DC2040

IN THE DISTRICT COURT OF PAPUA NEW GUINEA
HELD IN KUNDIAWA

DC NO 712 of 2009

BETWEEN

PIUNDE LIMITED
(Complainant/Applicant)

AND

MUAINA HIGH SCHOOL
(Defendant/Respondent)

Magistrate: Josephine Kilage, Kundiawa

Civil Court: Issues of jurisdiction on the enforcement or review of an order of the National Court 

 Issues of process and procedure on whether an aggrieved party can seek relief in the District Court on the alleged defectiveness of a National Court order through the initial District Court proceedings.

Interlocutory Applications

1.	Notice of motion filed on 5 August 2011 by Complainant seeking orders to have DC No 712 of 2008 reinstated for rehearing of the substantive matter.

2.	Notice of motion filed on 23rd August 2012 by Defendant seeking orders to uphold a decision of the National Court in favour of the applicant and to have the notice of motion to have the substantive matter reinstated dismissed 

3.	Cross Notice of Motion filed on 24 September 2012 by the Complainant to dismiss the earlier notice of motion and to proceed with the substantive matter on the basis that the National Court order is defective.

Laws:

Sections 5, 9,22 of the District Courts Act
Section 236 of the District Courts Act 
Case Law: 

Parties to proceeding:

Mr James Kimin Pikip: Appearing for Cross Applicant/Resondent/Complainant 
Mr Philip Launa & /Mr Ware Muale:Appearing for Cross Respondent/Applicant/Defendant 

Kilage-Bal 

1st March 2012,10th April 2012, 7th May 2012, 23rd May 2012, 25 June 2012,24th July 2012, 8th August 2012, 12th September 2012 and 25th September 2012.
 
Held: 
•	The reinstating of a proceeding in the District Court through a notice of motion whereby the decision of the National Court is questioned is an abuse of process.

•	The District Court cannot review the decision of the National Court.

•	The District Court relies on the written order of the National Court and not on allegations of verbal directions which are contrary to the written order.

•	The Complainant cannot seek redress from the District Court once the National Court quashes decisions made by the District Court.

•	Once the National Court quashes the decision of the District Court there is no further redress on the same set of facts in the District Court unless it is stated so in the order.

•	Only the National Court or the Supreme Court has the jurisdiction to review the decision of Justice Kangwia through the process of judicial review or through an appeal.

Ruling

•	The notice of motion filed on 5th August 2011 by the complainant is dismissed as it is an abuse of process and because the District Court does not have the jurisdiction to review the decision of the National Court

•	Cost of this notice of motion is to met by the complainant.

•	The dismissal of this notice of motion means that there is no reinstating of DC 712 of 2008.

•	Therefore the Notice of Motion dated 23rd August 2012 is set aside and each party is to bear their own cost .

•	The Cross Notice of Motion dated 24 September 2012 is also set aside and each party is to bear their own cost.

•	The District Court upholds the decision of Justice Kangwia in CIA No 157 of 2009.

Facts: 

The Complainant states that the Defendants appealed two orders of the District Court to the National Court. The National Court then made a decision to uphold the appeal and quash the two decisions of the District Court. The Complainant states that the Order of the National Court is defective because the verbal directions of His Honor Kangwia were that DC No 712 of 2008 could be reinstated by the complainant but that the written orders stated that the orders of DC No 712 and 713 of 2008 were quashed.

The Defendant then on 24th August 2011 reinstated proceedings by way of a notice of motion to have the matter reinstated for hearing on the substantive matter. The defendant replied through the filing of a subsequent notice of motion dated 10th September 2012 seeking orders to dismiss the earlier notice of motion filed by the complainant stating that it was an abuse of process and that the court lacked jurisdiction to consider the application. The Complainant then filed a cross notice of motion seeking orders to have the Defendants notice of motion also dismissed and the proceedings be allowed to proceed before the District Court.

I will consider all three Notice of Motions in my judgment and will make my findings. My findings in relation to the first Notice of Motion will determine the standing of the other subsequent Notice of Motions. I point out here that the other two notice of motions were not necessary as the proper process would have been an affidavit in response to the Notice of Motion. The subsequent Notice of Motions are responses to each party's position in this matter and should have been filed as affidavits.

I will now deal with the fundamental issue before this court and that is the jurisdictional issue. 

Issue No 1: Does the District Court have the jurisdiction to review the decision of the National Court? Are there exceptional circumstances which allow such a review?

