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Moses v Magiten [2000] PGNC 73; N2023 (1 December 2000)

N2023

PAPUA NEW GUINEA

[IN THE NATIONAL COURT JUSTICE]

APP CIA NO 190 of 1999

BETWEEN:

WILLIAM MOSES

Appellant

AND:

OTTO BENAL MAGITEN

Respondent

LAE: KANDAKASI,J.
2000: December 1

INFERIOR COURTS - Appeals - District Courts - Appeal from – Lodgment of Appeal with different Court – Failure to serve within time – Filing Notice of Entry of Appeal when appeal not ready – Abuse of process – Failure to comply with District Courts Act fatal - District Courts Act (Ch. No. 40), ss. 220, 221, 226 & 227.

APPEALS – Practice & Procedure – Appeal to National Court – Appeal from District Court - Lodgment of Appeal with different Court – Failure to serve within time – Filing Notice of Entry of Appeal when appeal not ready – Abuse of process - District Courts Act (Ch. No. 40), ss. 220, 221, 226 & 227.

PRACTICE & PROCEDURE – National Court – Appeals to – Want of prosecution – motion to dismiss served – No appearance for or on behalf of Appellant – Ex parte hearing - No explanation for delay - Appeal dismissed - District Courts Act (Ch. No. 40), ss. 226 & 227 – National Court Rules 1983, Order 10 Rule 4 & 5

LAWYERS - Professional conduct – improper conduct – Writing to Court to the exclusion of other party on day of hearing for adjournment – Failing to have an office sufficiently equipped and manned – Breach of Professional Conduct Rules – Professional Conduct Rules – s. 21.

Cases cited:
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577

Counsel:

Applicant/Respondent in person.
No appearance for Respondent/Appellant

1st December 2000

KANDAKASI, J: This is an application seeking to dismiss the appeal for want of prosecution by notice of motion filed on 20th of November 2000. It is supported by an affidavit sworn by the Applicant/Respondent (hereinafter referred to as "Respondent") on the 8th and also filed on the 20th of November 2000.

When the matter was called for hearing, no appearance was made for or on behalf of the Respondent/Appellant (hereinafter referred to as " the Appellant"). Upon the Court’s inquiry, the Respondent informed the Court that the notice of motion and the affidavit in support were served on the Appellant’s lawyer, Mr. Richter Habuka on the 24th of November 2000 around 8:40am at his place of work. He said he told Mr. Habuka that the motion will be heard on the 1st of December 2000 and Mr. Habuka told him that, that was fine with him. He was therefore, most surprised that neither Mr. Habuka nor his client was present. At that stage my associate handed to me a facsimile letter from Habuka lawyers addressed to the Assistant Registrar of the National Court dated the 1st of December 2000. Set out below, are the main parts of the letter:

We act for the Respondent William Moses regarding the above matter and request an adjournment of the motion to Monday 4th December 2000 as we have only received instructions from our client yesterday (30/11/00).

Our client resides in Bialla about 4 hours drive from Kimbe and we were unable to contact him until Tuesday this week.

We also have another matter in Lae (OS 699/00Kimbe soccer Association matter) set for Monday and intend to deal with both matters then.

Yours faithfully

Richter Habuka

I dealt with the matter of OS 699/00 Kimbe soccer Association on an interim basis at about 5:30pm on the 30th of November 2000. Clearly therefore, that could not have affected any preparation and appearance in court for this matter on the day set which was 1st December 2000, notice of which was given on the 24th of November 2000.

The Court read out the letter and asked the Respondent to go to the Registrar of the National Court and telephone Mr. Habuka and tell him that the motion is proceeding to a hearing at 1:30pm. The Court then adjourned the matter to 1:30pm.

At about 2:00pm when the case resumed, the Court was told that attempts were made to speak to Mr. Habuka without success. The telephone at Mr. Habuka’s office kept on ringing without a response. The Court was told that, that was the problem the Respondent had experienced on numerous other occasions when trying to contact Mr. Habuka or his firm. The Respondent was then asked to take the stand and give evidence regarding the service of his motion and supporting affidavit and his conversations with Mr. Habuka from the date of the service of those documents to date.

