Apelis v Tevlone [2009] PGNC 212; N3896 (17 July 2009)

N3896

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 75 OF 2009

BETWEEN:

LEONG APELIS on Behalf of Himself & Six Ors
Appellants

AND:

PAUL TEVLONE
First Respondent

AND:

TELIKOM PNG LIMITED
Second Respondent

Waigani: Gavara-Nanu J.
2009: 16 & 17 July

PRACTICE AND PROCEDURE – Appeal – District Courts Act, Chapter No. 40; s. 227 – Filing of entry of appeal within 40 days after the institution of the appeal– Effect of filing entry of appeal – Automatic stay of the enforcement of the orders appealed against.

Cases cited:
Lucy Ande –v- Anson Isingi (2001) N2206
Rabaul Shipping Limited –v- Rita Ruru (2002) N2022
Sangam Mote –v- Alkan Tololo [1996] PNGLR 404
Sunga Andrew v. Helen John (2001) N2031
William Moses v. Otto Benal Magiten (2001) N2023

Counsels:
B. Nouairi, for Respondent/Appellants
N. Asimba, for Defendants

1. GAVARA-NANU J: The appellants who are employees of Telikom PNG Limited ("the second respondent") are applying to stay the orders given by the Port Moresby District Court on 8 May, 2009, which set aside the interim restraining orders obtained by the appellants to prevent the respondents from evicting them from their respective institutional accommodations.

2. The restraining orders were taken out by the appellants after they were terminated from their employment with the second respondent, for allegedly inciting members of the Telikom Engineering Association to go on strike. When the restraining orders were taken out, no substantive action was instituted against the respondents by the appellants. I see nothing improper or irregular in this, because the appellants could have been evicted from their institutional accommodations following their termination. In my view, the situation the appellants were in warranted them obtaining the restraining orders before instituting the substantive action.

3. The appellants were terminated on 4 December, 2008. On 2 January, 2009, they obtained the restraining orders. On 22 January, 2009, they filed a Complaint and an Information against their termination pursuant to s. 63 (1) of the Industrial Relations Act, Chapter No. 174. This was the substantive action.

4. As noted, on 8 May, 2009, the restraining orders obtained by the appellants were set aside by the Port Moresby District Court. On the same day, the appellants filed a notice of appeal and the entry of appeal and on 18 May, 2009, they filed the Recognizance on appeal.

5. The application to stay is made pursuant to a notice of motion filed on 18 May, 2009. The appellants in making this application, rely on O 13 r 21 of the National Court Rules, alternatively, on the effect of s. 227 of the District Courts Act, Chapter No. 40, which is that, the entry of appeal filed by the appellants automatically stayed the enforcement of the orders appealed against.

6. In respect of the alternative remedy under s. 227 of the District Courts Act, the section requires an appellant to enter an appeal for hearing within 40 days after the appeal is instituted. If the appeal is not entered within 40 days of the appeal being instituted or the notice of appeal being filed, a Court or a Magistrate may enforce the conviction, order or adjudication, as if it had not been appealed against.

7. The appellants elected to press the alternative remedy under s. 227 of the District Courts Act and argued that the entry of appeal they filed automatically stayed the enforcement of the orders they are appealing against. For this contention, reliance was placed on the decision by Injia, J (as he then was) in Sangam Mote –v- Alkan Tololo [1996] PNGLR 404. His Honour in that case held that if an entry of appeal is filed within 40 days from the filing of a notice of appeal as required under s. 227 of the District Courts Act, the entry of appeal will automatically stay the enforcement of an order appealed against. In Sunga Andrew v. Helen John (2001) N2031, Kandakasi J, adopted the same view. However in Lucy Ande –v- Anson Isingi (2001) N2206, Jalina J, adopted a different view. In that case, his Honour held that whether an entry of appeal for hearing is filed within the time stipulated under s. 227 of the District Courts Act, or not, an appellant still has to apply for stay of the enforcement of the orders appealed against. His Honour said a stay may be sought under O 13 r 11 of the National Court Rules or O 13 r 21 of the National Court Rules.

8. In my respectful view, the plain reading of s. 227 of the District Courts Act, is that, if an entry of appeal is filed within 40 days of filing or instituting an appeal, the entry of appeal would automatically operate to stay the enforcement of the order appealed against, and a Court or a Magistrate would by operation of law (s. 227) be automatically prohibited or stopped from enforcing the order appealed against. However, such stay would in my view depend further on whether the appeal is ready for hearing, when an entry of appeal is filed, which is the purpose of an entry of appeal being filed. Thus, if an entry of appeal is filed without the appeal being ready for hearing, the issue of whether the order appealed against can be stayed would be subject to the discretion of the Court. See, Sunga Andrew v. Helen John (supra). I hold this view on the basis that, filing of an entry of appeal would envisage that the appeal is ready for hearing. Thus, if an entry of appeal is filed without the appeal being ready for hearing, the filing of the entry of appeal may amount to an abuse of process, thus render s. 227 of the District Courts Act open for abuse. See, Sunga Andrew v. Helen John (supra); William Moses v. Otto Benal Magiten N23023 and Rabaul Shipping Limited v. Rita Ruru (2001) N2022.

9. The combine effect of, ss. 224, 225 and 226 of the District Courts Act, in my view makes it plain that filing of an entry of appeal under s.227 is to indicate that the appeal is ready for hearing. See, also Sunga Andrew v. Helen John (supra). Of course in practice, appeals are rarely ready, if at all, for hearing within 40 days of the appeal being filed. Thus, although the effect of s. 227 appears plain, it may be a good and safe rule of practice for an appellant to apply for a stay of the order appealed against, even after an entry of appeal is filed, albeit, it is not a requirement or necessary in law.

10. The end result of the view I hold is that, I agree with the views adopted by Injia, J, (as he then was) in Sangam Mote –v- Alkan Tololo (supra) and Kandakasi J, in Sunga Andrew v. Helen John (supra) viz, once an entry of appeal is filed, it would automatically operate to stay the enforcement of the order appealed against.

11. If a respondent felt that the filing of an entry of appeal is not done in good faith because the appeal is not ready for hearing, the respondent can apply to have the appeal dismissed for abuse of process or if there is delay in the appeal being ready for hearing, the respondent can apply for the appeal to be dismissed for want of prosecution. It would then be up to the Court, in the exercise of its discretion to decide whether to dismiss the appeal or not, depending on the circumstances of the case.

12. The respondents have also argued that this appeal is misconceived because s. 63 (1) of the Industrial Relations Act, upon which the appeal is based creates or provides for penalties of criminal nature, therefore this should be a criminal appeal. In my view, this is a matter which may be raised at the hearing or the respondent may elect to raise it some other way, such as in an objection to competency of the appeal. At this stage, it is in my view premature to raise the issue.

13. As to the argument that the respondents would be prejudiced because the appellants have been over paid, again, I am of the view that it is premature to raise the issue at this stage. It may become relevant at the substantive hearing.

14. For the foregoing reasons, I formally grant the alternative relief under s. 227 of the District Courts, Act, viz, the entry of appeal having been filed, the enforcement of the orders appealed against are automatically stayed.

15.The respondents will pay the appellants’ costs.

______________________________________________
Bill N Nouairi Lawyers: Lawyer for Respondent/Appellants
Corporate Legal Services Telikom PNG Limited: Lawyer for Defendants