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Thomas v Thomas [2011] PGNC 325; N5142 (19 April 2011)

N5142

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 01 OF 2011

BETWEEN:

JOYCELYN THOMAS
KIMMY SECURITY SERVICES
JIMSON KIRI
Appellants

AND:

BRADSADY THOMAS
Respondent

Kimbe: Kawi, J
2011: 19th April

PRACTICE AND PROCEDURE-Appeal from District Court to National Court- Notice of Motion – Application to dismiss appeal for want of prosecution- Section 226 of District Courts Act- imposes mandatory requirement to Enter Appeal for Hearing within 40 days of lodging Notice of Appeal- Appeal Rules 2005- Imposes mandatory obligation to file appeal books - but there is no legal requirement to file and serve Appeal Books within 40 days- May be a good administrative practice- but there is no legal requirement to file appeal books within 40 days.- Entry of Appeal to National Court within 40 days not the same as filing appeal books- Two different process- Appeal dismissed

By a Notice of Motion, the respondent moved the court to have the appeal dismissed for want of prosecution. It was argued by the respondent that the appeal books must be filed and served within 40 days. It was further contended by the respondent that by failing to file and serve the appeal books within 40 days, the appellant had breached section 226 of the District Courts Act.

Held:

(1) Section 226 of the District Courts Act relates to the requirement that after lodging the appeal, the Appeal must then be entered for hearing within 40 days. This is a mandatory requirement. Entry of Appeal to the National Court within 40 days of lodging the appeal, is not the same as filing an Appeal Book. These are two different processes.

(2) Rule 9 of the Appeal Rules 2005, imposes a mandatory obligation upon an appellant to compile an appeal book and have it filed before the appeal is fixed for hearing.

(3) There is however no requirement either under the District Court Act or under the Appeal Rules 2005 to have appeal Books filed and served within 40 days. The mandatory requirement of Entering An Appeal for Hearing to the National Court within 40 days cannot be implied into and extended to say that there is a requirement to file Appeal Books within 40 days.

(4) It may be a statutory requirement and good practice to file appeal books within 40 days, but there is no legal requirement that Appeal Books must be filed and served within 40 days. Failure to file an appeal Book within 40 days does not attract any legal consequences.

(5) The motion is therefore dismissed with costs to the appellants.

Cases cited in Judgement

John Kipian v Sebastian Tarai [2010] Unreported and Unnumbered Judgement of Kawi J dated 10th August 2010.

Counsel:

Appellants in Person
Respondents in Person

1. KAWI J: The appellants lodged an appeal to the National Court against the decision of the Kimbe District Court given on the 9th of December 2010. By a Notice of motion dated 11th March 2011, one Thomas Gamini for the respondent moved to have the entire appeal dismissed for want of prosecution. The basis for this motion as he argues is that the appellant failed to file the "appeal books and have them served within 40 days" and have them served on the respondent. An appeal book was indeed filed, but the respondent says it was filed outside the 40 days period. During submissions, the Court enquired with the respondent to point out the relevant provisions in the District Court Act or anywhere else, which obliges an appellant to file his Appeal Books within the 40 days period. The respondent pointed to and relied upon Section 226 of the District Courts Act which relates to the requirement that the Entry of Appeal to the National Court must be filed within 40 days after filing a Notice of Appeal. In the case of John Kipian –v– Sabestian Tarai, an Appeal I heard and delivered judgement on at Hoskins on the 10th August 2010, I said that the requirement to have an Entry of Appeal to the National Court is, to be filed within 40 days is a mandatory requirement. Failure to file within the 40 days period renders the appeal, a nullity and may attract the provisions of Order 10 rule 5, where a Judge can exercise his discretion to have the appeal dismissed for want of prosecution. Here the appellant did indeed file an Entry of Appeal to the National Court on the 6th January 2011.

2. The respondent does accept that the Entry of Appeal was indeed filed. But it is the filing of the appeal of the appeal book which he submits should have been filed and served within 40 days. In my view, and I so find that there is no provision in the District Court Act, which obliges an appellant to file an Appeal Book and have it served within 40 days.

3. The only other relevant document is the National Court Civil Jurisdiction Practice Rules entitled "Civil Jurisdiction 2005 Edition."

4. Division 5 – headed "Appeals and Review, Rule No. 9 is headed "Appeal Book and Review Book". The following commentary is made:

"It is the duty of the Appellant to prepare and compile the Appeal Book in the format set out in the Appeal Rules 2005. No appeal will be fixed for hearing without an Appeal Book being filed."

5. Rule No. 6 of the Appeal Rules 2005 provides the following commentaries:

6- Appeal Book

(1) The appellant or his/her lawyer is responsible for compiling the Appeal Book.

(2) The appellant or his/her lawyer is responsible for ensuring that the court depositions are provided by the Clerk of Court or appropriate officer of the tribunal or authority which made the decision and received by the National Court.

6. No where in these Rules can one find a requirement that the Appeal Book must be filed within 40 days. But there is a mandatory requirement that Appeal Books must be filed and served on the other party.

7. Accordingly, this Court finds that while there is a mandatory requirement to file Appeal Books, there is no legal requirement that the Appeal Books must be filed and served within 40 days. Consequently I will dismiss this Motion and pursuant to Section 230 of the District Courts Act, I make the following orders.

1. The Orders made by the Kimbe District Court on the 9th December 2010 are hereby confirmed.
   
2. The appellant pay a civil compensation of K5,000.00 to the respondent by or before the end of June 30 2011.
   
3. The respondent is to pay the appellants costs of arguing this motion.
   
4. The appellant is to pay interest at a rate of 8% on the K5,000.00 award damages as from the 9th December 2010 to the 10th June 2011.
   
5. The respondent is ordered to allow the appellants to serve the appeal books upon him as well as any other court documents and court processes.
   
6. The respondent is ordered to certify the correctness of the Appeal Books before the 30th June 2011.
   
7. The appellant is ordered to have this appeal set down for hearing in the August Call over.

__________________________________________________________
Lawyer for the Appellant: In Person
Lawyer for the Respondent: In Person