Unreported National Court Decisions
N284
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APPEAL NO. 307 OF 1980
BETWEEN: ERIC SIAM
APPELLANT
AND: LAMUS LOM
RESPONDENT
Adang Adang
Pratt J
2 February 1981
13 February 1981
PRATT J:  There are three grounds set out in the notice of appeal:
1.       That I gave notice of my intention to defend the complaint and requested an adjournment until I was able to attend the court in person, and despite my request being conveyed to the learned magistrate, he heard the matter ex parte.
2.       That in any event, the District Court at Madang has no jurisdiction to hear the complaints as I have resided in Mt. Hagen since January 1980 and the separation between myself and complainant took place in Port Moresby.
3.       That in any event, the amount of maintenance ordered is unreasonable as being beyond my means to pay.
The relevant facts of this case will emerge during the judgment. I first of all deal with ground 1, that is that the hearing was carried out ex parte. Now in his affidavit supporting the appeal, the appellant states inter alia that in about the month of August 1980 he was served with a summons issued out of the Madang District Court alleging desertion and requesting the court to order support for Lamus Lom and the children. He says that he intended to defend this complaint and on the 22nd August he wrote to the District Court at Madang requesting an adjournment. This letter is exhibited on the court file and in fact an adjournment was granted to the 26th September 1980. On the 24th September the appellant approached the Senior Magistrate at Mt. Hagen, that is Mr Lofena, and requested him to contact the District Court at Madang and inform the court that he was unable to get permission from his employer to attend the hearing on the 26th September 1980. He believes that Mr Lofena did in fact contact the Madang Court. Indeed there is also an affidavit from Mr Lofena stating that on or about the 24th September he telephoned the clerk of court at Madang District Court and advised the court that the appellant (the defendant in the case) was unable to get leave from his place of employment and was requesting a further adjournment of his case. He asked the clerk to request the Senior Magistrate to return the call which was not done. Or, perhaps one should say here, it was not done so far as Mr Lofena was concerned. It may have been that the message never got to the Senior Magistrate in Madang - it may have been that the Senior Magistrate did in fact ring Mr Lofena but Mr Lofena may have been unavailable or the message may not have got through to him. The point here is that a phone call was made to Madang Court House requesting a further adjournment, but the message apparently never got to the presiding magistrate. There is nothing in the court notes indicating that any contact was made with the magistrate. In the reasons for judgment and decision, the magistrate does not say whether or not he was contacted. All the magistrate says is that there was no further intention to extend the hearing to a future date and therefore the court decided to hear the complaint ex parte on the 26th September. So I am left in some doubt as to whether the magistrate received the message or whether he decided in his discretion to reject the application for adjournment and go ahead and hear the case.
Counsel advises that the summons was served on the 28th July for hearing on the 28th August. On that date the appellant, who apparently is an air traffic controller in Mt. Hagen (a position which is undoubtedly of some considerable responsibility and importance and a position for which it would not be easy to find a replacement at short notice), wrote his letter saying that he was unable to get away from work. On the first occasion which he was to attend, it appears that he found his commitments at work too heavy to permit of absenting himself to Madang for one or two days but apparently he did not approach his superior and ask permission to attend at Madang Court House. I might add also that he had been given a month’s notice so that he could not complain about lack of time. On the second occasion, that is the 26th September, the occasion upon which just several days prior Mr Lofena had rung the Court House in Madang, I understand from appellant’s counsel that his superior flatly refused to grant him permission to attend the Court at Madang. If that were so, and I intend to take this matter up with the Public Service Commissioner, I regard it as very serious. A summons is not merely a request to appear at court it is in fact a command. The very wording of the summons reads:
TO: ERIC SIAM OF D.C.A., MT. HAGEN
WHEREAS A COMPLAINT THIS DAY HAS BEEN MADE ... etcetera ... THESE ARE THEREFORE TO COMMAND YOU TO APPEAR BEFORE THE DISTRICT COURT AT MADANG ON THURSDAY THE 28TH AUGUST 1980.
