N344(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN

GABRIEL MAIONI
APPELLANT

AND

JOSEPH NGUS (NO.1.)
RESPONDENT

Kieta: Quinlivan AJ
12 August 1981; 14 August 1981

APPEALS - Principles applying to appeals - Right of Magistrate to be treated "fairly".

"FAIRNESS" - the right and the dangers faced by country solicitors - efforts of solicitor to deal "fairly", frustrated by procedural rules which are inherited from other places and other circumstances.

PROCEDURAL RULES - "time limitation" on appeals; and - "town agents"

QUINLIVAN AJ: Although this appeal is listed for hearing, at this Sittings, on the grounds that the Magistrate:

(a) 	ought to have granted an adjournment because of appellant’s application to allow him to arrange for the attendance of his witnesses;

and that

(b) 	the magistrate did not afford a fair opportunity to appellant to be heard ...- both of which are grounds which reflect very seriously against the magistrate - there have been developments which require that I produce an interim report of the situation.

Those grounds of appeal have now been withdrawn, not because of what must, by now, be well known to be my attitude to the unjustified making of such allegations against magistrates but for other reasons which I will mention later. The appeal, before me, turned itself into an application, firstly, to make certain amendments to a bewildering collection of documents and, finally, to an application for leave to add two new grounds of appeal which, in their turn, have now become the actual (and only) grounds of appeal in the case.

Since the documents are, as I have said, in a very confused state - and since the reason for this points to a need for consideration, by the proper authorities, of the present situation regarding appeals -I feel that something more than the mere endorsement of my grant of leave is called for. Since I also feel that the two statements which I made in Open Court should be recorded, I have decided that that "something more" should be in the form of a report by me of what has transpired.

The true reason for the problem is the fact that the appeal comes from Hutjena which, although it is joined with the jet-airport of Kieta by a main highway, is terribly isolated as far as "the law" is concerned. By this, I mean that the appellant had to go to Kieta/Arawa before he (and his group, for this is a "group action") could see a lawyer and that solicitor, in this turn, had to employ an agent in Port Moresby before he could file any documents in the Registry of this Court. And the Registrar of this Court has to go through the "town agent" instead of being able to deal direct if there are any matters which he feels should be drawn to attention in regard to the documents filed.

The relevant facts are that on 27th January, 1981, a civil action for "destruction of 560 young cacao trees valued at K1,000.00" was dealt with in the District Court at Hutjena in the north of the North Solomons Province and appellant and his group, having lost the case, were ordered to pay K760.00 to the present Respondent.

On 16th February, 1981 the appellant saw his solicitor at Arawa and gave him instructions for an appeal to be instituted. Although those instructions were given ten days before the period of "one month" laid down by section 226 (2) of the District Courts Act were due to expire the solicitor at Arawa had to face a very real problem - one which most solicitors who have set up to practice in country towns must have to face often. I have, in a number of judgments, pointed to the necessity for every person who institutes an appeal to do so in a responsible way. The processes of this Court are not to be trifled with. Nor are the rights of Magistrates, the rules of natural justice or the dictates of common sense or humanity. It is very hurtful, to say the least, and demoralizing - and, from this point of view, if no other, dangerous to Society - if unfounded allegations about people being denied their obvious rights in Court are made. And although I have only had ten or eleven appeals brought against me - and a number of those were "test cases" brought solely for the purpose of an appeal being lodged so they do not count (and although a dozen appeals in fifteen years must be something of a record) - I know from bitter experience what I am talking about. But there is no need for me to (as I say an appellant must) "condescend to particulars". What I am saying is, I feel, self-evident -especially in this country where people have, traditionally, always shown the highest respect for all institutionalized courts, great and small.

For a lawyer (as I pointed out at page 5 of Appeal of Kunjip Dai, his/her professional ethics "are particularly strong in this regard". Because of this, the restraints are even greater. He/she must, as I pointed out at page 4 of Appeal of Martin Yagom:

"do all they can to make sure that while the right of appeal is not denied to any person entitled to exercise it, it is not used for purposes which undermine the administration of justice".

Odysseus lost six heroic men in his classic attempt to navigate between his peculiar Scylla and Cherybdis and Mr. Siara has had his moments of terror also. I feel that the proper authorities might, with profit to Society, consider whether the members of the legal profession who attempt to serve the needs of the people in our country areas ought to be subjected to such worries. They could, I feel, be easily removed by putting the "time limitation" on a sliding scale (as service of court process normally is) and by the abolition of compulsory (as distinct from the discretionary) employment of "town agents".

Mr Siara, the solicitor involved, realizing the need for him to make every possible effort to verify what his clients had told him, telephoned the Courthouse at Kieta and asked for advice as to the best way for him to see the record of the case. The authorities there (as is normal in this country) did everything they could to help. They pointed out that, in the normal course of post, it would take two weeks for a copy of the record to be available in Arawa but that, in the circumstances of this particular case, they would make every effort to see if it could be obtained in one week.

