Junior v Posai [2018] PGNC 163; N7252 (11 May 2018)

N7252

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 199 of 2018

JOHN KAONA JUNIOR

V

ANDREW POSAI
Kimbe: Miviri AJ
2018: 11^th May

PRACTISE & PROCEEDURE - Application for leave - appeal out of time - district court appeal - no proper basis in law - leave refused - application denied - costs will follow event.

Cases cited:

Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security (2000) SC 646

In the matter of an application by Linah Edward [2005] PGNC 144; N2804

The State v Colbert, [1988] PGSC 10; [1988-89] PNGLR 138

New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522

Counsel:

F Kua, for Plaintiff/Applicant

Defendant no appearance

RULING

11^th May, 2018

1. MIVIRI, AJ: This is the ruling of the court on an application by originating summons by the plaintiff who seeks orders pursuant to Section 231 of the District Courts Act that he be granted leave to file appeal out of time.
   
2. Section 231 dispensing with Conditions Precedent reads;
   

“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 reasonable 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.

3. There are conditions set out by law which must be fulfilled before the appeal against a decision of the District Court is properly before the National Court. And these are contained under Part XI Appeals from Decisions of District Court. The applicant if he is aggrieved by the decision of the District Court may appeal to the National Court.
   
4. He should file a notice of appeal including entering into a recognizance on appeal reading Section 219 and 220 of the Act within one month from the date of the decision. And copies of which shall be served on the respondents to the appeal including the registrar of the National Court.
   
5. Within 40 days after the institution of the appeal the appellant shall enter the appeal for hearing on a date and time to be fixed by the Registrar of the National Court. If this is not done then the magistrate has authority to enforce the conviction or order or adjudication as if it had not been appealed against Section 227 of the District Courts Act.
   
6. What the applicant is asking is permission or authorization or leave to dispense with these preconditions in particular leave to file his notice of appeal out of time. Allow him to file his appeal even though he is out of time dispense with what the law sets as time limit in which to file his appeal. There is discretion under Section 231 which must be exercised judicially. And all exercise of discretion invokes facts upon which form the basis to discharge.
   
7. The test in my view is in Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security (2000) SC 646:
   
   1. Whether there has been any delay in making the application;
   2. Possible hardship, inconvenience or prejudice to either party;
   3. The nature of the judgement sought to be stayed;
   4. The financial ability of the applicant;
   5. Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
   6. Whether on the face of the record of the judgement there maybe indicated apparent error of law or procedure;
   7. The overall interest of Justice;
   8. Balance of convenience;
   9. Whether damages would be sufficient remedy.
      
8. I determine this applicable here following similar position taken in In the matter of an application by Linah Edward [2005] PGNC 144; N2804.
   
9. The applicant was defendant in the Kimbe District Court referenced DC 32/2017. The plaintiff was one Andrew Posai who had obtained an ex parte order restraining the applicant and another from entering his land portion 2453C Patagalamo Morokea WNBP. And secondly both defendants were restraint from dealing with the land for business purposes or any other manner of activity. And both defendants were to keep the peace towards the complainant and his family. Any breach would be imprisonment for two months. It was dated the 20^th April 2017.
   
10. In his affidavit filed 29^th March 2018, applicant deposed that he received the summons, it was when he was attending to a death in his family at Talasea. He could not attend on the 20^th April 2017 when the court issued the orders in his absence. And could not afford a lawyer. He has not shown anything else from this affidavit other than these.
    
11. I find on the affidavit that he has filed that there was delay on his part in filing the appeal. It was his own making. He was served the summons he was attending a death in the family. It could not be lasting forever. He did not make any real attempt to properly bring the matter to court. He needed a lawyer he made no attempt to get a lawyer despite acknowledging that he had basis in law to bring against the matter.
    
12. If leave was granted it would inconvenience the other party more who was fair in serving summons of the proceedings upon the applicant who chose to do nothing until it became clear that he was effected by the matter. Further it was his choosing as where he is now with the consequences of those proceedings at first instance. He knew his rights but did nothing it would inconvenience the other party to give him leave to appeal out of time.
    
13. There is nothing as to the nature of the Judgement sought to be stayed it is basically restraining entry into the land of the complainant in that matter dealing with the land and keeping peace. There is nothing on the basis of this to sway that leave should be granted to extent time to appeal.
    
14. The financial ability of the applicant is with respect to the institution of the appeal and not as to the subject of the Judgement the land that is not apparent and clear on the face of it from affidavit he has filed. Which leads that preliminary assessment of the case is that there is no arguable case on the part of the applicant to grant leave will not be serving any utility as there is no arguable case for the applicant in the matter. This includes the fact that there is no apparent error on the face of the judgement appealed against, including procedure.
    
15. The overall interest of Justice is that the matter be not granted leave to dispense with the condition under Part XI Appeals from Decisions of District Court, District Courts Act. Overall interest of Justice does not require that leave be granted to file the appeal out of time.
    
16. The balance of convenience also does not favour that leave be granted to file appeal out of time here. He was not all alone at that death until the time to appeal expired. He slept over his rights it is not for the court to make good what was due to him which he saw fit not to take up. He either attended the death for the whole month or gave some time to his appeal. He chose not to the court will not take his place in that matter nor will the court on that basis be just against the other party to so grant.
    
17. He is applying to invoke the discretionary powers of the court it is not in the interests of justice to so grant. There are no cogent and convincing reasons and exceptional circumstances shown or that some substantial injustice is manifest or that the case is of special gravity and there are clear legal grounds as in a review to invoke discretion here: Colbert, The State v [1988] PGSC 10; [1988-89] PNGLR 138.
    
18. It is not necessary to consider whether damages is adequate remedy in the light of the fact that his affidavit clearly shows that he slept over his rights and it is not for the court to step into his shoes to set his course in the dispute for him. He chose his destiny no fault of the other party or the court. He is not likened to New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522 where leave was granted because it had merit there were cogent and convincing reasons and exceptional circumstances in favour of granting leave. It was brought on promptly. That is not the case here deduced from the affidavit of the applicant filed in support.
    
19. Viewed another way he has not come with clean hands to invoke equity. Accordingly it is the judgement of the court in all the circumstances that leave is refused and application is denied.
    
20. Costs will follow the event.
    

Orders Accordingly.

__________________________________________________________________

Kua Lawyers: Lawyer for the Plaintiff/Applicant

Nil Representation for the Defendant