Andrew v John [2001] PGNC 4; N2031 (19 January 2001)

N2031

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP CIA NO. 52 of 2000

BETWEEN:

SUNGA ANDREW

Applicant/Appellant

-V-

HELEN JOHN

Respondent

LAE: KANDAKASI, J.
2001: 19 JANUARY

INFERIOR COURTS - Appeals – Appeals to the National Court – Appeal from District Courts - Application for stay pending determination of appeal - Filing of entry of appeal to the National Court contrary to s.226 of the District Courts Act (Chp.40) – No automatic stay of District Court orders - Application for stays must be made promptly - Guidelines set by the Supreme Court for determination of stay applications apply with necessary modification to applications for stay of District Court orders pending appeal - District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

APPEALS – PRACTICE & PROCEDURE - Appeal to National Court - Appeal from District Court – Filing of entry of appeal to National Court contrary to s. 226 of the District Courts Ac - No automatic stay - Application for stay of District Court orders pending determination of appeal – Application filed outside the time limits for filing of entry of appeal to the National Court – No reasonable explanation for delay – No arguable case shown – Doubtful whether correct procedure for appeals met – Application dismissed - District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227.

PRACTICE & PROCEDURE - National Court - Appeals to – Filing of entry of appeal to National Court contrary to s. 226 of the District Courts Ac - No automatic stay - Application for stay of District Court orders pending determination of appeal – Application filed outside the time limits for filing of entry of appeal to the National Court – No reasonable explanation for delay – No arguable case shown – Doubtful whether correct procedure for appeals met – Application dismissed - District Courts Act (Ch. No. 40), ss. 220, 221, 222, 226 & 227- National Court Rules 1983, Order 10 Rule 4 & 5

Cases cited:

William Moses v. Otto Benal Magiten, (1st December 2000) N2023
Sangam Mote v. Alkan Tololo [1996] PNGLR 404
The State v.Philip Kapal & Others [1987] PNGLR 302
Gary McHardy v. Prosec Security and Communication Ltd Trading as Protect Security (30th June 2000) SC646

Counsel:

Applicant/Appellant in person
Respondent in person

INTERIM RULING

19 January, 2001

KANDAKASI, J: This is an application to stay orders for payment of maintenance of K50.00 per month until the child the subject of the order attains the age of 16 years and confinement expenses of K150.00 by the Wau District Court. The orders sought to be stayed were made on the 1st of March 2000. The Applicant/Appellant (hereinafter "the Applicant") lodged an appeal against the decision on the 9th of March 2000.

On the 9 of January 2001, an Entry of Appeal to the National Court was filed. At the same time, a notice of motion seeking a stay of the orders of the Wau District Court was filed. The motion was fixed for hearing on the 19th of January 2001. I heard the motion on that date and refused it. At that time I gave my reasons in brief orally. This constitutes my reasons in full.

The Motion

The notice of motion seeks the following orders:

1. That the order of the Wau District Court of 1st March 2000 and subject of these proceedings be stayed until the National Court makes a decision on this appeal.
   
2. Any other orders this Honourable Court deems fit.
   

In support of the motion, the Applicant swore to and filed an affidavit also on the 9th of January 2001. The Applicant deposes to the fact of District Court orders and the appeal against them. He also deposes to having received the depositions without specifying when he received them. He further deposes at paragraph 3 of his affidavit that he is seeking a stay of the orders because "[t]he ‘appeal book’ will not be ready until Monday the 5th of February, 2000, as advised by the Clerk of the National Court".

No explanation whatsoever is given as to the reason or reasons for the delay in a prompt prosecution of the appeal after its lodgment on 9th of March 2000. There is also no explanation for the delay in filing the Entry of Appeal to the National Court within 40 days as required by s.226 of the District Courts Act (Chp.40)(hereinafter "the Act").

The Respondent, who appears to be an ordinary villager, seems to have been kept in the dark regarding the delay in the prosecution of the appeal. Because of that status, it seems she did not take any step to apply for a dismissal of the appeal for want of prosecution and or enforce the orders, the subject of the appeal and this application. So she was only waiting to be advised on the progress of the appeal. She was however, surprised when she was served with a sealed copy of the motion and affidavit in support of this application, which made it obvious that the appeal was not yet ready for hearing.

