavits at the Mount Hagen registry. Instead of obtaining a fore for the hearing of thion in Mount Hagen, the Appellant’s counsel somehow ohow obtained a stay order from the Lae National Court on 17 October 1996 arved it on the Registrar in Mount Hagen. It is not clot clear i Note Notice of Motion and affidavits were filed before or after the stay order was obtained. Be order itself is misleadsleading in that it shows that the order was made by the National at Mount Hagen.

Whip>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 one of thef 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 thernative, I would stid stilliss the application on anot another ground. I am not satisfied with xpe explanation given by Mr Peri as to his non-appearance a0 pm on 15 November 1996. His explan as per his his his affidavit is that he was aware that the a waal was coming on foring at 1.30 pm on 15/11/9611/96 before myself. But between the time whenathe appeal was entered for hearing on 1/10/96 and the hearate on 15/11/96, at 1.30 pm, the District Court depositionstions received by the Registry in Mount Hagen did not contain the reasons ecision of the Magistrate cate concerned. So he attended the ciotionotions 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 becaue Magistrate’s reasoneasons had not been received, he wanted the hearing of the appeal in the afternoon to be vacated. Heght turt noted what he s he said and immediately returned tned to his office thinking that the appeal had been vacated and adjourned ally. He thought I took a note af what he said. He went back t office, mad, mad, 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 Magistra160; He did not take out anut any orders to that effect from the Registry. On 18 November 1996,rote tote to the Wabag District Court Clerk asking for the reasons for decision. He wrote in thtter that that the hearing of the matter scheduled for 15 Ner 1996 had been vacated. He did notver, indicatdicatdicate when and which judge vacated the fixture. A copy of this letts sent to the National Cour Court in Mount Hagen and received by the registry on 19 November 1996. Subseqto that letter he wrhe wrotumber of follow-up letters to the Wabag District Court. On 3 Decembe6, the RespoRespoRespondent took out the Court order strikit the appeal and served it on Mr Peri’s office on 10 n 10 February 1997. Upon learning of thisr, Mrr, Mr Peri says he pro filed this application on n on 12/2/97.

On 15/11/96 I was the presiding judge for the civil motions in Court Room No. 1.&#160hough Mr Peri appeared in some other matters, I never heardheard him mention this appeal and make the application he says he made before me. I never made any o vacatincating the hearing scheduled for 1.30 pm that day. Alsore is no endorsement bent by my Associate on the Court file of the matter being mentioned in the morning and being vacated. Theer was not on the motiimotiist (2 lists) that day. So that whenmatter came came came on for hearing at 1.30 pm or thereafter, I was certain that neither tpellant nor his lawyer was present without any explanation tion to the Court. It was on this basis the athe appeal was struck out.

During the civil motions in the morning, I took contemporaneous notes of what transpired that morning. My own notes that matter wter was not mentioned in the morning. I 0; I have also provided ided with a transcript by the Transcription Unit wrecorded all events during the civil motions. There is no record of ri meri mentioninioning this matter.

Mr Peri’sanation now is that becausecause he was sitting far from the Court recorder, the recorder must have missed what he said. And be he wtting behind thnd the the bar table, in the public gallery, I must have missed what he said.

The Respondent questioned Mi (under Oath) about his presence in Court at 1.30 pm or thereabouts. It was put to M to Mr pert that he was in Court at 1.30 pm but didn’t wait for the case. When the case was called phe Appellant looked for him and he had disappeared or was Mr denied this. The The Respondenld not not not call any witnesses to prove his assertion. Thee, I am unab makedefiniefinite finding ding as to whether Mr Peri was in Court at 1.30 pm and purposefully disappisappeared when the appeal was called.

W do know from the strength of the Court records, my own recn 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 hiser ofer 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 record dismissed his explanation outright and found that he was lwas lying to the Court. Also, Fridayl motions in C in Court Room No. 1 was busy as usual with movement of members of the audience and lawyers. Mr Peri is a man witery sory soft voice and at mumbles words. In the past I sometiave have had trou trouble understanding what he is saying. In tcircumstances, I him thim the benefit of the doubt and accept his explanation.&#1n. He might haid something whng which I missed.

But let me say thiwyers appearing in Court for clients must be vigilant and aand attentive in their representation of clients and presentation of theirnt’s case in Court.&#rt. must stand up in court andt and speak up for their clients. Thet make sure the Court uurt understands them. They must take acc notes otes of the comments and in particular, orders made by the Court. They must nobour assums asns as to what the Court might of have said orid or ordered. If they do so, they do it at their own risk. It woulan act of ssional nnal negligence to assume things the Court never says and does.

I

I am of the view that Mr Peri may have negliin the conduct of his client’s case on 15 N 15 November 1996. His client has a as a right to sue him for professional negligence. His negligent conduct lowillowing his client to suffer the judgment or order cannot be a good basis for an applic to set aside the judgment or order of the Court: Leo DugurDugure 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 forwyelawyer 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 foregdiscussions, I have given some thought as to whether the conduct of Mr Peri on 15/11/96 req6 requires further investigation to ascertain if he has committed a breach of the Professional Conduct Rules. The allegation made byakaiSakaip 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 oferi which only the proper authority needs to investigate.&#te. fore, I have decided that 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 Rear to the nthe necessary stry steps.

The orders of the Court therefore are:

(1) &ـ The appe applin toin to set aside the National Court order of 15 November 1996 is dismissed.

(2) &160; ټ The orf r of Court ourt on 15 November 1996 striking out the appeal is a is affirmffirmed.

(3) The decision of the Wabatrictt app from is further affirmed.

(4)&#(4) &160; #1660;&##16; Previousvious orders of this Court staying the enforcemf theonal orde15 Nor 1996 and the orig original inal orderorder of t of the Dihe District Court pending the determination of this present application are dissolve>

(5) &160; ; Mr0K. Peri be referred toed to the Lawyers Statutory Committee for investigation and appropriate disciplinary action.

(6) ;&#16e Appellantllant pay tpay the Respondent’s costs of this application.

Lawyer for the Appellant: Warner Shand

Lawyer for the Respondent: Respondent in person