On oath the Respondent stated that following a failure on the part of the Appellant to prosecute his appeal promptly after filing it on the 15th of June 2000, he conducted a search of the court file and found that no further action was taken. He therefore took out the notice of motion and had it filed with his supporting affidavit. Upon receipt of the sealed copies of the notice of motion and the supporting affidavit, he turned up at Hubaka Lawyers office twice only to find it closed. On the third and final attempt on the 24th of November 2000, he went to Mr. Richter Habuka’s place of business and hand delivered copies of the notice of motion and affidavit in support. That was about 8:40am. At that time he told Mr. Habuka that the motion was set for hearing on the 1st of December 2000 and that he would proceed with the hearing on that date. He also asked if it was necessary for him to serve the motion and affidavit in support on his (Mr. Habuka’s) client and the Respondent was told that, that was not necessary has he was still acting for the Appellant and that he will let him know. The Respondent then restated the unsuccessful attempts to speak to Mr. Habuka after the Court adjourned the matter in the morning.

The Court asked, whether the Respondent was prepared to agree to an adjournment of his motion to the 4th of December 2000 per Habuka Lawyers’ letter of the 1st of December 2000. He said he was not agreeing to an adjournment, as that will cost him a lot of inconvenience in terms of accommodation and food after having travelled from Kimbe to attend to the matter. He was forced to travel, as there was no indication from Mr. Habuka that he will not be attending court today or that he would be seeking an adjournment. He stated that he could not find a place to stay in Lae as he has no extra money to pay for accommodation, food and transport to and from Madang or Kimbe for that matter. He also said, him not having friends or relatives in Lae with whom he could stay awaiting the hearing of his application complicated his situation.

Order 4 Rule 42 of the National Court Rules 1983, requires service of notices of motions, three clear days before the date set for hearing. In the present case, the notice of motion and supporting affidavit were served on the 24th of November 2000. That was 6 clear days before the date set for a hearing of the motion. The Respondent therefore, meet the minimum days required for service and three more days beyond the required three clear days.

Before proceeding any further, may I say that, I consider it improper conduct for a lawyer to hold himself out has a practicing lawyer without having any fixed, working and reasonably manned office and or telephone and facsimile numbers to enable their clients, other lawyers and other persons to contact them without difficulty. Lawyers should be slow to accepting and acting on instructions if they do not have such minimum facilities and or are not able to meet such minimum requirements to assist in their respective practices. Indeed section 21 (2) and (3) of the Professional Conduct Rules provide that:

(2) A lawyer shall conduct his practice from a proper office and shall inform the Registrar of the National Court and the Secretary of the Law Society promptly of his address of practice or any change in the address.

(3) A lawyer shall ensure that at his main place of practice he or another lawyer is in charge at that place and gives substantial attendance thereat during the normal hours of his practice at that place.

In my view, if what the Respondent says is correct then, it was clearly a breach of the professional conduct rules in not manning his office between the usual business hours of 8:00am to about 4:00pm. Even if there were no professional conduct rules, I would still consider a failure by a lawyer to ensure that his office was reasonably manned with properly working telephone and facsimiles during the normal business hours to be unprofessional conduct. Lawyers conducting in such manner should cease to practice and work with someone who is able to provide such bare minimums of having a law practice.

In the particular circumstances of this case, I granted the Respondent leave to proceed with his application ex parte. In so doing, I pointed out that, it was unacceptable practice for a lawyer to write off to a court on the very day of a hearing of a matter and ask the matter to be adjourned without any agreement or prior communication with the other party or parties involved. Lawyers should also cease the practice of directly writing to a court to the exclusion of the other party or parties. They should instead instruct another lawyer in the town or city where the matter is being dealt with as their agent and formally apply for an adjournment or whatever orders they consider appropriate.

I then proceed to hear the Respondent on his application in addition to reading his affidavit in support sworn on 8th November 2000. From the affidavit of the Respondent and other material on the court file, I noted the following:

1. Bialla District Court handed down the decision the subject of the appeal;
   
2. The decision was delivered on the 16th June 1999;
   
3. 15th July 1999, Notice of Appeal, Recognizance of Appeal and Entry of Appeal to the National Court were filed;
   
4. The Appeal was lodged at the Kimbe District Court and not the Bialla District Court;
   
5. 28th June 1999, Habuka Lawyers wrote to Bialla District Court informing it of the Appeal and asking the court not to allow any execution of the decision appealed against;
   