This, however, would leave very little time for Mr. Siara to prepare the Notice of Appeal, and have it served, within the time limited for appeal. And, presumably, he knew that the two weeks and one week estimates which had been given to him were on the unrealistic side. Whatever the reason, he rushed the matter on 25th February relying on the allegations mentioned because (as he says in paragraph 6 of his affidavit of 13th August):

"Without the depositions on hand I was skeptical to believe that the Respondent’s witnesses had "lied" to the Court."

The Notice of Appeal was served and filed. When the Record of the Court appealed from eventually did come to hand Mr. Siara immediately (and I am here quoting from paragraph 10 of the affidavit I have mentioned):

"instructed my city agent ... via telephone and post to file an amendment to the original Notice of Appeal."

It was here that the second part of the sorry story occurred. I now refer to my notes because, when I asked why there was duplication of documents, Mr. Siara said:

"We sought to have the amendment made when we got the depositions but when we sent the documents over to our agents in Port Moresby there was a hold-up"

This "hold-up" was clearly not the fault of the city agent, as is made clear by the fact that there are actually two separate applications to amend the Notice of Appeal on the file before me. But neither of them has had any effect. In particular, the Magistrate whose decision was appealed from has never been advised of the attempt to amend the grounds of appeal. Neither has the Respondent. Everyone is still under the impression that the appeal is on the basis that there was, on multiple grounds, a denial or justice.

Those allegations have now been unequivocally withdrawn and I have granted leave for the two grounds which Mr. Siara says would have been raised, had the depositions been available, to replace them. Because of this it could be said that there is no reason why this appeal cannot be heard instanter. This, however, is not so. The Respondent is under the impression that the appeal is on the original grounds and he must, in law, be presumed to have taken advice - see Fitzgerald v. Fitzgerald - which would have been given on that basis. Such advice, however, could quite easily be (probably would be) totally different from what it would have been had his legal advisers been aware that the sole grounds of appeal are:

"(1) 	That the decision was against the weight of the evidence; and

(2) 	That there was no evidence upon which the learned Magistrate could properly arrive at the decision he made."

Moreover, there is the fact that the magistrate is entitled, under the modern interpretation (which I mentioned at page 6 of Appeal of Tomi Orabi) of section 231 of the District Courts Act to put his side of the story.

Although I do not think that, now that the grounds of appeal are what they are, the Magistrate will wish to exercise his right to put in a report, the law is the law and I am its servant. And "certainty" and regularity being the hallmarks of the law, he must be given his chance to say yea or nay to whether he wishes to exercise that right. The Respondent, most certainly, must be given his opportunity (as distinct from the notional one, expressed, in Fitzgerald v. Fitzgerald, in these words:

"when a man has appeared in a suit, it must be taken that he furnishes his solicitor with the necessary information to conduct the cause")

to seek proper advice.

I have complimented Mr. Siara, in Open Court, on the efforts which he made to rectify the intolerable situation which existed in this appeal - as it has in so many others - and I think it proper that I repeat those remarks here. He has lost no dignity by the efforts he made to correct the situation. On the contrary, he has gained greatly both in dignity and in professional stature.

Part of the cause of this situation is the danger which I have already said can, in two ways, be easily averted by the Legislature. The real cause of the situation is the fact that, during a period in the not distant past, the proud tradition of maintaining proper standards, which we used to have, was not adhered to. We are now, happily, on the road back to proper standards but the task is a long and difficult one because, once an atmosphere is allowed to develop, it affects everyone and permeates everything. This can best be seen by the fact that, although I (who always took the most difficult and "dangerous" cases) have, as far as I can remember, only had ten or eleven appeals brought against my decisions over fifteen years on the District and Local Court Benches, this is the fourth or fifth such appeal that I have had in the seven months I have been on this Bench. And circuits are allocated on a completely random basis so, when one takes account of the fact that there are ten Judges doing circuits, that gives a sample of 70 cases per year. One such case per year is more than enough but the four or five before me indicate that the problem is still at "plague proportions". It would be totally wrong for anyone to gain the impression that it is Mr. Siara who is at fault. It is the general atmosphere which is at fault. I have said that there has been a very great improvement over recent years but that improvement is something which every lawyer must do everything in his power to expedite.

My order is that Mr. Siara serve a Notice of the new grounds of appeal on the Court appealed from, and on the Respondent; that the normal procedures set out in the District Courts Act apply to that Notice as if it were (as it in fact now is) the original Notice of Appeal and that the case be listed for hearing in due course.

Solicitors for Appellant: Messrs REUBEN & ZESUS, Arawa.