Pywan v Pywan [2023] PGNC 186; N10229 (9 March 2023)

N10229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 11 OF 2021

JOSEPH PYWAN
Appellant

V
SANDRA PYWAN
First Respondent

Waigani: Miviri J
2023: 08^th & 9^th March

PRACTICE & PROCEDURE – Judicial Review & appeals – Interlocutory Pending Appeal – Motion to Adduce Fresh Evidence – Leave to – Order 18 Rule 12 (2) (a) NCR – Section 229 District Courts Act – Leave to Introduce Fresh Evidence – Letter – Whether Fresh Evidence – Evidence not Fresh – Available At Trial Primary Court – In possession of the Parties – Not Fresh Evidence – Motion Denied – Dismissed – Cost follow event.

Cases Cited:

Finance Corporation Ltd v Panao [2009] PGNC 178; N3810
John Peng v The State [1982] PNGLR 321
Ted Abiari v The State [1990] PNGLR 250
James Pari & ors v The State [1993] PNGLR 173

Counsel:

R. Inua, for Appellant

M. Kasa, for Respondent

RULING

09^th March, 2023

1. MIVIRI, J: This is the ruling on the Appellants Notice of motion of the 26^th February 2023 seeking pursuant to Order 18 Rule 12 (2) (a) of the National Court Rules, and section 229 of the District Court Act Chapter 40 for leave to be granted to introduce fresh evidence in the form of a Letter annexure “A” to the affidavit relied of Ruben Inua sworn of the 26^th February 2023.
   
2. Leave is sought echoing the sentiments of Section 229 of the District Court’s Act which sets that either the subject evidence is admitted into by consent of the parties or by order of the court. In this respect therefore the applicant seeks an order so that the subject letter can be admitted into evidence in the appeal. It was not in the evidence that came into this appeal. That is the argument of the applicant considering that the appeal is a rehearing on the evidence in the court below considering the case of Finance Corporation Ltd v Panao [2009] PGNC 178; N3810 (6 November 2009). And the applicant advances further that, fresh evidence means evidence that has come to light since the hearing. And which has come to the knowledge of the applicant applying since the hearing or trial and which by reasonable means have not come to his knowledge that time. And that the Justice of the case demands its admission, siting a string of cases in this regard John Peng v The State [1982] PNGLR 321; Ted Abiari v The State [1990] PNGLR 250; James Pari & ors v The State [1993] PNGLR 173.
   
3. He argues that the letter dated 18^th September 2020 allegedly written by the Director of Child and Family Services to the Magistrate who presided over the district Court Case subject of the appeal is evidence that came to light since the hearing. And has come to the knowledge of the appellant since the hearing, which by reasonable means has not come to his knowledge at the time of the hearing in or around 29^th October 2020 to 28^th April 2021. And that Justice of the case demands its admittance that it would demonstrate bias or apprehension of bias by the Magistrate in the court below which decided against the appellant.
   
4. The respondent counters and relies on the affidavit, Firstly, of the respondent Sandra Pyawan sworn dated the 06^th March 2023. She states the subject letter now relied was intended by her lawyer to be filed in court but the applicants lawyer objected to it. It is the same letter by the Director of the office of Child and Family Services annexed to her affidavit. The Court accepted and the affidavit was not admitted into evidence on that basis. And it is therefore not new evidence as it were. It was evidence that was there and the applicant knew of its existence and objected to its tender into the case. It was refused and not made part of the proceedings there. It should be refused.
   
5. In addition, reliance is placed on the affidavit of Otto Trur care of the Public Solicitors office Boroko National Capital District who is a lawyer taking carriage initially of the matter for the respondent. He is also the Deputy Director of the National Office for Child and Family Services located at the National Capital District Child and Family Services Gordons. In that capacity he took carriage as counsel for the Respondent and obtained the orders, annexure “A” to this affidavit. Which Orders are the subject of this appeal ordering maintenance against the appellant for the up keep of the respondent with the children of that union. It is a very detailed order covering all children in their maintenance both for their primary upkeep in school and up to when each will be 18 years where it will cease. Primarily he states in respect of the issue at paragraph 2 of his affidavit that; “I was advised by the Lawyer assisting the Respondent and taking carriage of the appeal matter at the National Court and the Appellant has filed a motion to introduce a letter dated 18^th of September 2020 and alleges that the Magistrate may have been persuaded by a letter from the Director of the Office of Child and Family Services dated 18^th of September 2020. It is attached Annexure “B” to his affidavit reading primarily of mistreatment of the children at the hands of the appellant and his second wife their stepmother. And of their request to be relocated away and of injuries emanating from the beatings set out by the girl Rudy who is 17 years old and doing grade 10 at Koiari Adventist Technical Secondary School.
   
6. Importantly Otto Trur’s affidavit continues at paragraph 3; “The appellant’s Lawyer is well aware of this letter dated 18^th September 2020 since the proceedings in the family Court in 2020, the assertion by the appellant’s Lawyer that he only stumbled upon this Document early this year should not be accepted by the Court.
   
7. “4. I say this because I attempted to introduce this document on the 21^st of September 2020 by annexing it to Sandra’s Affidavit.
   