Now in criminal cases, of course, there are many instances where if the defendant does not appear the magistrate will issue a warrant. There are other cases of course which are so minor in nature that the courts will deal with them ex parte, although I’m not sure what the policy is in that regard at the moment. In civil cases it is unusual to enforce the command to appear. After all, it’s an argument between individuals and if one of them doesn’t want to turn up at court, that is his business. But, nevertheless, it is still a summons commanding attendance and if the defendant does not turn up, he does so at his peril. Now the command of course is backed by the laws of the country and it is absolutely essential to the proper administration of justice that the courts be able to carry out their work without hindrance from other parties. It is bad enough if an employer in private enterprise were to engage in conduct of the nature alleged by the appellant. It is completely unacceptable that such rude and improper behaviour be propagated on the part of a government or semi-government instrumentality. The complications that can set in from failing to observe a summons and more particularly as a result of a superior officer refusing to grant leave for an individual to attend at court, are well illustrated in this case. The respondent has apparently been without financial support for over a year now. The case was heard in September, the matter has gone on appeal and as will become apparent, it is still not finished. In my view the attitude of the employer or the senior officer representing the employer is largely responsible for the inconvenience, anguish and waste of the taxpayers’ money that has emerged as a result of this lack of attendance on the 26th September. It may of course have been the case that the appellant gave such short notice to his employer that it was impossible to arrange a replacement. I can assure the public that if indeed such was the case, I would be greatly disposed to awarding costs against the appellant even if he were successful on the appeal.
The defendant/appellant has a constitutional right to a fair hearing. That doesn’t mean of course that he may lead the other party to the dispute, or the court, a merry dance. He in fact has been given that right in this instance, though it has been inhibited by the workings of the bureaucracy. I am not saying in this case that the magistrate was wrong in exercising his discretion and thereby deciding to determine the matter ex parte. But it is unfortunate that in all the circumstances he did not grant at least on further adjournment. Maintenance cases can be very complicated affairs and the court depositions disclose that there was insufficient enquiry as to the means and amount of income of both the wife and the husband. There were a number of issues which required clarification and unfortunately no attempt was made to obtain that clarification from the complainant herself. All that she says is that she was married according to “our custom”. Where they were married, when they were married and whether it was a proper customary marriage recognised in the village and by the elders and the people of the area, I do not know. It is just a bald statement. Section 23 of the Act sets out certain specific requirements whether the marriage be by statute or custom. Likewise there is no evidence as to the defendant/appellant’s income or his debts or liabilities and similarly we have no idea whether the complainant herself has any source of income apart from what she would expect from her husband. All in all, I would uphold this ground of appeal on the basis that a case of this nature where word had at least been attempted to be got through should have been adjourned at least for one further occasion, even if it was for only a couple of weeks. The magistrate’s decision is understandable. After all, the person before the court was an unsupported wife and mother according to her view of the facts and she had been in that condition for quite some considerable time.
Coming to the second ground of appeal (no jurisdiction), it is clear from his letter that the defendant/appellant has submitted to jurisdiction. He says for example: “I would like to come to defend my case. However, due to work commitments I am unable to make it. I would like the case to be adjourned or postponed and to be heard on Friday the 26th September.” So he has chosen the date himself. “I wish to present myself at this date and defend my case.” There can be no doubt that he has submitted himself to the jurisdiction of the court. But is that enough? Section 29(5) (a) of the District Courts Act says:
“Subject to this section, a court has jurisdiction when:
(a)      the defendant, or one of two or more defendants, as the case may be, is usually resident, or carries on business;
in the area ...”
Now there can be no doubt, in view of the address on the summons, that the defendant was prima facie resident in Mt. Hagen. There are many authorities which illustrate the fact that inferior courts are bound strictly by the powers and jurisdiction given to them in their establishing statute and in any Acts which they may be specifically empowered to apply. There are a number of District Courts in Papua New Guinea, now popularly called Provincial Courts. The original reason of transportation difficulty, though not so obvious today, was clearly the reason for having these courts in different centres, although in terms of cost to the majority of citizens of the country if they have to travel by air, the same difficulties exist. The requirement of residence is not covered in the affidavit by the appellant although he does have in the opening words of the affidavit a Mt. Hagen address. However, in the circumstances, it seems fairly clear to me that the defendant was and is resident and not merely visiting or using a Mt. Hagen address for convenience. There is no finding to this effect by the magistrate. There are many good reasons for the existence of s.29(5)(a) although on occasions such as this, it can work genuine hardship. I think it is becoming increasingly difficult these days with a large number of national officers moving about the countryside, not having married accommodation very often when they arrive at their place of work and having to leave their wives back in the village or maybe back in another town until accommodation is available. It is clear that this situation is going to arise more often and I would strongly recommend to the authorities that a provision is added to the District Courts Act which would allow defendants by consent to have a matter heard in a district outside the one in which the defendant resides. I can well imagine there will be occasions upon which both parties would agree that to have the hearing in one place would be much cheaper all round than to have it in another, and of course in civil cases particularly, both parties must remember that the losing party is going to be up for costs. Put the question of course is: Can be, resident in Mt. Hagen, consent to a hearing in Madang? On first principles I would think not. The court only has jurisdiction if the defendant is resident within the court’s locality. If he is not resident, then the court has no jurisdiction over him to issue the summons. We’re not dealing here with a superior court where consent to jurisdiction is not an uncommon thing. We have an inferior court, a court of statute whose jurisdiction is clearly defined in the terms of the statute and a court which must live within the four corners of that statute. With the limited library facilities in Madang, I have not been able to research this matter to the full extent I would like, but there are some useful references in Kennedy Allen’s “The Justices Acts” 3rd Ed., which I read out in part to counsel yesterday. At p.326 the learned author has this to say.
