Lupin v Bonava [2018] PGNC 4; N7078 (25 January 2018)

N7078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 46 OF 2017

BETWEEN:
GEORGINA LUPIN
Appellant

AND:
BERNARD BONAVA
Respondent

Kokopo: Anis J
2017: 13^th December
2018: 25^th January

NATIONAL COURT APPEAL – appeal against enforcement of maintenance order - sections 1 and 4 of the Maintenance Orders Enforcement Act Chapter No. 279 discussed - whether section 4 prevents enforcement of maintenance orders against women

EXERCISE OF DISCRETION – whether the exercise of discretion by the magistrate had disregarded the principles of natural justice

SUBSTANTIAL MISCARRIAGE OF JUSTICE – section 230(2) of the District Courts Act Chapter No. 40 - evidence of possible bias and unfairness in the 'reasons for decision' - whether these amount to substantial miscarriage of justice

Facts

The appellant and the respondent were presumed married, but they lived separate lives at the material time. They had one female child who was 9 years old. In 2016, the respondent obtained a maintenance order at the Family Court against the appellant in favour of himself and their child who was under his care. On 23 March 2017, the respondent applied for and obtained an enforcement order at the Family Court against the appellant concerning the maintenance arrears. The order also included a jail term of 10 months imprisonment with light labour if the appellant failed to comply with the enforcement order.

Held

1. The Deserted Wives and Children Act Chapter No. 277 was repealed by the Lukautim Pikinini Act No. 45 of 2015 on 11 March 2016, that is, well before the time the respondent filed his maintenance proceeding at the Family Court in Kerevat.
   
2. Provisions that were relied upon by the appellant under the Deserted Wives and Children Act to argue her grounds of appeal were null and void.
   
3. Both parties did not attend the Family Court and nor were they present at the time when the Family Court heard and granted the respondent's enforcement application.
   
4. There was evidence which showed that Her Worship did not allow, in the exercise of her discretion at the enforcement hearing, opportunities to the parties particularly to the appellant, to be heard.
   
5. There was also evidence disclosed, in Her Worship's written "REASONS FOR DECISION", of a reasonable presumption or apprehension of bias or unfairness.
   
6. The appeal was upheld.
   

Cases cited:

Gari Baki v. Allan Kopi (2008) N4023
Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd (2009) SC979
Salamo Elema v. Pacific MMI Insurance Limited (2011) SC1114
The State v. James Yali (2005) N2932

Counsel:

Mr P Yange, for the Appellant
Mrs N Rainol, for the Respondent

JUDGMENT

25^th January, 2018

1. ANIS J: This is an appeal against an enforcement order for maintenance made by the Family Court at the District Court level. The order was made on 23 March 2017 by Her Worship Georgina R Coppard (Her Worship) at the Kerevat Family Court in Kokopo, East New Britain Province (Family Court).
   
2. Her Worship held and I quote in part: It is adjudged that GEORGINA LUPIN shall pay maintenance arrears to BERNARD BONAVA for the periods 01/07/16 to 31/03/17 at K250-00 per fortnight the sum of K5000-00 on or by the 07/04/17 in default ten (10) months imprisonment ILL. I note that the initials ILL stand for "In Light Labour."
   
3. I heard the appeal at 9:30am on 13 December 2017. I reserved my decision to a date to be advised. Parties have been so advised that the decision is ready and would be delivered today at 1:30pm.
   
4. I do so now.
   

Relevant background

5. The appellant and the respondent had a past relationship. Because the status of their relationship, or marriage to be precise, was not an issue, I will leave it at that. What I can say for this purpose is that from that relationship, they had a daughter. She is currently 9 years old. Their relationship however did not last. They appeared to have separated in 2015 or perhaps much earlier than that. I make this assumption based on information contained in the original summons for maintenance (the summons), which the respondent had filed on 5 May 2016. The summons is located at page 35 of the Amended Appeal Book (AAB).
   
6. Now, the summons was filed under the Deserted Wives and Children Act Chapter No. 277 (DWC Act). The respondent had applied for maintenance of himself and his daughter under the DWC Act. The summons returned before Her Worship on 23 June 2016. The Family Court dealt with the summons and granted the maintenance order in favour of the respondent. There is no actual maintenance court order in the AAB that I can refer to here. Having said that, I note that the maintenance order is reflected in the Certificate of Arrears, which had been prepared and filed by the Clerk of Court. The said certificate is located at page 15 of the AAB. The maintenance order appears to be quite long. In this case, I do not think that it is necessary that I should set out its full terms. I will instead restate only the first part of the order, which reads and I quote:
   