The District Court is a creature of the law and Magistrates within the District Court can only work within the boundaries of the District Courts Act. Section 5 of the District Courts Act states that Magistrates have and may exercise within and for their jurisdictions the several powers and authorities conferred on them by this or any other law. This means a Magistrate has auxiliary powers which are limited by law. A Magistrate does not have the discretion to step beyond the boundary of the law. This would make a Magistrates action or omission non juris and ultimately make it null and void. 

Section 9 of the District Courts Act states "An act done or purporting to have been done by or before a Magistrate shall be taken to have been done within his jurisdiction in the absence of proof to the contrary". Here it is clear that a Magistrate is presumed to act or omit to act within his or her jurisdiction until otherwise proven. The boundaries of the lawfulness of his or her action is set by law. Therefore a Magistrate can only do what the law says and not act beyond that law.

Section 22 of the District Courts Act states " Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it-

(a)	Grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b)	Give the same effect to every ground of defense or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a matter.

This Section assumes that there is jurisdiction to make a remedy or grant a relief. However the matter before me is not a District Court proceeding but in effect it is an application to reinstate a District Court matter which has been concluded. The two separate proceedings DC No 712 of 2008 and DC No 713 of 2008 were granted default orders which were then appealed on and as the appeal was granted these orders were quashed as they were irregularly enter, as per CIA 157 of 2010. The quashing of the two District Court Orders means that the Appellant was only required to pay the outstanding sum of K4455.00 to the Respondent. The Appellant has complied with this order so the National Court Order of 26th July 2011 has been effected. 

If the Respondent had objections to the decision of the National Court he had thirty days to appeal to the Supreme Court or to lodge an application of Judicial Review in the National Court. The District Court does not have the jurisdiction to review the decision of the National Court. Therefore the Complainant cannot rely on s22 of the District Courts Act as his application is beyond the jurisdiction of the District Court.

1.	Complainants Notice of Motion – Dated 5th August 2011

On 19th August 2011 the Complainant served on the Defendant a Notice of Motion dated and filed on5th August 2011 and an affidavit in support. The Notice of Motion was lodged under DC No 712 of 2008. The orders sought in that Notice of Motion were:

•	That DC No 712 of 2008 in the Matter of PIUNDE LIMITED –ats- HEADMASTER MUAINA HIGH SCHOOL be reinstated for rehearing of substantive matter,

•	That the Defendant pays the cost of this application

•	And any such orders as the Court deem necessary.

The affidavit in support of the Notice of Motion by Mr Kimin Pikip stated in paragraph 7 and 8 respectively that:

•	The National Court upheld Mr Appa's decision of 24th August 2009 on DC No 713 of 2008, the Order for K4456.80 and ordered that the Defendant school pays the Complainant company.

•	The National Court Judge quashed the other of on DC No 712 of 2008 for K6546.00 and said that if the Complainant company wished it could take it back to the District Court for proper adjudication. The basis in which the Judge upheld the Schools upheld was based on the technicalities of the manner in which the original summons was served.

This Notice of Motion came before the District Court on 24th August 2011 before Principal Magistrate Appa. On his Civil Worksheet his Worship ordered Mr Kimin Pikip to get a copy of the National Court Order particularly where the judge ordered for the case No 712 of 2008 to go back to DC for adjudication. Here his Worship did not err in law because he was implementing Section 236 of the District Court Act.

Section 236 states" (1) Where a conviction, order or adjudication has been affirmed, amended or made by the National Court on a appeal, a Court or Magistrate has the same Authority to enforce the conviction, order or adjudication as if it had not appealed from or had been made in the first instance.

(2) An action or proceeding shall not be commenced or had against a Court or Magistrate for enforcing a conviction, order or adjudication referred to in Subsection (1) by reason of a defect in the conviction, order or proceeding.

The Section only allows for the enforcement of a National Court order upon appeal from the District Court. There is no provision in the District Court Act that enables the District Court to go against the decision of the National Court. If there was this would make the right of appeal from the District Court to the National Court obsolete. It is important to note here that His Worship did not reinstate the proceedings. The matter was adjourned to 26 September 2011.

On 26 September 2011 the Complainant inform PM Appa that he had written to the National Court for a copy of the transcript. His Worship stated 'he could not proceed until he knew if he had the jurisdiction over cases that had already gone on appeal the NC".

The statement by his Worship is correct in that he wanted to see whether the transcript stated that the matter was remitted for rehearing on the substantive matter or not and whether the orders were only for quashing to default judgments. 

This is understandable as Section 230 of the District Court Act gives the power to the National Court to hear District Court appeals in the following manner:

(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.

