N5295

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 366 OF 2012

BETWEEN:

MOTOR VEHICLES INSURANCE LTD
Plaintiff
 
AND:

SIMON GIGMAI
First Defendant

AND:

ANDREW KRONDO
Second Defendant

AND:

APO MONDO
Third Defendant

AND:

JOSHUA BAUNDO
Fourth Defendant

AND:

KORUL YALOMBA
Fifth Defendant

AND:

PETRUS THOMAS
Sixth Defendant

AND:

ALOIS PAPA
Seventh Defendant

Mount Hagen: Poole, J
2013: 20 June

PRACTICE – District Court Act section 231 – leave to file Appeal out of time – Dispense with conditions precedent – District Court handing down decision ex parte without notice – factors for exercise of Court's discretion – "decision" of District Court must include reasons for decision as well as formal Order of Court – Section 220(1) "pronounce a decision" means express findings of reasons for judgement – Exercise of Court's discretion – Circumstances of case. 

Cases cited:

Linuits v Rumints [1990] PNGLR 123
Samson Decany v Noah Taia N2316

Counsel:

Mr. K. Peri, for Plaintiff
Mr.P. Kopunye, for Defendant

20th June, 2013

1. POOLE, J: Introduction: The Plaintiff, by Summons and Motion, applies to the Court, under section 231 of the District Courts Act, for Leave to file Notices of Appeal out of the time prescribed under the Act for Appeals from a decision of the District Court.

2. The law relevant to this application is to be found, for the most part, in the provisions of the Act itself.

3. Section 231 of the Act provides:

 231. Dispensing with conditions precedent 

 The National Court may –

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and

(b) on application made ex parte by the party appealing –extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act. 

4. The District Court Act provides certain set times for Appeal procedures; notably in section 220, which requires an appellant to lodge a Notice of Intention to Appeal "within month after the day when the decision" to be appealed from is pronounced.

5. Section 221 requires the Appellant to serve the notice on the Respondent to the appeal and on the Registrar of the National Court.

6. The Act also requires an Appellant to enter into a recognizance within a month of the decision appealed from and to forward it "without delay" to the Clerk of the District Court which made the original decision, but this is not a condition precedent to, but follows on the institution of the Appeal. (see Linuits v Rumints [1990] PNGLR 123).

7. Finally, section 226 requires an Appellant to enter the appeal for hearing within 40 days after "the institution of the Appeal".

8. The Facts which gave rise to this application are not in dispute.

9. On 17th November 2011 the Kundiawa District Court directed the parties to file submissions and ruled that the matter would be tried by affidavits and not oral evidence. Submissions were filed and the matter was reserved for decision.

10. On the 8 February 2012, the District Court handed down its decision in the absence of either party. The court had not informed the parties that it was listing the matter for decision.

11. On 20th March 2012 (by which time the Appeal period referred to in sections 220 and 221 of the Act had passed), lawyers for the Respondent informed the Applicant's lawyers that, on, an unspecified date, the District Court had made a ruling. Lawyers for the Applicant made enquiries of the District Court at Kundiawa and were informed, on 22nd March 2012, that the Court had made a decision and written reasons were available for collection.

12. At this time the highway was blocked by flooding and wash-out. The Lawyers for the Applicant tried to obtain the judgement on the 27th March 2012, but were unable to obtain a copy to consider until 1st May 2012.

13. Having obtained a copy of the District Court Judgement, the Applicant's lawyer considered it and sought and obtained instruction from their client. All papers necessary for this Application were prepared by 6th June 2012 and the Application filed on 20th June 2012.

14. The Court records are unable to shed light on the delay in listing this for hearing, but show that there was only one adjournment before the matter was heard.

15. For an Application such as this to succeed, the Applicant has to satisfy the Court that (section 231(i)) it "has done whatever is reasonably practicable to comply with the provisions of (the) Act."