I hereby ordered that the said Defendant shall pay the sum of K250-00 per fortnight for the maintenance and support being apportioned in the following manner:-

(i) (Name of the child) K200-00

(ii) BERNARD BONAVA (father/complainant) K50-00

7. Her Worship's order of 23 June 2016 was made ex-parte.
   
8. The order remained outstanding so on 9 March 2017, the respondent applied under the Maintenance Orders Enforcement Act Chapter No. 279 (MOE Act) to enforce it, and also to seek an order to commit the appellant to imprisonment if she fails to fully settle the maintenance arrears within a specified period. The application was set down for hearing on 23 March 2017. The facts shows that the appellant had engaged her counsel a day or so before the return of the enforcement application. On 23 March 2017, both parties did not appear in person in Court. Reading from Her Worship's hand written notes at pages 12 and 13 of the AAB, for the respondent, his parents had appeared on his behalf. As for the appellant, a Wilfred Allan, a clerk employed with the appellant's lawyers' firm, had appeared. Mr Allan, it appears, had intended to inform the Court of the appellant's engagement of her lawyers and of the pending notice of motion which the appellant had filed or was about to file that day. Her Worship, again based on her hand written notes, rejected the motion "due to irregularity in the process" as she puts it. It seems clear that attempts by Mr Allan to bring to Her Worship's attention that day that the appellant would defend the matter as well of the court documents that had been filed by her, had all been ruled out by the Court. I notice from the AAB that three (3) of the court documents that had been filed by the appellant on 23 March 2017, namely, the notice of motion, the affidavit of the appellant and the notice of appearance, all have the District Court's common seal. However, at the same time, I must also say that I am unable to determine with certainty, based on the documents in the AAB, whether the three (3) court documents had all been filed before or after the hearing on that day.
   
9. Her Worship proceeded to hear the enforcement application on 23 March 2017 and made orders, which are the subject of this appeal.
   

Issues

10. The main issues are as follows:
    

(i) Whether the DWC Act and its provisions are binding;

(ii) Whether the Family Court erred in law and or has exceeded its jurisdiction, when it ordered the appellant to pay up or be imprisoned under the MOE Act;

(iii) Whether Her Worship, in exercising her discretionary power, had failed to afford the appellant her right to be heard under the circumstances; and

(iv) Whether there has been a substantial miscarriage of justice.

Grounds of appeal

11. Let me begin by setting out the grounds of appeal. I read them in part at pages 2 and 3 of the AAB as follows:
    

(i) The learned Magistrate erred in law and in fact in making the orders in a situation where the Respondent is not entitled to claim maintenance as the maintenance prescribed in sections 2 & 3 of the Deserted Wives & Children Act is available only to a deserted wife or children (by the mother or a representative) against her husband or father of the child.

(ii) The learned Magistrate erred in law and in fact in arriving at the orders in a situation where the "Application to Commit Defendant to Prison" giving rise to the orders were issued contrary to Section 4 of the Maintenance Orders Enforcement Act, as "a defendant" is categorically referring to a "male person" and therefore cannot apply to the Appellant.

(iii) The learned Magistrate breached principles of natural justice in reaching ex parte hearing and related orders of 23 June 2016 without any regard to the Appellant's evidence (which she presented during the first return date of the Summons) before the court that her daughter was not deserted but that the aggressive father (Respondent) prevented the child from seen her and accessing her care and support. A full and fair hearing was necessary in the circumstances of the case.

(iv) The learned Magistrate breached principles of natural justice in reaching the orders in a situation where the Appellant was not given opportunity to be heard when represented by counsel with appropriate application (by Notice of Motion and supportive affidavit) filed in the District Court Registry which sought to set aside the earlier orders of the court raising the pivotal issues raised in this appeal.

Deserted Wives and Children Act Chapter No. 277 (DWC Act)

12. The DWC Act is referred to under the first ground of appeal. I will deal with it now. At the hearing, I indicated to both counsel that the DWC Act has been repealed. I find that to be the correct position. The new or replacement Act is called the Lukautim Pikinini Act No. 45 of 2015 (LP Act). The LP Act was certified as law on 11 March 2016. At the hearing, section 121 of the LP Act was highlighted and discussed. It reads and I quote:
    

121. Repeal.

The following pieces of legislations are hereby repealed —

(a) Child Welfare Act (Chapter 276); and

(b) Lukautim Pikinini (Child) Act 2009; and

(c) Deserted Wives and Children Act (Chapter 277); and

(d) Infants Act (Chapter 278).