On the Court’s inquiry, the Applicant told the Court that he chose not to comply with the District Court orders because he did not accept them. Yet, he did not apply for and obtained an order staying the running of those orders and a period of 10 months passed without any compliance of those orders and a prompt prosecution of the appeal. By virtue of his filing and proceeding with this application, I am of the view that, the Applicant knew that without a stay order, he was obliged to comply with the orders, but he chose not to. That in my view, amounts to a deliberate decision not to comply with an order he was required to comply with in the absence of a stay order or a quashing of the same by the National Court. He was therefore, in continuos and deliberate contempt of the orders sought to be stayed.

The Relevant Law

In William Moses v. Otto Benal Magiten, (1st December 2000) N2023, I said at page 6 of the judgement:

It is now settled law that District Courts are not courts of record and are creatures of statute. Therefore their powers, functions and anything to do with them are governed by their enabling legislation, the District Courts Act (Ch.40) (hereinafter "the Act"). Consequently, all things done not in accordance with the Act have been held to be null and void and of no effect: see The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577.

Then at pages 6 to 7 of that judgement, I quoted in full the provisions of sections 220, 221, 226 and 227 of the District Courts Act (Ch. 40) and said these in respect of those provisions:

The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of section 220(2) make it clear that an appeal against a decision of a District Court should be lodged "with the Clerk of the District Court by which the conviction, order or adjudication was made". That must be done within a period of one month from the date of the decision appealed against. Then by virtue of section 221(2), sealed copies of the Notice of Appeal should be served on the respondent or respondents if more than one, also within a period of one month from the date of the decision appealed against.

Once an appeal has been lodged and served in the above manner, an appellant is obliged by section 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgment of his appeal. A failure to do so attracts the application of section 227, which renders the appeal non-existent. The combined effects of sections 226 and 227 in my humble view, is that, an appeal should be ready for hearing before the National Court within 40 days from the date of its filing. There would of course, be exceptions to that. If the delay in having an appeal heard within such a period can be excused by reason of say, the District Court depositions and or transcripts not being made available despite requests and follow ups on such requests by an appellant, or that the magistrates reasons for decision are not available, or that there is no judge to hear the appeal, or that the appellant is seriously ill and or such other factors exist which prevent an appellant from promptly prosecuting his appeal, the effect of non compliance of section 226 could be avoided.

I will assume for the purpose of this application that the conditions precedent to the right and lodgment of an appeal has been met in due compliance of the procedure laid by ss.220 and 221 of the District Courts Act. Whether or not those requirements have been met will be considered at the time of hearing the substantive appeal with the exception of considering that issue in the context of determining whether or not it is an appropriate case to grant a stay. This ruling is restricted to the application at hand, which requires a consideration of the provisions of section 226 and 227. In respect of that, I adopt what I said in relation to those provisions in the William Moses v. Otto Benal Magiten (supra) which appears in the above quotation in the last paragraph.

My brother, Justice Injia, in Sangam Mote v. Alkan Tololo [1996] PNGLR 404 at 405 gave this interpretation to s. 227 of the District Courts Act:

My interpretation of s 227 is that if and when the appellant files an entry of appeal within the prescribed time limit, it will have the effect of automatically staying the enforcement of the Court order appealed from. Likewise upon the institution of an appeal by way of the filing of a notice of appeal and recognizance on appeal under s 220, it should have the effect of automatically staying the enforcement of the Court order until the expiry of 40 days to allow the filing of an entry of appeal to take place. If within 40 days after the institution of an appeal ..., no entry of appeal is filed, the Court order becomes enforceable despite the filing of a notice of appeal and recognizance on appeal. In summary, the appellant has a grace period of 40 days from the date of institution of an appeal against enforcement of the Court order. Any enforcement proceedings instituted by the person in whose favour the judgment is entered or on the Court’s own initiative may amount to abuse of process of the Court.

In my view, there is no real difference between what His Honour said and what I said in William Moses v. Otto Benal Magiten (supra). They rather compliment each other. Combining what His Honour said with what I said would lead to this position. An appellant should get his appeal ready for hearing within 40 days from the date of its lodgment. He should then file is entry of appeal to the National Court within that period. Once an entry of appeal is filed in those circumstances, it automatically stays enforcement of the judgment or order appealed against. If an appellant does not file his entry of appeal in accordance with s.266 of the Act, he should be complying with the orders or judgment appealed against, as there would be nothing preventing it from being enforced or excuse its non compliance.