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

His Worship Appa further adjourned to 28 November 2011 where he further adjourned to 16 December 2012 as both parties to the proceedings did not appear. Further adjournments were sought and granted by Mr Appa on 16th December 2012 and 21 January 2012 in which the Complainant stated he was still following up on the National Court transcript. From 10th February 2012, 1st March 2012, 20th March 2012,10th April 2012 the case was adjourned due to the non appearance of both parties. By then the case was heard by SPM Kurei and me.

On 7th May 2012 the Defendant appeared before me and requested an adjournment to move his Notice of Motion. The case was adjourned to 23rd May 2012 for mention. Due to the non appearance of both parties the matter was adjourned on 23rd May 2012 to 25 June 2012 to 24th July 2012 respectively. On 24th June 2012 the Defendant made an application to proceed with his Notice of Motion ex parte. However he did not serve the Notice of Motion on the Complainant and the matter was adjourned to 8th August 2012. On 8th August 2012 neither party appeared and the matter was further adjourned to 12th September 2012. 

On 12 September 2012 both parties were represented in court and the Complainant stated that he was served the Notice of Motion the day for court was to have been mentioned. As the document was short served I adjourned the matter to 25 September 2012 for the Complainant to respond to the Defendants notice of motion. On 25th September 2012 the parties came before the court where the Complainant served the Defendant a cross notice of motion. Both parties consented to the court making a ruling on the evidence before the court. 

The First Notice of Motion has not been decided upon. The delay was caused to the Complainant seeking adjournments while waiting for the National Court to produce transcripts. However what is important to note is that Orders are complied with and not transcripts. 

There is a written order on file which does not state that the matter DC No 712 is remitted to the District Court for rehearing of substantive matter. Therefore the District Court only comply and confirm with what his Honor Kangwia wrote and not what he is alleged to have said. To do otherwise would be to tantamount to contempt of court. 

In strict compliance with His Honor's order I enforce that order as per Section 236 of the District Courts Act and dismiss the Complainants Notice of Motion on the grounds that

•	The complainant should have followed the appropriate redress available to him by seeking a judicial review or appealing.

•	The complainant cannot rely on a transcript when the court order is clear.

•	The complainant reinstatement of the proceedings in the District Court after the National Court has made a ruling on matters before it is a blatant abuse of process.

•	The complainant has not shown cause as to why this matter should or can be reinstated in the District Court.

I thereby dismiss the complainants Notice of Motion and will not allow this matter to be reheard in this court. The National Court showed that the complainant did not effect service of the summons of DC No 712 and 713 of 2008 on the defendant and therefore the default orders were defective and ultimately quashed.

 The complainant could have prevented all of this in the first place by proper service of the summons. He did not do so and therefore brought judgment upon himself for his own actions. It is not the Courts place to overlook the complainant's actions and to further allow him to abuse court processes by reinstating this proceedings. Also the complainant did not actively prosecute this matter and did not appear in court on several dates this matter was mentioned. This unnecessary delay has robbed the complainant from following the correct procedure of review or appeal to a higher court. I award cost against the complainant.

2.	Defendants Notice of Motion – Dated 10th September 2012
I uphold the Notice of Motion of the Defendants and award costs against the Complainant.

3.	Complainants Cross-Notice of Motion- Dated 24th September 2012
I set aside this Notice of Motion has the National Court has jurisdiction over District Court Appeals and therefore the District Court cannot review a decision of the National Court. A lower court cannot review the decision of a higher court of review. He states that the National Court order is defective. Who am I to review the decision of a higher court? This is beyond the judicial powers given to me by the District Courts Act.

The District Court has no jurisdiction under s22(a) of the District Courts Act. The inherent jurisdiction of the National Court as stated in the Constitution and in the National Court Act and National Court Rules overrides the auxiliary jurisdiction of the District Court. Where there is a conflict of laws the higher law has precedence. The District Court Act gives way to the Constitution of Papua New Guinea. Each party will bear their own cost.

The Kundiawa District Court cannot review the decision of the National Court sitting at Kundiawa.

For the above reasons I make the following orders.

1.	The notice of motion filed on 5th August 2011 by the complainant is dismissed as it is an abuse of process and because the District Court does not have the jurisdiction to review the decision of the National Court

2.	Cost of this notice of motion is to be met by the complainant.

3.	The dismissal of this notice of motion means that there is no reinstating of DC No 712 of 2008.

4.	Therefore the Notice of Motion dated 23rd August 2012 is upheld and I award cost against the complainant.

5.	The Cross Notice of Motion dated 24 September 2012 is also set aside and each party is to bear their own cost.

6.	The District Court upholds the decision of Justice Kangwia in CIA No 157 of 2009.

J.Kilage-Bal
Magistrate