6. The Notice of Appeal and the other appeal documents were not served on the Respondent until sometime in October 1999, which was almost 3 months after the lodgment of the appeal and 4 months after the decision of the Bialla District Court
   
7. No steps were taken to prosecute the Appeal since lodging it;
   
8. 20th November 2000, Notice of Motion and Affidavit in Support seeking to dismiss proceedings were filed; and
   
9. 24th November 2000, Notice of Motion and Affidavit in support were personally served on Mr. Richter Habuka
   

It is now settled law that District Courts are not courts of record and are creatures of statute. Therefore their powers, functions and anything to do with them are governed by their enabling legislation, the District Courts Act (Ch.40) (hereinafter "the Act"). Consequently, all things done not in accordance with the Act have been held to be null and void and of no effect: see The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577.

Appeals out of District Courts are governed by Part XI, sections 219 – 246 of the Act. For our purposes sections 220, 221, 226 and 227 are relevant. These sections read:

220. Institution of appeal.
     

(1) An appeal under Section 219 shall be instituted—

(a) by notice of appeal; and

(b) by entering into a recognizance on appeal, or by giving other security as specified in Section 222.

(2) An appellant shall give notice of his intention to appeal by lodging, within on month after the day when the decision is pronounced, a notice of appeal with the Clerk of the Court by which the conviction, order or adjudication was made.

221. Notice of appeal.
     

(1) A notice of appeal under Section 220 shall be in writing, and shall state the nature of the grounds of appeal.

(2) Within one month after the day on which the decision was pronounced, a copy of the notice of appeal shall be served by or on behalf of the appellant on—

(a) the respondent, or on each of the respondents if more than one; and

(b) the Registrar of the National Court.

226. Appellant to set down appeal and give notice.
     

(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court.

(2) An entry shall be made by delivering to the Registrar of the National Court a memorandum in the prescribed form, signed by the appellant or by his lawyer and containing the prescribed particulars.

227. Failure to enter appeal for hearing.
     

If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.

The word "shall" is used in these sections. The words used in these provisions are so plain and clear that there is no room for any argument as to when and where an appeal can be lodged and when it should be prosecuted before the National Court. The words of section 220(2) make it clear that an appeal against a decision of a District Court should be lodged "with the Clerk of the District Court by which the conviction, order or adjudication was made". That must be done within a period of one month from the date of the decision appealed against. Then by virtue of section 221(2), sealed copies of the Notice of Appeal should be served on the respondent or respondents if more than one, also within a period of one month from the date of the decision appealed against.

Once an appeal has been lodged and served in the above manner, an appellant is obliged by section 226 to enter the appeal for hearing by the National Court within a period of 40 days from the date of the lodgment of his appeal. A failure to do so attracts the application of section 227, which renders the appeal non-existent. The combined effects of sections 226 and 227 in my humble view, is that, an appeal should be ready for hearing before the National Court within 40 days from the date of its filing. There would of course, be exceptions to that. If the delay in having an appeal heard within such a period can be excused by reason of say, the District Court depositions and or transcripts not being made available despite requests and follow ups on such requests by an appellant, or that the magistrates reasons for decision are not available, or that there is no judge to hear the appeal, or that the appellant is seriously ill and or such other factors exist which prevent an appellant from promptly prosecuting his appeal, the effect of non compliance of section 226 could be avoided. The onus is always on an appellant to show such factors exist if there is an application to dismiss for want of prosecution or non compliance of section 226 of the Act. If an appellant fails to prove by appropriate evidence, the existence of such factors, the appeal should be dismissed for want of prosecution.

The principles enunciated in the case of General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331 although in the context of Order 7 Rule 53 of the Supreme Court Rules, apply in my view, in respect of appeals to the National Court from the District Courts. In that case, the Supreme Court considered the provisions of the relevant rule and said at page 334:

It is of some strength in the argument that a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence?
...

We consider, that though an exercise of discretion is available to a court, (the rule provides three alternate courses), its exercise should not avail an appellant in circumstances where there is absence of excuse.

Some relevant considerations when exercising this discretion are dealt with by this Court in Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55, where the court said, at 56:

"None of this is to say that r 25 will be regarded lightly. It is a rule of court and any appeal which does not meet its requirements is at risk of being dismissed."

The matters to which the Court had regard in that case were different to those dealt with here, for primarily the absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected.