“Parties cannot by agreement confer upon any court a coercive jurisdiction which the court does not possess.”
Now I have not been able to find an explanation of what is meant by the learned author and several of the judges in the cases cited by the author as to what exactly “coercive jurisdiction” means. It would seem to me that if the court has a power to enforce the attendance of a party, if it has a power to enforce judgment against the party either by issuing proceedings in execution of property or more particularly, as in the case of the Deserted Wives and Children Act, issuing process which will result in the imprisonment for non-payment by a defendant, that would seem to me to be a co-ercive jurisdiction. Of course Kennedy Allen is directing his attention primarily to criminal matters and we are not dealing with a criminal matter, although as I say, failure to observe the terms of the order can result directly in criminal sanctions insofar as imprisonment may be imposed. But it seems to me that what Kennedy Allen says in relation to criminal matters has equal application to civil cases. We refers to Volume 2 of “The Queensland Justice of the Peace” at p.129. Fortunately this work is available in Madang and on that page there is an interesting article entitled “Consent to Criminal Jurisdiction”. I refer particularly to a case cited at the bottom of p.130, In Re the Bishop of Natal[cdxcix]1 . Now despite its quaint factual situation and its ancient vintage, I think the case still has some pertinence to the problem before me. In In Re the Bishop of Natal (supra[d]2) was a petition to Her Magesty in Council by the Bishop of Natal complaining of the legality of the proceedings taken against him and alleging the nullity of the sentence announced thereon by the Lord Bishop of Capetown as Metropolitan of the Cape of Good Hope, for erroneous doctrines and teachings, and sentencing him to be deposed from his office of Bishop. The court, after pointing out that there was no jurisdiction, said:
“The argument must be that both parties being aware that the Bishop of Capetown had no jurisdiction or legal authority as Metropolitan, the appellant agreed to give it to him by voluntary submission. But even if the parties intended to enter into any such agreement (of which, however, we find no trace), it was not legally competent to the Bishop of Natal to give or to the Bishop of Capetown to accept or exercise any such jurisdiction.”
These words of course make the relevance to the case quite clear. This, as the learned author points out, was a case of ecclesiastical law and not criminal so that is one reason why I feel that the principle extends outside the criminal area. The article is also very useful for giving me the only source I have at the moment for what apparently is regarded as a leading case in this area, namely Farquharson v. Morgan[di]3, (mid. p.131). At p.560 of the report Lord Justice Davey said:
“There are two principles which are ingrained in our law. One is, that parties cannot by contract oust the jurisdiction of the Queen’s Courts. This has been somewhat modified by the power given to the Court by s.11 of the Common Law Procedure Act, 1854 ...
The other principle is correlative to the first: it is that the parties cannot by agreement confer upon any Court or judge a coercive jurisdiction which the Court or judge does not by law possess. To do so would be an usurpation of the prerogative of the Crown, and it has always been the policy of our law as a question of public order to keep inferior Courts strictly within their proper sphere of jurisdiction ... It follows that a party may, notwithstanding that he has contracted to have the dispute decided, or a decision in the matter enforced, by a Court not possessing by law jurisdiction, refuse to be bound by his contract and object to the jurisdiction, subject to the provisions embodied in the Arbitration Act, 1889, so far as applicable. It also follows that jurisdiction cannot be given by acquiescence. These principles are so well known that they need no illustration from decided cases or other authority.”
The learned author continues (at p.132):
“As justices exercise a limited local statutory jurisdiction, it is their duty to see whether cases brought before them fall within the defined ambit of the statute, and to decline to make an order if, and so far as the matter is outside their jurisdiction.”
So there are two important points arising from the article, namely that consent does not give a court jurisdiction or coercive jurisdiction where a court does not have jurisdiction in the first place under the statute under which it operates, no matter how much the parties may wish otherwise, and secondly, the duty on the magistrate to ensure that he does have proper jurisdiction. On the face of this summons it should have been apparent to the magistrate, had it occurred to him, that there was certainly some difficulty in the way of applying s.29 (5)(a).