16. In considering if the Applicant has complied with this obligation, the Court has to consider:

 (i). The extent of the delay;
 (ii). Whether there is reasonable explanation for the delay;
 (iii). Whether the proposed Notice of Appeal reveals an arguable case; and 
 (iv). Whether, if the Application is granted, the Respondent would be prejudiced.

17. In this case, the facts require the Court to consider the question of delay in two parts.

18. The first part to be considered is the reason for delay in strict compliance - in other words, why did the Applicant not file its Notice of Appeal "within one month after the day on which the decision was pronounced"?

19. The answer to that is clear – because the District Court at Kundiawa had neglected to inform the parties that it was going to pronounce the decision, the Applicant did not know, until after the Appeal period had expired, that a decision had been made. A party, in such circumstances, should not be disadvantaged because of administrative inefficiency in a Court registry.

20. The second aspect of delay to be considered is the delay which occurred between the 22nd March, when the Applicant's lawyer knew a decision was made, to the 20th June, when the Application and supporting documentation was filed.

21. The Applicant says that it was unable to obtain a copy of the judgement, although it was informed of the Orders, until the 1st May 2012. The explanation for this is that, for some time, Tine creek had washed out the road. The Clerk of the Court was asked, on 27th March 2012, to furnish a copy of the judgement to an agent for the Applicant but this was not done, and the Applicant's lawyer did not get a copy of the text of the judgement until 1st May 2012 – some 6 weeks after he was informed of the Orders.

22. Having obtained the text of the judgement and considered if its contents contained arguable grounds of Appeal, the applicant's lawyer finally obtained instructions to proceed with the Appeal on the 28th May 2012, and he filed the Application on 21st June.

23. The first question, therefore, to be answered is, has there been delay. The answer, clearly, is yes.

24. The second question is whether there is a reasonable explanation for this delay – the delay being from the time the Applicant was aware the District Court had given it's decision.

25. In answering this question, one must first consider whether the phrase, in section 220 of the District Court Act, "the decision is pronounced" means simply the formal Order of the Court (in this instance this was confined to making of awards for damages without any statement of formal findings), or the publication of the reasoning based on findings of fact and applications of the law to those facts, which constitute the adjudication upon which the Orders are based.

26. So as to ensure that a Notice of Appeal is not misleading, vexatious or prejudicial to the Respondent, an appellant must state clear and cogent grounds of Appeal so that the respondent and Court are able to understand the issues in the adjudication which the appellant is raising for consideration. An appellant can not simply appeal from Orders it does not like – it must be able to state where, in the reasoning which gave rise to the Orders appealed from, it says the Court reached wrong conclusions of fact and/or misapplied the law to those facts.

27. If a party is not informed of the process of findings and reasoning by which a Court reached the decision expressed in its Orders, it is unable to consider whether to appeal.

28. For this reason, I rule that to "pronounce a decision" within the meaning of section 220(1) of the District Court Act means to express the findings and reasons for judgement which formed the basis of the Orders appealed from. 

29. In considering the reasons given by the applicant's lawyer for the time it took to obtain the text of the judgement after he was are of its existence, I take into account the fact that it eventually required the lawyer's clerk to travel from Mt. Hagen to Kundiawa to obtain a copy of the judgement, because the Clerk of the Court at Kundiawa failed to forward it.

30. This means that time for the applicant to appeal ran from 1st May 2012, not from the 8th February 2012.

31. This evidence, and that of the disruption to the road access, was not challenged and is, on that point, unchallenged and not improbable. I accept it as an explanation for the applicant not getting the text of the judgement until 1st May 2012.

32. This, however, is not the end of the question of delay, because the Application for Leave was not filed until 2st June 2012, which was seven weeks after the applicant received the text of the judgment.

33. On the face of it, there is a delay for which a sufficient reason must be given if the Court is not to, on that basis, disallow the application.