Both in William Moses v, Otto Benal Magiten (supra) and Rabaul Shipping Limited v. Rita Ruru (8th December 2000) N2022, I have expressed the view that, it is an abuse of process for a party to file an entry of appeal to the National Court without getting the appeal ready for hearing by or before filing the entry. I have also expressed the view in those cases that, if for whatever reason, an appellant is unable to get the appeal ready for hearing within the 40 days limit, he has the onus of providing a reasonable explanation for the delay. It is also incumbent upon him to apply to the court for a stay of the orders or judgment appealed against. He should make such an application the moment he comes to know that he will not get the appeal ready and file an entry within the 40 days. If an appellant fails to take such steps he does so at his own risk.

In The State v.Philip Kapal & Others [1987] PNGLR 302, His Honour, Hinchliff J reviewed the relevant authorities and principles on stay of orders or judgments up to the time of his judge and said at pages 304-305:

Certainly the traditional view has been that the court has an absolute and unfettered discretion as to the granting or refusing of a stay and ... as to the terms upon which it will grant it: see Attorney-General v Emerson [1889] UKLawRpKQB 190; (1889) 24 QBD 56; Becker v Earls Court Ltd (1911) 56 Sol Jo 206. As stated it will as a rule only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing: see Barker v Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769. There is no dispute that affidavits have not been filed in this application and Mr Tidor had good reasons for complaint. The case of Alexander v Cambridge Credit Corporation Ltd seems quite particular to New South Wales where appeals particularly in the commercial area, come at a great rate and I would not be anxious to break away from the traditional view and follow New South Wales. It seems to me that the new course taken by the Court of Appeal is not necessarily suitable for Papua New Guinea.

The traditional view again is that although the power to stay is not confined to closed categories of cases and is exercisable in any situation where the requirement of justice demands it, and although the court in its endeavour to ensure that the pursuit of the ordinary procedures by litigants does not lead to injustice, a stay of proceedings should not be lightly granted: see Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344; Ferris v Lambton (1905) 22 WN (NSW) 56.

Returning to Alexander v Cambridge Credit Corporation Ltd (at 694) I agree with the Court when it said, inter alia:

‘There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: ... The Court has a discretion whether or not to grant the stay, and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it....’

And at 695:

‘... although Courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case.’

More recently, the Supreme Court in Gary McHardy v. Prosec Security and Communication Ltd Trading as Protect Security (30th June 2000) SC646, reviewed all of the cases on stay applications including the above case and held that the former requirements to show "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" were restrictive. The Court was instead of the view that only guidelines can be provided without exhausting the list to guide and or assist an exercise of the discretionary power whether or not to grant a stay. It then set out the following guidelines at page 8 (in so far as is relevant for us), has factors that should be taken into account to determine that issue:

• Whether there has been any delay in making the application.
  
• Possible hardship, inconvenience or prejudice to either party.
  
• Nature of judgement sought to be stayed.
  
• The financial ability of the applicant.
  
• Preliminary assessment about whether the applicant has an arguable case on the proposed appeal.
  
• Whether on the face of the record of the judgement there may be indicated apparent error of law or procedure.
  
• The overall interest of justice.
  
• Balance of convenience.
  
• Whether damages would be sufficient remedy.
  

Although, the above cases related to stay of National Court orders pending appeal to the Supreme Court, the principles in my view equally apply to applications for stay of District Court orders pending determination of appeals to the National Court. This is because, in my view, the discretion whether or not to grant a stay of a District Court judgement or order pending determination of appeal is the same. The only difference is the Court before which the application is made.

I am also of the view that, whether or not an applicant has complied with the order sought to be set aside should be added to the above guidelines, especially, when there is a delay in making the application.

Present Case

In the present case, the Applicant lodged his appeal on the 9th of March 2000 against a decision of the Wau District Court made on the 1st of March 2000. The Deadline to get the appeal ready for hearing in accordance with s. 226 of the Act expired on or about the 19th of April 2000. The appeal was not ready for hearing by that time and an entry of his appeal to the National Court was not filed. There is no real explanation with the support of appropriate evidence for that failure. Also there is no explanation has to why the appeal could not be made ready for hearing for almost 10 months now. It now seems the appeal is ready because there is on file two copies of what appears to be an appeal book dated the 29th of December and filed on the 9th of January 2001. In the meantime, the Applicant was obliged to comply with the orders of the Wau District Court. He however, chose not to comply with it because he did not accept the orders. He did not apply for a stay of the orders promptly within the 40 days or soon thereafter until today.