A further reference may be found in Volume 46 of “The Queensland Justice of the Peace” at p.115 to a decision of Mr Justice McClemens in the Supreme Court of New South Wales which deals with a maintenance matter entitled “Ex parte Garratt; Re Garratt”[dii]4. Although this is not a report of the case, it does contain certain quotations of some relevance to our problem. I refer particularly on p.116 of the article to the following statement by McClemens J.:
“This in my opinion is not a case of the magistrate having made a wrong decision either of fact or law within the limits of his jurisdiction, or even as to the limits of his jurisdiction ... but a failure to comply with one of the necessary conditions that must be complied with before the magistrate can have jurisdiction at all to make an order. The view I take, I think, finds support in what the Chief Justice of the High Court, Sir John Latham, said in Yirrell v. Yirrell ((1939) 62 C.L.R. 287, at p.297): ‘It is a well-settled principle that where total absence of jurisdiction appears on the face of the proceedings in an inferior court the court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior court ...’.”
If I am correct in my view that this is a matter of “coercive jurisdiction”, and a failure by the magistrate to note that the defendant was residing outside the jurisdiction is a matter which could be regarded as on the face of the proceedings, it would seem, on the authorities I have quoted, to mean that irrespective of the wishes of the parties they cannot consent to the court hearing the matter. On that basis therefore the magistrate should not have dealt with the matter.
However, there is another aspect, namely s.29(5)(b):
“... a court has jurisdiction when:
(b)      the cause of action wholly or partly arose;
in the area for which the court is constituted.”
Now, although the appellant says in his notice of appeal that the separation occurred in Port Moresby, I am not at all convinced that the separation may not have arisen at a point later in time. I will not say anything more about this matter as it is something which the magistrate will have to investigate and make up his own mind about. Suffice it to say, counsel for the respondent has said from the Bar table (with my acquiescence), that there was some arrangement when the parties separated in January 1980 in Port Moresby for the appellant to come back to Madang or send down to Madang for the complainant to rejoin him in Mt. Hagen. It’s clearly an issue that has to be ventilated and a decision made by the tribunal. I am not prepared to find that s.29(5)(b) has no application and I would dismiss the appeal on that ground.
Ground 3 relates to the amount adjudged as a proper sum for maintenance. It is really not necessary for me to consider this ground in view of my ruling on ground 1. But certainly, the material upon which the award was based is most unsatisfactory. There is no evidence of the defendant’s income or of his expenditure or liabilities. This of course could have been obtained, even in an ex parte hearing, although it would require a knowledge of legal procedure and practice and could hardly be expected to be done by the young lady herself. A subpoena issued on the defendant’s employer would at least obtain an accurate figure on his fortnightly wages together with such expenditures as income tax and superannuation. There is no evidence either, as I have mentioned earlier in this judgment, of such if any income the wife receives and the amounts which she is required to spend in respect of herself and the children week by week. Indeed there was no proper enquiry at all and there is certainly an obligation on the magistrate under the terms of the Act to carry out a proper investigation as to means, as well as a proper investigation as to whether or not there was a marriage. In the transcript of proceedings we find this brief note only:
“I want Eric Siam to pay me and the said child Terrence and the newly born baby Maureen the sum of K50.00 total each fortnight, that is me K25.00, Terrence K15.00 and Maureen K10.00.”
If the magistrate’s notes represent all that was said at the hearing, they do not in my view comply with the requirement under the section to enquire into the means of the parties. I think this section is mandatory - that is, the court shall enquire into the matter of the complaint and “enquire” means and it has been held to mean “a proper and full enquiry”. If it were necessary to do so I would also uphold this ground of appeal.
The order of this Court therefore is as follows:
1.       That the order of the Madang District Court against Eric Siam in favour of Lamus Lom awarding maintenance in the sum of K50.00 per fortnight for and on behalf of the said Lamus Lom and her two children is hereby quashed.
2.       A further order that the case be remitted back to the District Court Madang for hearing on 19th March 1981.
Solicitor for the Appellant: A. Amet, Public Solicitor
Counsel: M. Sevua
Solicitor for the Respondent: L. Gavara-Nanu, A/Public Prosecutor
Counsel: V. Noka

[cdxcix]3 Moore N.S. 115; 16 E.R. 43
[d]3 Moore N.S. 115; 16 E.R. 43
[di](1894) 1 O.B. 552
[dii]69 W.N. (N.S.W.) 106