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Mong v Mong [1997] PGNC 119; N1650 (26 September 1997)

Unreported National Court Decisions

N1650

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 89 OF 1996
BETWEEN: TONY MONG
APPELLANT
AND: YONG MONG
RESPONDENT

Mount Hagen

Injia J
20 June 1997
23 July1997
25 July 1997
26 September 1997

INFERIOR COURTS - Appeals - Practice and Procedure - Leave to appeal out of time - Leave obtained to appeal against decision of Local Court - Appeal filed against decision of District Court - Different appeal procedures prescribed by statute and rules of Local Court and District Courts - Appeal incompetent in law - Appeal dismissed - District Courts Act (Ch. No. 40), Part XI Ss. 220-231); National Court Rules, Order 18 (Local Court Appeal Rules).

INFERIOR COURTS - Practice and Procedure - Magistrate’s worksheet titled “In The Family Court” - Special jurisdiction of District of District Court in matters under Deserted Wives and Children Act Ch. No. 277 and Child Welfare Act (Ch. No. 276) - Absence of statutory provision creating “Family Court” - Confusion among the public as to which Court made decision - Need for Magisterial Service to provide Magistrates’ worksheet with correct title discussed.

Cases Cited

Nikints -v- Rumints [1990] PNGLR 128

ABCO Transport Pty Ltd -v- Timothy Sakaip N 1577 (1997)

OS 276/96 Pyakawa -v- Wete, unpublished National Court decision of Injia, J. handed down at Mt. Hagen on 13 September 1996.

Counsel

D. Kwimberi for the Appellant

M. Bayam for the Respondent

26 September 1997

INJIA J: This is an appeal which was heard on the dates indicated above and counsels for both parties were asked to file written submissions which they have done. Much of the submissions relate to the Magistrate’s findings on the evidence and the reasons for decision. However, it is not necessary to deliberate on those submissions because I have decided to dismiss the appeal on grounds of competency.

In this appeal, there is much confusion raised by the Court forms used by the lower court concerned and the appeal documentation prepared and filed by the Appellant’s lawyer. In the end, I am left wondering which decision of which court is being appealed against. Let me elaborate. In May 1995, the Respondent in this appeal took out maintenance proceedings against her husband, the appellant, claiming that he had left her and their 2 children (both daughters) without adequate means of support. The Complaint form used and the Summons to a Person Upon Complaint was the District Court forms. The matter first came for mention before Magistrate J. Temop in the “Family Court” on 25 May 1995. Subsequently, after a few adjournments, the matter proceeded to trial before Magistrate B. Jacobs. Both parties called evidence and they were cross examined. They were unrepresented. After the end of the evidence, on 8/12/95, the matter was adjourned to 19/1/96 for decision. On 19/1/96, Respondent was present to receive judgment but the Appellant was not. At that time the Appellant was in Port Moresby attending a course and he claims that he sent in a request to the Court to adjourn the matter. However the Magistrate proceeded convene the Court and to delivered judgment in favour of the Complainant and ordered the Defendant to, inter alia, pay a total of K80.00 in maintenance for the Respondent and her 2 children and committed custody of the two children to the Respondent. The magistrate gave full reasons for the decision which she published in Court. Those reasons were transcribed in her worksheet and the type-written form of her decision and reasons for decision are now available before me.

On 14 February 1996, upon learning of the decision which the Appellant referred to as “an ex-parte judgment”, he filed a motion with supporting affidavit, seeking to set aside the “ex-parte judgment” and sought a fresh date for “mention/hearing” of the substantive matter. However, this motion was misconceived because Magistrate Jacob’s decision was made after an evidentiary hearing and it was simply handed down on 19/1/96. Strictly speaking, it was not an ex-parte judgment which could be set aside under S. 25 of the District Courts Act. On 31/3/96, this motion came before Magistrate J. Temop who correctly struck out the application saying:

“The trial has been conducted in the presence of the Complainant and the Defendant. The Court made its decision after the full trial has been conducted.

The decision was not made in ex-parte hearing and therefore the Applicant (Defendant) has taken the wrong cause of action by filing a motion. The Applicant instead should appeal against the decision of the Court”

Again when this decision was made by Magistrate Temop, the Appellant was not present whereas the Respondent was.

From here, it seems the Appellant sought legal assistance from Paulus M. Dowa Lawyers. On 8/5/96, Dowa Lawyers filed an application in the National Court seeking “Leave to file out of time, appeal against the Local Court’s decision, dated 19th January 1996, by Betty Jacobs ordering the Plaintiff to pay a sum of K80.00 per fortnight.........”. On 24/5/96, the National Court granted the Appellant leave “to file appeal documents within 14 days as of the date of the order herein”. Pursuant to this order, the Appellant was expected to file appeal documents in accordance with the relevant appeal rules pertaining to appeal from a decision of the Local Court. These rules are found in Order 18 of the National Court Rules. However, on 5th June, 1996, Paulus M. Dowa Lawyers erroneously filed appeal documents in accordance with the provisions of Part XI of the District Courts Act (Ch. No. 40).