We consider that to do otherwise than to dismiss in the absence of explanation would result in a failure to pay sufficient regard to the clear mandate in r 53(a) to dismiss for want of prosecution.

Thus, if a case of want of prosecution is made out in an application to dismiss for want of prosecution and a respondent to such an application fails to provide a reasonable explanation, the appeal should be dismissed. To do so is to achieve the main objective of reaching finalities in litigation once a decision has been made, subjected only to any appeal that gets prosecuted with due diligence.

As already mentioned, the National Court has not hesitated to dismiss appeals from the District Courts that have not complied with provisions of the Act. In the ABCO Transport Pty Ltd v. Timothy Sakaip (supra) case the court decided to dismiss the appeal on the basis inter alia that the appeal was not instituted in accordance with the provisions of section 220 and an extension of time to file and serve the appeal out of time in accordance with the provisions of section 231 of the Act was not first sought and obtained.

In the present case, the appeal was filed with the Kimbe District Court and not the Bialla District Court, which made the decision the subject of the appeal. That was contrary to the provisions of section 220(2) of the Act. Then contrary to the provisions of section 221(2) of the Act, the Notice of Appeal and the other appeal documents were not served on the Respondent until sometime in October 2000. That saw a passage of almost 4 months from the date of the Bialla District decision. These alone provide the basis to dismiss the appeal.

There is a further reason to dismiss the appeal. The Appellant filed an entry of his appeal to the National Court on the same day of the lodgment of the appeal. That meant that as of the 15th of July 1999 the appeal was ready for hearing. However, the matter was not in fact ready for hearing at that time or at the time of the hearing of the motion seeking to dismiss the appeal for want of prosecution. To my simple mind, the filing of the entry of appeal to the National Court was an abuse of process. This is because, I consider the requirement to file and serve an entry of appeal to the National Court is to tell the court and all concerned that an appeal is ready for hearing. That in my view is obvious from the words "for hearing on a date to be fixed by the registrar of the National Court" used in section 226(1) of the Act. I consider the situation is similar to filing and serving a notice to set down for trial of a writ of summons matter before the National Court pursuant to Order 10 rule 4 of the National Court Rules 1983. A failure to set a matter down for trial in accordance with that rule, attracts the application of Order 10 rule 5, which is the provision that allows for the dismissal of a case for want of prosecution. The equivalent of that rule in the case of appeals from the District Court to the National Court, in my view, is section 227 of the Act which renders an appeal non existent if an entry of an appeal to the National Court is not filed in accordance with section 226 of the Act. Clearly in my view, there is legislative intent to have all appeals from District Courts heard after the lapse of 40 days from the date of the lodgment of an appeal. Any delay in that therefore, has to be satisfactorily explained if a dismissal and or an enforcement of the decision appealed against is to be avoided. A failure to provide such an explanation is fatal to an appeal.

Finally, neither an affidavit in reply to the affidavit in support of the motion to dismiss the appeal has been filed, nor has the Appellant or his lawyer turned up in court to oppose the application after being served with the application on the 24th of November 2000. A period of one (1) year five (5) months passed since the lodgment of the appeal and the matter is still not ready to be heard now or within the next few days. The appellant has simply not offered any explanation for the delay of one (1) year five (5) months. In other words no reasonable explanation has been offered for the delay of one (1) year five (5) months to avoid a dismissal of his appeal and or an enforcement of the decision appealed against. There is even no indication that the appeal will be prosecuted in the immediate future notwithstanding the delay. This also provides the basis, if not on the basis of the above reasons, to dismiss the appeal.

I remind myself of what the Supreme Court said in General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra),

...a court should be wary of extinguishing a plaintiff’s right of action, but, having found a verdict the public interest requires finality to litigation, subject of course to the rights of parties to appeal the verdict (with due diligence). The emphasis must be on finality and questions directed to show no inordinate delay or lack of real prejudice to the respondent are peripheral to the real issue. Has the appellant prosecuted his appeal with due diligence

In the present case, the appellant has not prosecuted his appeal with due diligence. Therefore to ensure finality in the litigation and the decision that has already been made which has been the subject of this appeal but has not been prosecuted with due diligence, I dismiss the appeal with costs against the appellant.
__________________________________________________________

Lawyers for the Applicant/Respondent: In Person
Lawyers for the Respondent/Appellant: Habuka Lawyers