Panga v Independent Staff of Papua New Guinea [2015] PGNC 231; N6135 (6 August 2015)

N6135

PAPUA NEW GUINEA
[IN THE NATIOAL COURT OF JUSTICE]

OS 303 OF 2015

BETWEEN:

WILLIE PANGA
Plaintiff

AND:

THE INDEPENDENT STAFF OF PAPUA NEW GUINEA
Defendant

Mt. Hagen: Frank, J
2015: 6th August

PRACTICE & PROCEDURE – Application for extension of time to lodge appeal to – Delay in prosecuting application – Lack of satisfactory explanation for delay – Existence of an arguable ground and demonstration of no prejudice to defendant – Justice of the case favours grant of extension.

Cases Cited:

Seravo v Jack Bahafo (2001) N2078
In the Matter of an Application by Linah Edward (2005) N2804

Counsel:

Mr. K. Peri, for the Plaintiff

RULING ON APPLICATION

6th August, 2015

1. FRANK J: This is an application by the plaintiff for an extension of time within which to file an appeal against his conviction by the Minj District Court on 2nd March 2015 ("Orders").
   
2. The plaintiff applied by way of an Originating Summons and a Notice of Motion, both filed on 4th June 2015 seeking the same relief. The application is supported by his affidavit sworn on 18th May 2015 and filed on 4th June 2015 ("Affidavit"). In his Affidavit, the plaintiff says, amongst others, that:
   
   1. He was the driver of a Renault truck ("vehicle") when it collided with another vehicle, a white Toyota Land cruiser;
      
   2. He was charged for driving with undue care and attention and convicted on 2nd March 2015.
      
   100. He could not have seen a lawyer earlier to file an appeal against his conviction because the reasons for his conviction ("Reason") was not made available by the Clerk of Court until 28 April 2015.
        
   4. It was only when a copy of the Reasons was made available that his employer instructed his lawyers to appeal against his conviction;
      
   5. His conviction was unsafe and against the weight of the evidence, and sets out in a draft Notice of Appeal his proposed grounds of appeal.
      
3. The application was made ex parte in accordance with section 231 (b) of the District Court Act Ch. No. 40 ("Act").
   
4. In an application for extension of time under section 231 (b) of the Act, this court has previously held that an applicant must satisfy the following:
   
   1. There is a reasonable explanation for the delay in coming within the time period prescribed by the Motor Vehicles (Third Party Insurance) Act Ch. 295:
      
   2. A cause of action to be pursed against the defendant is disclosed: and
      
   3. No prejudice has or will be occasioned by the delay and not coming within the time period prescribed by the Act: Visio Seravo V Bahafo (21st March 2001), N2078
      

5. The following factors were also considered as relevant to the exercise of discretion whether or not to allow the application:

1. The extent of the delay:
   
2. Whether the applicant has complied with the District Court Order proposed to be appealed against:
   

100. Possible hardship, inconvenience or prejudice to either party:
     

4. The nature of the judgement sought to be appeal against:
   
5. The financial ability of the applicant:
   
6. Whether the applicant has been let down by another person, eg, a lawyer, in whom trust was reasonably placed:
   
7. Whether the applicant has an arguable case on the proposed appeal: and
   
8. The interests of justice: In the Matter of an Application by Linah Edward (11 February 2015)N2804
   

6. Being guided by these considerations, the issues for my determination are:

1. Has there been reasonable explanation for the failure to file an appeal within the one month period, and for the delay subsequent to it?
   
2. Whether there is an arguable case?
   

100. Whether the respondent to the proposed appeal would be prejudiced by the grant of extension of time? And
     

4. Having regard to (a), (b) and (c), whether the justice of the case favour the grant of the application.
   

7. There has been significant delay on the part of the plaintiff in taking any step at appeal and thereafter to apply to seek an extension of time.

8. The plaintiff, from his reference to his need to obtain a copy of the Reasons, implies that he needed the Reasons before he could take steps towards filing an appeal. There is no evidence of the steps, if any, that he took immediately after his conviction and before 28th April 2015 of attending upon the District Court to search the court file or to request for a copy of the Reasons or the court depositions if he considered these necessary for him to determine whether or not to file an appeal against the Orders, and any difficulty he faced in that regard. The certificate of Conviction which is Annexure "A" to the Affidavit are both dated 2nd March 2015, which is the date the Orders were made. On the face of these documents, these documents presumably existed as at 2nd March 2015. The Reasons, however, is not dated. The one month within which to appeal was allowed to expire without the plaintiff taking any step to appeal.

9. After obtaining a copy of the Reasons, the plaintiff's employer engaged the services of lawyers in this application. The evidence does not indicate when those instructions were given to his lawyers in this matter.

10. At the time when the plaintiff deposed to his Affidavit, one month and two weeks had lapsed since the expiry of the one period within which he should have filed an appeal against the Orders. It took another two weeks after his documents were signed before this proceeding was filed.

11. Had he raised the matter with his employer immediately after his conviction, the default and delay might have been avoided.

12. I am not satisfied on the evidence that a reasonable explanation has been provided by the plaintiff for the failure and delay.