13. So the DWC Act was repealed by the LP Act on 11 March 2016. With that in mind, it should be noted that the respondent herein first filed his proceeding for maintenance against the appellant at the Family Court on 5 May 2016. The date in the summons confirms this. What I now know and find in conclusion under this sub-heading is that the DWC Act was repealed before the respondent filed his maintenance proceeding. As such, it is futile, in my view, for the appellant to try to argue or ask the appellate Court to interpret the provisions of the repealed DWC Act.
    
14. I therefore find that the first ground of appeal cannot be sustained. I find it futile as well as misconceived. I will dismiss the first ground of appeal.
    

Maintenance Orders Enforcement Act Chapter No. 279 (MOE Act)

15. The appellant also refers to the MOE Act in ground 2 of her appeal. This Act has not been repealed. The appellant's argument relates to the wording of section 4. She says that the section only applies to enforcement against a "male person". She says that it exempts a person from invoking it to commence enforcement proceeding against a "woman" or a "female person". She says that since she was a "woman", Her Worship erred in law when she had allowed and heard the application that was filed by the respondent under section 4 of the MOA Act.
    
16. The issue was discussed at some length at the hearing. I note that I have captured the appellant's argument above. As for the respondent, his counsel submits that section 4 can also be invoked against a defendant woman. Counsel submits that Her Worship had correctly exercised her power when she made the enforcement order under the section. Counsel makes the comparison by referring to the definition of "maintenance order" as defined in section 1 of the MOE Act. The section reads in part that "maintenance order" means an order for the payment of moneys for or towards the maintenance of a wife, husband or child, and includes...... Counsel submits that section 4 should be given a plural meaning so that it applies to women as well.
    
17. Let me start by setting out section 4. It reads and I quote:
    

4. Imprisonment for disobedience of order.

(1) Where the defendant, being a male person, has disobeyed or failed to comply with a maintenance order and a sum of money (in this section referred to as "arrears") due under the order is unpaid, application to commit the defendant to prison may be made to the Court by or on behalf of the person for whose benefit the order was made.

18. I am unable to find a reported domestic case law on point that addresses this issue. I find that this is not something that I should look abroad for answers. Instead, I will interpret section 4 of the MOE Act by applying its express meaning and if not by its liberal or ordinary meaning. Well, what do I mean when I say "liberal" or "ordinary" meaning? The answer to that is set out in the case law within the jurisdiction. I need not refer to them all. For this purpose, I will refer to the case of Gari Baki v. Allan Kopi (2008) N4023. The Deputy Chief Justice Sir Salamo Injia, as he then was, now the Chief Justice, said in part at page 16 of his judgment and I quote:
    

The principles of statutory interpretation are settled. The Court must give effect to the legislative intention and purpose expressed in the language used in the statute. If the words used in the statute are clear and unambiguous, the Court must adopt the plain and ordinary meaning of those words. There is no need for the Court to engage in any statutory interpretation exercise. If the words are not so clear or ambiguous, the Court must construe the words in a fair and liberal manner in ascertaining their meaning and give an interpretation which gives meaning and effect to the legislative intention in the provision. The purpose of words or phrases used in question should be read and construed in the context of the provision as a whole. The Court should avoid a technical or legalistic construction of words and phrases used in a statutory provision without regard to other provisions which give context and meaning to the particular word (s) and phrases in question.

19. Other cases include The Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd (2009) SC979, Salamo Elema v. Pacific MMI Insurance Limited (2011) SC1114 and The State v. James Yali (2005) N2932.
    
20. I refer to the definition of the term "maintenance order" under section 1 of the MOE Act. In my view, the term is express, as correctly stated by counsel for the respondent in her submission. It applies generally to include a wife, a husband, and a child. And it relates to commencement of maintenance proceeding by either a wife or a husband, to obtain a maintenance order. However, the issue on point before this Court for consideration relates to enforcement of maintenance orders under section 4 as opposed to commencement of maintenance proceedings. What does section 4 mean? Does it expressly restrict the type of persons whom the maintenance order may be enforced against? I am inclined to find in the affirmative. The qualified person, in my view, would be a defendant being a male person. Section 4, in my view, cannot be invoked and enforced against a defendant who is a woman. I note that the definition of a "defendant" under section 1 states and I quote "defendant", in relation to a maintenance order or proceedings in connexion with a maintenance order, means the person liable to make payments under that order... The said provision does give a liberal meaning to the definition of a defendant and it applies to both male or female defendants similarly like the definition of the term "maintenance order." But section 4, in my view, makes the distinction or qualification between the two (2) persons. Had the legislators simply used the word "defendant" under section 4 without adding the words being a male person, it would have, in my view, covered or included a "female defendant" and in this case, the appellant would have been subject to the enforcement proceeding. In this case, however, that is not how the provision is worded. Section 4, in my view, specifically qualifies a defendant person when it expressly states, Where the defendant, being a male person....... The section, in my view, expressly provides for enforcement proceedings that may be commenced against male defendants only. Therefore, because the appellant was a female defendant, section 4 did not and should not have applied to her. In other words, it was wrong for the respondent to invoke section 4 and file enforcement proceeding against the appellant in the Family Court. And it was wrong for Her Worship to proceed to hear and grant the orders sought by the respondent under section 4 of the MOE Act.
    
