N943

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WASON PTY LTD

V

DEGEMBA

Kundiawa
Brunton J

20 November 1990

INFERIOR COURTS - District Courts - Practice and procedure - Civil matters - When orders may be made - District Courts Act (Ch No 40), ss 139, 141, 142, 146

Held

In civil matters before the District Court, the Court is required to follow the procedures provided for in Div 1 of Pt VIII of the District Courts Act (Ch No 40) and may only make an order:

(a) if the defendant admits the truth of the complaint and shows no sufficient cause why an order should not be made; or

(b) where the defendant has resisted the complaint, if both parties have had an opportunity to address the Court, and the complainant has adduced evidence in support of his case, and the defendant has adduced evidence in support of his case (as when there is a set-off).

Appeal

This was an appeal from an order of a District Court magistrate in proceedings on complaint for recovery of rent.

Counsel

I Kuamin, for the appellant.
The respondent in person.

20 November 1990

BRUNTON J: In the District Court, Wason Pty Ltd, the complainant/appellant was ordered to pay Paul Degemba, the defendant/respondent, K504.76, being moneys paid in excess of a rental stipulated in a sub-lease dated 22 September 1988.

The grounds of appeal were:

1. that the respondent had full knowledge of the conditions stipulated in the sub-lease agreement dated 22 September 1988 including monthly rental rate; and

2. that there was no evidence to suggest that the respondent was to pay K500 per month for renting the Kai Bar at Section 4, Allotment 8, township of Kundiawa.

On their own the grounds of appeal did not make any sense.

An examination of the District Court record revealed:

· no sworn evidence was before the District Court;

· the respondent did not make any formal admission to the Court in relation to the complaint.

On the appeal, Mr Kuamin appearing for the appellant said from the bar table:

"There was a previous action but the record was burnt. In that proceeding the magistrate was asked to make an order for K504.76 in favour of the respondent. The company (appellant) filed a cross-claim."

The record of the previous action was not before the National Court on appeal. Presumably it had been lost in a fire.

The respondent, appearing in person, gave a verbal account from the bar table of his view of the action in the District Court. It was a complex account that was not supported by the court record, or by affidavit, indeed there was no affidavit evidence at all put before the National Court as to what transpired in the District Court.

Part VIII of the District Courts Act (Ch No 40) is entitled "Proceedings in Connexion with Complaints"; Div 1 of Pt VIII is entitled "General". It deals with the general procedures to be used in civil matters before the District Court.

Section 139 of the Act reads:

"139. When facts are admitted

(1) At the hearing, the substance of the complaint shall be stated to the defendant and he shall be asked if he has any cause to show why an order should not be made against him.

(2) If the defendant admits the truth of the complaint and shows no sufficient cause why an order should not be made against him, the Court, after hearing such evidence as it thinks fit with respect to the subject matter of the complaint, shall make an order against him." (Emphasis added.)

The defendant/respondent resisted the complaint, and by a process that was not altogether clear, the court found against the complainant/appellant, presumably on the basis of some sort of set-off.

Sections 141, 142 and 146 of the Act provide:

"141. When facts not admitted

If the defendant does not admit the truth of the complaint, the Court shall proceed:

(a) to hear the complainant and such witnesses as are examined on his behalf, and such other evidence as is adduced in support of the complaint; and

(b) to hear the defendant and such witnesses as are examined on his behalf, and such other evidence as is adduced in his defence; and

(c) to hear such witnesses as the complainant examines in reply, if any evidence has been given on behalf of the defendant.

142. Conduct of proceedings

In respect of the examination and cross-examination of witnesses and the right of addressing the Court in reply, or otherwise, the practice before a Court on the hearing of a complaint shall be in accordance, as nearly as practicable, with the practice for the time being of the National Court on the trial of an action at law.

146. Court to decide case

The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the set-off, as the case requires."(Emphasis added.)

On the basis of the statute, and on the basis of general principles, in a civil case where both parties are before the court, the District Court may only make an order:

(a) if the defendant admits the truth of the complaint and shows no sufficient cause why an order should not be made; or

(b) where the defendant has resisted the complaint, if both parties have had an opportunity to address the Court, and the complainant has adduced evidence in support of his case, and the defendant has adduced evidence in support of his case (as when there is a set-off).

In the case before the District Court there was no record of the defendant having admitted the truth of the complaint. Indeed the record showed that the defendant vigorously resisted the complaint and was said to have filed its own cross-claim. (It appears that the complainant faced a set-off claimed by the defendant.) There was no record of the complainant having made any admission to that set-off.

There was no record in the proceedings of the District Court of testimony being given by either party, and no record of evidence being admitted by consent by either party. It was therefore not possible for the District Court to arrive at any decision to either make an order against any of the parties or to dismiss the complaint.

Accordingly the order of Mr T Gomia, District Court Magistrate, dated 8 March 1990 in case No 30/90 against Wason Pty Ltd is quashed and the case is remitted before another magistrate for rehearing.

No order is made in respect of costs.

Appeal allowed

Decision of District Court quashed

_________________

Lawyers for the appellant: Isidor Kuamin & Co.
The respondent in person.