13. The plaintiff proposes six grounds of appeal in his draft Notice of Appeal annexed to his Affidavit. With respect to the first of his proposed grounds of appeal, the plaintiff says that there was no witness who identified him as the driver of the Vehicle. According to the Reasons, the Vehicle was followed to the premises of IPI in the belief and understanding that the Vehicle was owned by IPI where the plaintiff admitted to being the driver of it. The plaintiff confirms this at paragraph 4 of his Affidavit. In my view, these facts and circumstances do not indicate an arguable ground or reason to challenge the magistrate's finding that the plaintiff was the driver of the Vehicle.

14. The other proposed grounds of appeal of the plaintiff deal with the exercise of discretion and the weight given or the lack of it between the competing evidence adduced for the Informant and the plaintiff. In the absence of the depositions, I do not express an opinion or view on each of those proposed grounds.

15. There are, however, two matters not raised by the plaintiff which, on the face of the Certificate of Conviction and the minute of the Orders, suggest that it is arguable that the magistrate had exceeded his powers in the penalties he imposed on the plaintiff.

16. The magistrate convicted the plaintiff for the offence of driving without due care and attention contrary section 17 (2) of the Motor Traffic Act Ch. No 243 ("MTA").

17. The penalty for an offence committed against section 17 (2) of the MTA is a fine not exceeding K500.00.

18. The magistrate imposed a fine of K500 and further ordered that the plaintiff be imprisoned for four months in hard labour if he defaults in paying the fine. These appear on the face of the Certificate of Conviction and the minute of the Orders.

19. I am not aware of any power vested in the magistrate to impose the enforcement or default penalty of four months under the MTA for an offence committed against section 17 (2) of the MTA. Under sections 168 (1) and (3) and 201 of the Act, a District Court Magistrate is empowered to impose imprisonment, to enforce an order for payment of a fine or costs in excess of K200, for a period not exceeding 60 days. The magistrate, in imposing imprisonment of four months as an enforcement penalty, exceeded his powers under these provisions.

20. The magistrate also suspended the plaintiff's driver's licence for six months as of 2nd March 2015. That suspension is still current. The magistrate appears to have relied on section 36 of the MTA as the source of his power to suspend the plaintiff's driver's licence, as the Certificate of Conviction and the minute of the Orders states, amongst others, that the "Defendant's driving license is also suspended for Six (6) months as of today .(Sect.36 MTA)"

21. Section 36 of the MTA provides:

36. Discretionary suspension, disqualification, etc.

(1) Subject to Section 35, the court that convicts a person of an offence against this Act may, in addition to any other punishment to which the person is liable under this Act in respect of the offence –

(a) If he holds a licence or a permit under Section 11-

• (1) Suspend the licence or permit for such time as the court thinks proper and, if the court thinks fit, also direct that no licence and no such permit be granted to him during such further time after the expiration of the licence or permit as the court thinks proper: or
  

(ii) cancel the licence or permit and, if the court thinks fit, declare him to be disqualified from obtaining a licence or such a permit for such time as the court thinks proper: and

(b) If he does not hold a licence or a permit under Section 11-direct that no licence or permit be granted to him during such time as the court thinks proper.

(2) A person whose licence or permit under Section 11 is suspended is, during the period of suspension, disqualified from obtaining a licence or permit.

22. Section 11 of the MTA concerns and applies to the issue of a permit to a primary producer or a motor vehicle dealer who owns an unregistered motor vehicle.

23. Section 36 of the MTA therefore does not apply to a charge and conviction under section 17 (2) of the MTA.

24. In the result, the magistrate had no power to suspend the driver's licence of the plaintiff after convicting him of a charge under section 17 (2) of the MTA.

25. The excesses in the penalties imposed by the magistrate raise arguable grounds and are factors which favour the exercise of discretion in favour of the grant of the application.

26. The plaintiff is about 55 years old. He has been driving for more than 38 years. He is employed by Mountain Transport Limited, with whom he has been employed for the last four years. The suspension affects his livelihood in that he is not able to drive during the period of suspension of his driver's licence. He is prejudiced by the suspension. On the other hand, the magistrate has discharged its function in terms of determining the charge laid against the plaintiff. Nothing further is required on its required on its part or that of the informant.

27. The excesses beyond the magistrate's powers in respect of the penalties imposed appear on the face of the District Court records. No further material or evidence would be required to address and establish a ground of appeal that is based on these records. No prejudice will be occasioned on the magistrate or the Informant by the failure of the plaintiff to file an appeal within time and the delay in making this application, should the extension of the time to do so be granted.

28. In the circumstance, the justice of the case requires that the discretion of this Court be exercised in favour of the grant of the plaintiff's application. I therefore grant an extension of time to file an appeal within 14 days of these orders.

29. The orders are:

(a) The time within which to file an appeal against the Orders is extended to 12:00 noon on 20th August 2016.

(b) Each of the time periods for compliance with the conditions precedent to the right of appeal against the Orders, prescribed by Sections 220,221, and 222 of the Act is to be reckoned by reference to the date when an appeal is filed pursuant these orders.

____________________________________________________________
Warner Shand: Lawyer for the Plaintiff/Applicant