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Kumung v Ralewa [2009] PGDC 91; DC984 (23 June 2009)

DC984

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION

DCCi 74 of 2009

BETWEEN

RICKY KUMUNG
Complainant

AND

PELEI RALEWA
Defendant

Madang: E Wilmot

2005: 23 June 2009

CIVIL – Application for leave to appear under Section 59(e) of the District Court Act – Lawyers appear under section 59(1) (a) When can this section be sought – Under what circumstance ase Details

Cases Cited
State v Mambei [1999] PGDC 28; DC448 (2 August 1999)
References
Section 59(e) District courts act

Counsel
Name Of Lawyer, for the Complainant
Name Of Lawyer, for the Defendant

2005

E Wilmot DCM

The substantive matter is made in relation tto evict the complainant under section 6 of the Summery Ejectment Act. Mr Kembu a company secretary for Raibus Security Limited. He holds a degree as a lawyer and has a current Restricted Practicing Certificate. I know not who he practices under. He appears as a friend of Mr Kumung who is working in Port Moresby as an adviser with Auzaid.

Mr Kembu presents the following ground for his appearance. He appears not as a lawyer but a friend of the complainant to help bring this matter to finality. He states that Mr Kumung is a personal friend which came about due to him doing work previously while he was employed by Stevens Lawyers.

He further divulges that his services will not be charged but all costs will be met by the complainant. He will not be charging for the work he is doing.

The Complainant is appearing in person and makes no submission in response.

The court is concerned in that it has come to the court that certain persons appearing under section 59 have after providing the services issues bills to those they have appeared for.

The Law

What does Section 59(1) say:

A Complainant or a defendant may be represented for the purposes of a proceeding by

(a) a lawyer; or

(b) a person admitted as a trainee to the Legal Training Institute to represent a party to the proceeding; or

(c) subject to sub - section (3), a Candidate for the Degree of Bachelor of Laws at the University of Papua New Guinea who is Certified by the Dean of the Faculty of Law after consultation with a magistrate nominated by the Magistrate's Association to act as a legal representative; or

(d) any other person authorised by law; or

(e) any other person by leave of Court.

The section 59(e) merely states that a person may appear for a complainant or defendant for the purposes of the proceedings by any other person by leave of the court. To understand this one must look at the whole provision of section 59 of the district courts act.

Section 59.

I am of the opinion that section 59 in general allows for legal representation for persons to appear for the complainant or the defendant. And it is done so in line with section legal representation under Section 37 of the Constitution for a person's right to legal representation.

But the district courts goes further to highlight or qualify who can appear or make legal representation. I highlight the discussion of my brother Magistrate KORONAJ, PM in the matter of State v Mambei [1999] PGDC 28; DC448 (2 August 1999), which he has taken the liberty to identify who can make legal representation.

have taken the liberly to highlight his explanation of section 59(1).

Section 59 (1) (a) is clear, It only allows qualified lawyers, who have current practising Certificates, unlimited access to appear before District Court, on behalf of a Complainant or a defendant, as the Case maybe, in any proceedings.

Section 59 (1) (b) allows Trainee Lawyers such as the applicant, of the Legal Training Institute, to appear on behalf of a Complainant or a defendant, in proceedings before District Courts but they must be Certified in writing, by the Director of the Legal Training Institute to appear for a particular Case and they should produce this certificate when they appear in Court. This statutory requirement cannot be waive by this Court, as it would be acting without jurisdiction if it did so.

Section 59 (1) (c) allows students studying law at the University of Papua New Guinea to appear in District Courts, to represent a particular Complainant or defendant but they must first be Certified to do so, in writing, by the Dean of the Faculty of Law and must produce this Certificate to the Court when they appear and their appearances are also subject to section 59 (1) (3) (a) and (b) which I do not wish to discuss here as it is irrelevant to the issues before this Court.