In the course of the hearing of this application I expressed the view that, unless an order of a court is set aside, varied or quashed, a person who is obliged to do or not to do an act must comply with the order. He must do so first to demonstrate his respect for the court system and court orders, judgements and or directions before going to a court and asking it to excuse him or her from further compliance pending a determination of an appeal or challenge against the decision in question. This must be the case, especially in a situation where the party concerned fails to take steps promptly to avoid compliance before the need to do so catches up with him. At the same time, he must also demonstrate that he has taken all the steps that need to be taken to expedite a hearing of his appeal or challenge against the order or judgement. If he fails to take such steps, he is in my view in contempt of court. Any belated application for stay would amount in effect to an application to the Court to condone and sanction such a party’s contempt and to allow him to be further relieved from compliance. In these sorts of circumstances, I consider it inappropriate for a Court to act favourably toward such a person, when by his own conduct he has shown contempt for Court orders. Once a Court has made a decision and or orders, they ought to be respected and followed unless there is a proper stay order or it has been quashed or varied on appeal if the decision or order is subject to an appeal.

In this case, I found that the Applicant chose not to comply with the Wau District Court Orders because he did not accept them. I also found that, after lodging his appeal he did not take any steps to get the appeal heard without delay. He did not keep the Respondent informed of what was happening. He did not file an entry of appeal to the National Court in accordance with s.266 of the Act, but well outside the period stipulated. A closure examination of the appeal documents seem to cast some serious doubts as to the compliance of the procedure laid down by s. 220 (2) of the Act.

Further, in his notice of appeal, the Applicant raises only one ground after setting out the effects of the decision of the District Court. That one ground is expressed in these terms:

That the decision as to the father of the child by me was quence [sic] by the Wau District Court on Monday, 5th July, 1999 upon no evidence and that the same court can not make a ruling with a case which have been struck off.

Then by an attachment to his Entry of Appeal to the National Court filed on the 9th of January 2001, he seeks to add other grounds of appeal. That can not be possible because the appeal period as long expired. Also, he has not applied for and obtained leave of the Court to add such grounds. Even if such an application was made, I am not too sure whether it would have been a legitimate one and one that could have been granted. Accordingly, I do not consider those purported additional grounds of appeal as proper grounds of appeal.

This leaves me to consider the only remaining ground of appeal in the context of the factors set out by the Supreme Court as noted above. In the context of those factors, I found that there has been an inordinate delay in bringing the application. No evidence has been furnished to show what hardships, the Applicant will suffer if the stay is not granted. Indeed, the Applicant, as earlier mentioned has not complied with the orders. Instead, by deliberate choice he has decided not to test compliance of the orders so as to ascertain whether complying with them will be difficult or cause hardships or inconvenience to the Applicant. A perusal of the documents constituting the appeal books, show that the Applicant is employed and earns about K100.00 a fortnight. The order is for him to make a one off payment of K150.00 for confinement expenses and K50.00 per month in maintenance. On these facts, there can hardly be any inconvenience or difficulty in complying with the orders for the Applicant. Also on a perusal of the decision, I can not see any apparent error of law or procedure. I am also of the view that the ground for appeal is one that does not present an arguable case. The law is very clear, only upon a dismissal of a cause of action following a trial on the merits can operate as a bar to any further action over the same cause of action. In this case the Applicant is claiming that, the Respondent’s claim for confinement and maintenance was struck out earlier. That could not operate has a bar to further action because it was not a dismissal following a full trial on the same cause of action. I further note from the reasons for judgment by the District Court that, the Applicant claimed the Respondent also went around with other men apart from him and anyone of them could be the father of the illegitimate child, but he failed to call any evidence to substantiate that claim.

One final factor I took into account was the fact that the Respondent was entitled to the fruits of her judgement without unnecessary delay unless it was properly stayed. Without any stay of the judgement or orders, the Respondent was kept out of the benefits of the judgement or orders and the Applicant has been in deliberate contempt of the orders he now belatedly wants to have stayed.

Taking into account all of the above, I refused the application to stay and direct the Applicant to fully comply with the orders by or before the 1st of February 2001, when I fixed the substantive appeal for hearing. The hearing date will have to be brought forward in view of this circuit ending by the 26th of January 2001.
__________________________________________

Applicant/Appellant in Person
Respondent in Person