34. The Applicant's lawyers evidence is that he was unable to enter an application without instructions from his client's Claims Manager, Mr Robert Doko, and that man was in Australia on the client's business in proceedings to recover a very large sum of money from an account in country New South Wales. For this reason it was not until 28th May that he received instructions to act. This evidence is, also, not challenged or contradicted. It is not improbable and I accept it as an explanation for the delay in obtaining instructions from a large institutional client.

35. Finally, is the explanation for the delay from 28th May, until 26th June 2012 when the Application was filed, reasonable? While I do not doubt that, ideally, the documents could have been prepared and filed more speedily, I take into account that the fact that preparation of Court documents in acceptable form is not as rapid in Mt Hagen as in Port Moresby. I also note the delay which can occur between leaving documents for processing by the registry and receiving the processed documents back from the registry.

36. Are these factors sufficient to cause the Court to exercise its discretion on whether to accept the reasons given for the delay as reasonable?

37. The terms of section 231 extend to the Court the discretion to dispense with the condition precedent relating to time limits "if the appellant has done whatever is reasonably practicable to comply" with the Act. If there were any intention to make the conditions immutable and utterly inflexible, Parliament would not have legislated in the terms of section 231 to give the Court, on sufficient reasons being shown, power to dispense with conditions precedent to the exercise of a right of appeal. (see Samson Decany v Noah Taia N2316)

38. Such discretion, of course, must be exercised in accordance with proper legal principals, the most important of which is that it must be exercised in the interests of justice (see section 158(2) of the Constitution).

39. The circumstances stated above are relevant to the question of whether the Court should exercise its discretion to allow the Application. In giving paramount consideration to the dispensation of justice, I exercise my discretion and allow that, so far as delay is concerned, the applicant has done what was reasonably practicable to comply with the provisions of the Act.

40. The third factor for the Court to consider is deciding if it should grant an Application to dispense with a condition precedent is whether the proposed Notice of Appeal reveals an arguable case.

41. The District Court decision is before the Court in evidence and so is the Notice of Appeal. I have considered both and I am of the view that the Notice of Appeal plainly shows clearly arguable grounds of Appeal. It complies in form with the requirements for a Notice of Appeal and, without going in detail into the merits of the substantive argument, I accept that it is worthy of consideration for determination.

42. The fourth and final factor which the Court has to determine in deciding if it should dispense with a condition precedent is whether the Respondents will suffer any undue prejudice if the Application is granted.

43. The District Court included, in its awards, an Order for interest at 8%. This is, by any measure, a high yield on money and, in my view, the fact that it continues to accrue compensates the Respondents for any material prejudice they may suffer. As the awards have not yet been paid, there is no question of the Respondents being prejudiced by having to repay money they have received and spent.

44. I do not find that the grant of Leave under section 231 would prejudice the Respondents to a degree necessary to refuse the exercise of the Court's discretion to grant the Application.

45. In summary, I find that the applicant has an arguable draft appeal, that the Respondents would not be unduly prejudiced if the Court grants the Application and there is sufficient grounds, in the circumstances of this case, for the Court to exercise its discretion and rule that there is a reasonable explanation for the Applicant's delay in making its Application sufficient to dispense with compliance with the conditions precedent to the Applicant exercising its rights of appeal from the District Court decision of 8th February 2012.

46. Accordingly I have formed the opinion, for the purposes of section 231(a) of the District Court Act, that the Appellant has done that which was reasonably practicable to comply with the provisions of the District Court Act.

47. The Orders of the Court are:

1. The conditions precedent set forth in Part XI of the District Court Act for instituting an Appeal from the Decision of the District Court at Kundiawa on the 8th February 2012 in DC Nos 29 to 35 inclusive of 2010 are dispensed with.

2. The Applicant/Plaintiff has Leave to file and serve Notices of Appeal provided it does so within 14 days of the date of this Order. 

3. Costs of this Application shall be costs in the cause. 

 4. Time is abridged. 

_________________________________________

Warner Shand Lawyers: Lawyers for the Plaintiff
Kopunye Lawyers : Lawyers for the Defendant