8. I drafted Sandra’s affidavit and annexed the Director’s Letter of 18^th September 2020 and wanted to file it on 21^st September 2020, but the Appellant’s Lawyer objected to us filing that as he stated that a date has been given for trial also that we had already filed our notice to rely on and cross examine the witnesses on 24^th August 2020 hence pleadings has closed and the Court should not accept any more affidavit. Thus, we did not file that affidavit with the letter from the Director you will confirm from Annexure “C” that the Affidavit was not sealed and received by the Family Court. Which is annexure “C” attached to his affidavit unsealed copy of the affidavit of Sandra Pyawan.
   
9. And annexure “D” to his affidavit is the Notice of Affidavits to rely on and to cross examine the witnesses dated the 24^th August 2020. It does not have this particular affidavit attaching the subject letter in question now. And the deponent lawyer continues at paragraph 7; “The Court relied on other evidential material that was produced in Court to make the its decision on the 22^nd of April 2021 and 14^th May 2021. The Court also had the opportunity to interview the four children. They were all with their father and went to Court for interview. 8. The Court committed two children to the Appellant and two to the Respondent and maintenance payments to be made, and it appears to be fair and just order.”
   
10. This is the case that each side has brought with the evidence in support of each case. What is to be determined is, is this evidence that has come to light since the hearing. And which has come to the knowledge of the applicant applying since the hearing or trial and which by reasonable means have not come to his knowledge that time. And that the Justice of the case demands its admission. Because the appeal as is the case here is a rehearing of the matter. And relevant law has been sited by the applicant in this application set out above in the cases set out above. Applying that law does the letter dated the 18^th September 2020, under hand of the Director of National Office for Child and Family Services fit that law, it was evidence that has come to light since the hearing. And which has come to the knowledge of the applicant applying since the hearing or trial and which by reasonable means have not come to his knowledge that time. And that the Justice of the case demands its admission.
    
11. I have considered in total both sides of the argument and the evidence relied on. I am not swayed by the evidence relied on by the applicant that the subject evidence was before the Court at first instance. If it were, it would not be the subject of this application by him. It was not before that Court no fault of that Court, nor of the respondent because it was the applicant who made the application that pleadings had closed and the subject evidence would not be admitted in the proceedings. This is the evidence of the lawyer Otto Trur, who initially handled the matter in the primary Court for the respondent. So it is clear the subject letter of the 18^th September 2020 authored by the Director of National Office for Child and Family Services was within the parties both for and against. Each was versed that it was there appreciating its basis in their respective cases. The respondent sought reliance on it but objected to by the applicant now, and which was not countered to see its admittance into Court by the former.
    
12. Applied to the law set out above it is in my view evidence that has not just come into the possession of the applicant. He was aware of it and had it to make the objection to its tender to the respondent’s Lawyer at the time he sought its admittance even after the filing of the Notice to cross examine witnesses and to rely on affidavits filed had since closed pleadings. He knew where he stood in the case hence his objection to reliance on it by the respondent. It has by that fact been uncovered as it were now since the initial proceedings primary. He had knowledge and possession of it and sight of it to be able to make the objection that he raised to Otto Trur who sought its reliance even after closure of the Notice to rely on evidence and cross examination of witnesses. It is clear that he is seeking to bring forth evidence that is not new and which without reasonable excuse was not within his knowledge at that time. He was well acquainted with it and what it could do to his case at that time. He sought to prevent it from entering but there was other evidence that swayed the Court to arrive at the decision it took.
    
13. Given it would not defeat Justice if the application is refused because it is defeating that the appeal is not de novo but on the evidence that was initially led in the primary Court at first instance. I ask myself following the excerpt, “Fresh evidence” for the purpose of s. 6(1)(a) is new evidence that is relevant, credible, admissible according to the rules of evidence and of such a character that combined with the evidence already given at the trial the result in the minds of reasonable men ought to be affected” from John Peng (supra). In my view from the evidence set out above from the respondent, it is not new evidence. It was there at the trial in the hands of the applicant courtesy of the respondent. He appreciated its veracity and what it set to do if admitted into evidence. He sought to object and not allow admittance. It is not anew to him. It is not fresh in that sense and the definition of the law set out above. It is very prudent evidence both for and against it would have tilted the balance against his cause in the matter in favour of the respondent. It was credible evidence and he could have it there and then admitted stopping the pain he now endures. He sought reliance on the rules of Court to avoid its tender into and reliance at trial. He got the result he sought but the decision did not go his way, hence the appeal now instituted. He will bear that fact because the law he has cited does not heed his case to introduce.
    
14. Given he has not discharged the balance in the motion that he seeks by his evidence read with the law set out above. Accordingly, his motion is refused with Costs to follow the event forthwith.
    
15. The orders of the Court are:
    
    • (i) The Appellant’s motion for fresh evidence is denied with costs.
    • (ii) The matter will be called up for Directions on Monday 13^th March 2023 at 9.30am.
    • (iii) Costs will follow the event against the applicant appellant.

Orders Accordingly.

__________________________________________________________________

Inua Lawyers : Lawyer for the Appellant

Office of the Public Solicitor : Lawyer for the Respondent