The first document filed was the Notice of Appeal filed pursuant to S. 220. In this document, which was addressed to the Clerk of Court of the “District Court”, the Appellant gave notice of “her intention to appeal against the order made by the District at Mount Hagen on 19th January 1996, whereby the Court struck out an application of the Applicant/Defendant to set aside the Court order dated 19 January 1996”. However, no leave from the National Court was obtained to appeal against Magistrate Temop’s decision made on 31/3/96, leave was obtained only to appeal against Magistrate Jacobs’ decision of 19/1/96. Further, Magistrate Temop did not make any order on 19/1/96. Therefore, the Notice of Appeal was misconceived in these respects.

The Notice of Appeal was also misconceived in another more significant respect. That is, the grounds of appeal set out therein did not relate to the decision appealed from. The grounds of appeal set out in this Notice of Appeal were:

“1. eae ld Mneistrgte erred ined in law in that there was no evidence to support his findings.

2. ҈& T60;leae learned Mned Magistrate erred in law in that she failed nsidee jusation of the sepa separatioration, unn, under customs.

3. ; T60re wes not enough evid evidence called to prove whether or not the Appellant has the capacity to pay as ordered.

4. &##160; The learned Magistrgistrate faileconsihe faat, the Respondenondent dest desertederted the Appellant as her own accord because she was having an affair with another man.”

Theoundsppealte to the Mahe Magistrgistrate Jate Jacob’s findings of fact on the evidence and her reasons for decision handed down on 19/1/96 whereas the decision appealed from is Magistrate Temop’s ex-parte decision of 31/3/96 stricking out the Appellant’s application to set aside the order of Magistrate Jacob made on 19/1/96.

The second document filed was the Recognizance on Appeal filed pursuant to S. 222. But it does not specify the date it was signed by the Magistrate and the Appellant. Further, it uses a “District Court” form and says the Complaint was heard by the “Local Court” at Mt. Hagen and “judgment was entered for the Appellant in the sum of K80.00 per fortnight commencing 19th January 1996”.

The third document filed was the Entry of Appeal to the National Court filed pursuant to S. 227. The cause of the matter of the Appeal is stated as “an adjudication by the District Court of Mount Hagen whereby it struck out Notice of Motion to set aside the District Court order dated 19 January 1996 and upheld the ordered judgment for K80.00 against the Defendant every fortnight”. However, leave to appeal against the decision of the Local Court at Mt. Hagen was granted by the National Court. Also, no decision was made on 19/1/96 stricking out any application to set aside any ex-parte order.

Upon a close perusal of all these appeal documents, I must say that the documentation is poorly drafted both in form and substance by the Appellant’s lawyers. e.g. the grounds of appeal set out in the Notice of Appeal are too broad and lack of particularity and relativity to the Magistrate’s findings of fact and reasons for decision on the case.

To compound the problem, the Court depositions provided to me shows that the Magistrates were using forms designed for District Courts but the Magistrates’ working sheets they used provided to them, I suppose by the Magisterial Service, are entitled “In the Family Court held at Mount Hagen .... “Child Affiliation Proceedings”. From what I know, there is no Court in PNG established by statute called “The Family Court”. The Deserted Wives and Children’s Act (Ch. No. 277) and the Child Welfare Act (Ch. No. 276) vest special jurisdiction in the District Court in “family matters” such as maintenance and affiliation proceedings the District Court and the procedures applicable in dealing with such matters including appeals to the National Court therefrom are those of the District Court. The Local Court is not vested with this jurisdiction. Therefore, any entitling of documents by parties or worksheets designed by the Magisterial Services for use by Magistrates should be appropriately entitled “In the District Court”. To call it a “Family Court” creates confusion among the public including lawyers.

Lawyers should also be tedious in their work. They are representing clients and for lawyers representing clients for a fee, they owe a duty to their clients to ascertain these things through diligent enquires and draft and file appropriate documents and seek appropriate orders in accordance with procedures prescribed by statute. If they are appealing against decisions of Local Court, then they should use the Local Court (Appeal) Rules which is found in Order 18 of the National Court Rules. If they are appealing against decisions of a District Court, they should use the provisions in Part XI of the District Courts Act. These two Courts are creatures of different statutes and their appeal procedures are different.

Time and time again, the National Court has re-iterated that mandatory appeal procedures prescribed by statutes must be strictly adhered to: See Kiak Nikints -v- Moki Rumints [1990] PNGLR 128; ABCO Transport Pty Ltd -v- Timothy Sakaip N 1577 (1997); and my unreported decision in OS 276/96 Wete Pyakawa -v Moni Wete which I handed down on 13 September 1996 at Mt. Hagen.

This is an appeal which is clearly incompetent and improperly before this Court. The nature and extent of the breach of the statutory rules relating to appeals is so severe that in the exercise of my discretion, it must be dismissed for failure to comply with the correct procedures prescribed by the relevant statute relating to appeals in the various respects I have set out above.

COURT ORDER

(1) ; Appeal is disdissed

(2) ҈& Costs osts of this this appeal is awarded to the Respondent.

Lawyer for the Appellant: DOWA Lawyers

Lawyer for the Respondent: PUBLIC SOLICITORS