21. I will uphold the second ground of appeal.
    

Right to be heard

22. The appellant's argument in regard to her purported right to be heard is contained at grounds (iii) and (iv). I will address them separately. In regard to ground (iii), I note that I had raised a point with counsel at the hearing. I had pointed out that the ground appeared to raise arguments concerning the substantive matter, which I said was not what was before Her Worship to deal with, and I had queried whether it was a valid ground of appeal in the first place. I note that I had also reminded counsel that the hearing before the Family Court was only in relation to enforcement and not in relation to the substantive matter.
    
23. Counsel for the appellant, in reply and with respect, did not provide convincing reasons except to say that the National Court has the power to make orders in the interest of justice. Counsel also submitted that the National Court has the power to replace all the orders made by the Family Court. Again, I fail to see how I can uphold this argument. The decision appealed against is not against the final or the original maintenance order of the Family Court, which was made on 23 June 2016, which had dealt with the substantive matter, but rather, it is against the enforcement order of 23 March 2017. As an appellant Court, I am, unlike in a case where the appeal is against the substantive decision where I would have absolute or wider powers to exercise, limited by the nature of the appealed decision. I find this to be the case.
    
24. As such, I find ground (iii) baseless and I will dismiss it.
    
25. In regard to ground (iv), it seems to give an impression that the appellant's lawyers have actually attended the Family Court hearing on 23 March 2017 and that they have been denied the right to represent their client's interest. I find the ground to be partly misconceived or contrary to the facts. I say this because, at the time, both parties were not physically present in Court. For the respondent, his parents appeared, and as for the appellant, her lawyers' clerk appeared presumably on behalf of the law firm. Her Worship noted the appearance of the clerk but ruled against hearing him or entertaining the appellant's motion on grounds of irregularity, and she proceeded to and dealt with the respondent's enforcement application. Given these, I firstly find ground (iv) to be partially factually incorrect where it states or implies that the appellant's lawyers were present on 23 March 2017. However, I am not inclined to dismiss it yet until I consider the next matter, which I think has a significant bearing on this ground. What is that next matter, I ask myself? It relates to Her Worship's "REASONS FOR DECISION." This is found at pages 8, 9 and 10 of the AAB. I note that I had raised that with both counsel at the hearing. I had said that I found the reasons to be, with respect, not reasons at all, unusual and odd. I recall that I had asked counsels' submissions on this. Both counsel agreed generally with the Court's remarks, which was that Her Worship's written reasons challenge or rather consist of submissions against the grounds of appeal; that Her Worship's written reasons did not constitute the reasons for her decision she had made on 23 March 2017, which is the subject of the appeal. I find that to be the case.
    
26. I also find that the reasons also suggest possible bias and lack of impartiality by Her Worship when she dealt with the enforcement application. Let me quote some of the examples in the "REASONS FOR DECISION" to support my finding herein:
    

(i) Her Worship begins with her written reasons as follows, "I refer to the Notice of Appeal dated the 11^th April, 2017 a copy of the grounds are attached."

(ii) At page 1 paragraph 4, Her Worship says, "The lawyer for the Appellant did not avail himself of the new laws that are coming out so that the grounds for such Appeal would not have been raised. The grounds made have no legal basis."

(iii) At page 1 paragraph 5, Her Worship says, "On 23^th June, 2016, I made a maintenance order against the Appellant. The Appellant has no other children and is now living a de factor and adulterous relationship with a comfortable employment."

(iv) At page 1 paragraph 9, Her Worship says, "The Defendant never appeared after receiving the Application but chose to hide behind the curtains of a legal firm."

(v) At page 2 paragraph 2, Her Worship says, "It would be late and erroneous to ask for an appeal of the original order now."

(vi) Towards the end of page 2, Her Worship puts down as her sub-heading and I quote "What is there to appeal against?"

(vii) And at the final paragraph of Her Worship's written reasons, at page 3, she says, "The Appeal should fail in all its entirety and the Appellant; unless she pays the full amount should be ordered to be jailed as duly ordered on the 23^rd March, 2017.