Section 59 (1) (d) allows any other person authorised by law to appear in District Courts to prosecute or defend Cases. I take this to include persons like Complainants or defendants who are authorised by the District Courts Act to lay and prosecute Complaints or defend them, by their own persons without legal or other representations. Police officers of their prosecution sections who are trained to prosecute informations before District Courts. Labour Officers who under the Industrial Relations Act or other labour laws which enables them to lay and prosecute complaints or information before District Courts. Fisheries officers who, under the Fisheries Act, and appear before District Courts to prosecute persons for breaches of the Fisheries Act. Customs officers who are required by the customs Act to appear before District Courts to prosecute for breaches of it's provisions. These are some examples of persons authorised by law to appear before District Courts under section 59 (1) (d) and there are others like Council officers who prosecute before District Courts for breaches of Council rules or taxation officers and many more.

Section 59 (1) (e) allows ordinary citizens, who are not covered under the provisions of the preceding sections referred to above, such as Kiaps, Doctors, Teachers or even Priests, in remote parts of the country, where proper legal aid Services are not available, and who may be familiar with Court practices and procedures, to appear in District Courts to assist illiterate Complainants or defendants put or defend their Cases before these Courts. I think it also allows for persons such as Village or Clan leaders or elders to appear in District Courts, on behalf of their villages or clans, to put their Case or ask questions of another regarding Customary Matters. I think it would also allow employees of Companies whose jobs are debt Collectors to, appear in District Courts, and receive judgements on behalf of their employers. All these classes of persons referred to above would use the provisions of section 59 (1) (e) to apply for leave to appear before District Courts and not those referred to in section 59 (1) (a), (1) (b), (1) (c) or (1) (d) of District Courts Act Chapter 40.

CONCLUSION:

I rely heavily on the case mentioned above and I would see that the applicant can not appear per section 59(e) of the district court act. The application is meant for representation by persons other then lawyers and I list them below:

1. such as Kiaps,

2. Doctors,

3. Teachers or

4. even Priests,

in remote parts of the country, where proper legal aid Services are not available, and who may be familiar with Court practices and procedures, to appear in District Courts to assist illiterate Complainants or defendants put or defend their Cases before these Courts.

Secondly I think it also allows for persons such as Village or Clan leaders or elders to appear in District Courts, on behalf of their villages or clans, to put their Case or ask questions of another regarding Customary Matters.

Thirdly I think it would also allow employees of Companies whose jobs are debt Collectors within the company itself to, appear in District Courts, and receive judgements on behalf of their employers.

All these classes of persons referred to above would use this provisions with leave of the court to appear. The applicant in this matter does npt fall within the categories above.

The complainant does not live in a remote part of PNG. He lives and works in Port Moresby. He has property in Madang. He is in a position to get appropriate legal representation.

In my opinion his application to appear in this Courts as next friend is not proper falls outside the intention of section 59 (1) (e). Mr. Kembu cannot appear as next friend or a friend of the Courts are not provided for under section 59 (1) (e) of District Courts Act Chapter 40 and therefore his application cannot be considered by this Courts and is refused.

In conclusion Appearances as a friend or friend of the Courts, usually requested by qualified lawyers in the National court which is not the case here but the applicant is a lawyer appearing as a friend of the applicant. I stress the case refferd and highlight again. the complainant does not live in a remote part of PNG. I am of the opinion this is a prerequisite of section 59(e).

And his application is not provided by this section.

there is another section that appears to allow a next of friend to appear under section 39 of the DCA and again o concur with my brother Koronai this provision is for in relation to appearances for and on behalf of infants and persons over the ages of sixteen years and under the age of 21 years and has no application to the applicant's application.

FORMAL ORDERS:

I now make the following orders:

1. Applicant is denied because his circumstance does not fall within the provisions of section 59 (1) (e) of District Courts Act; and

2. Applicant cannot appear in this Courts under the provisions of section 59 (1) (e) of District Courts Act because he does not fit into the definition or class of other persons authorised by law; and

In person : Complainant
Mr Kembu: Defendant

Name of law firm