27. What do I make of these? In my view, it seems obvious, based on the above examples, that there was real likelihood of bias or unfairness demonstrated by Her Worship towards the appellant when she exercised her discretion and granted the enforcement order. These are revealed, as demonstrated, in her written "REASONS FOR DECISION". With these, I think it is safe for me to reasonably assume that Her Worship did not fairly exercise her discretion when she rejected the appellant's representation or when she rejected attempts by the appellant's representative to be heard on their request for an adjournment, on 23 March 2017.
    
28. I will therefore uphold ground (iv) of the appeal.
    
29. I also find that Her Worship's exercise of discretion, firstly to reject representation by the appellant and secondly to allow and proceed on to hear the enforcement application, in light of my findings of evidence of reasonable assumption of bias or unfairness in the reasons for decision, amounts to or constitutes a substantial miscarriage of justice. I say this with authority from section 230(2) of the District Courts Act Chapter No. 40 (District Courts Act). The section and sub-section reads:
    

An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

30. I find that there was substantial miscarriage of justice in the exercise of Her Worship's discretion when she (i) rejected the documents that were filed by the appellant, (ii) when she refused to hear from the clerk of the firm who had acted for the appellant, and (iii) when she permitted and entertained the enforcement application filed by the respondent.
    

Summary

31. In regard to the first issue, Whether the DWC Act and its provisions are binding, my answer is "no". In regard to the second issue, Whether the Family Court erred in law, and or has exceeded its jurisdiction, when it ordered the appellant to pay up or be imprisoned under the MOE Act, my answer is "yes". In regard to the third issue, Whether Her Worship, in exercising her discretionary power, had failed to afford the appellant her right to be heard under the circumstances, my answer is "yes". And in regard to the fourth issue, Whether there has been a substantial miscarriage of justice, my answer is "yes".
    

Relief

32. The appellant seeks the following relief in her Notice of Appeal:
    

(1) The Appeal be upheld.

(2) The Kerevat District Court Family Court proceedings FC 06/16 be dismissed with costs to the Appellant.

(3) Pending the determination of this appeal, the orders the Kerevat District Court made on 23 March 2017 be stayed.

(4) Any other orders the National Court considers proper and or fitting.

(5) Costs of and incidental to this appeal.

33. The appeal has been upheld so the first relief is granted. I however decline to grant the second relief. I have covered part of the reasons above in my judgment. As I have said, the appeal against the Court Order of 23 March 2017 was an appeal against an enforcement order. The appellant has asked the appellant Court to review the enforcement order only and not the substantive order. As such, to ignore that and to proceed to grant the second relief would mean for me to exceed my jurisdiction. I will not follow that path. The second reason is this. I find the second relief unattainable as well as unavailable to the appellant to plead and ask for in the first place. It was wrong, in my view, for the appellant to have asked this appellant Court to dismiss of the substantive proceeding, when the decision appealed against did not address that but rather dealt with entirely different issues relating to enforcement.
    
34. For me to consider what I should do with this case, I am of course guided by section 230(1) of the District Courts Act. It states and I quote:
    

230. Power of National Court on appeal.

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

35. I have considered the various options. In this case, I am inclined to also exercise my powers under sub-sections (1)(d) and (e). In upholding the appeal, I will firstly dismiss the Court Order of 23 March 2017. Secondly, I will grant the fourth relief in principal and in doing so order the matter to be remitted back to the Family Court and for the Family Court to hear the appellant's notice of motion that is filed and dated 23 March 2017. In addition to and given my findings herein in general, I will also order that the appellant is at liberty to amend her notice of motion where required, and for the parties to file additional affidavits again where required in relation to the said notice of motion.
    
36. Because I have also found evidence of bias and unfairness in Her Worship's written reasons for her decision, I will also order that upon the return of the matter, that it be dealt with by another magistrate at the Kerevat or the Kokopo Family Court.
    

Cost

37. Cost is of course discretionary. In this case, I will order the respondent to pay the appellant's cost of appeal on a party/party basis to be taxed if not agreed.
    

THE ORDERS OF THE COURT

I make the following orders:

1. The appeal is upheld.
   
2. The Family Court Order of 23 March 2017 is dismissed.
   
3. The appellant's notice of motion dated 23 March 2017 shall be heard by the Family Court soon after the first mention of the matter.
   
4. The appellant is at liberty to amend her notice of motion where required and the parties are at liberty to file additional affidavits before the hearing.
   
5. Cost of the appeal is awarded to the appellant on a party/party basis which may be taxed if not agreed.
   
6. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.

________________________________________________________________
Islands Legal Services: Lawyers for the Appellant
NatPhil & Associates Lawyers: Lawyers for the Respondent