N668

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NAMBA KISPA

V

DOBEL MOTORS PTY LTD

Mount Hagen & Waigani
Hinchliffe J

18 February 1988
6 July 1988

INFERIOR COURTS - District Courts - Practice and procedure - Certificates of dismissal - Whether bar to further proceedings - Only where hearing on merits - District Courts Act (Ch No 40), s 162.

Held (Obiter)

Where a court dismisses an information or complaint and makes an order of dismissal under s 162 of the District Court Act (Ch No 40), a certificate of the order signed will only be "a bar to any other information, complaint or legal proceeding ... for the same matter against the same party", if there has been a hearing of the information or complaint on the merits.

Appeal

This was an appeal from the decision of a District Court magistrate refusing to set aside an ex parte order dismissing proceedings on complaint.

Counsel

J Pakau, for the appellant.
D L O’Connor, for the respondent.
Cur adv vult

6 July 1988

HINCHLIFFE J: This is an appeal from a decision of the District Court at Mt Hagen given on 22 April 1987.

Only two documents have been filed on the appeal and they are:

(1) An undated notice of appeal filed in the National Court on 22 May 1987;

(2) An undated entry of appeal filed in the National Court on 9 November 1987.

It is clear that the appellant has not complied with a number of sections of the District Courts Act (Ch No 40) (the Act) relating to appeals from decisions of District Courts. Section 220 provides:

"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 given notice of his intention to appeal by lodging, within one 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."

A notice of appeal has never been filed at the District Court and a recognisance on appeal has not been entered into pursuant to s 222 of the Act. In short no documents have been filed at the District Court.

Section 226(1) of the Act provides:

"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."

Because the appeal was not entered until 9 November 1987, the entry of appeal is not only incomplete, but it is also well out of time.

This matter is complicated further by the fact that the contents of the notice of appeal do not correctly refer to what actually occurred at the District Court on 22 April 1987. On that day the magistrate refused to set aside an order he made on 8 October 1986. The October order reads as follows:

"Plaintiff not present after notice. Plaintiffs action dismissed with taxed costs for non-appearance."

The plaintiff referred to in that order is the appellant in these proceedings.

It seems that the lawyer for the appellant was under the impression that the order of 22 April 1987 dismissed the original complaint. I say that because the notice of appeal reads, inter alia, as follows:

"Take Notice that abovenamed appellant being aggrieved by the decision of the District Court hereby appeals from the decision to the National Court.

(1) The decision appealed against is the decision of the District Court at Mt Hagen given the 22nd April 1987, whereby the Court dismissed the appellant’s complaint claiming a sum of K8500 against the respondent company.

(2) The appellant appeals against the whole of the decision.

(3) The grounds relied on in support of the appeal are as follows:

(a) That having regard to the nature of the complaint and having regard to the circumstances surrounding the delay in getting the matter listed for hearing the magistrate erred in dismissing the complaint.

(b) That the order was against the principles of natural justice.

(c) That the decision was oppressive and unfair.

(4) The order sought in lieu of the decision appealed against is that the decision be quashed and the matter be relisted for hearing."

The lawyer for the appellant did not seek to amend the notice of appeal. Even if he had done so, it seems to me that the notice is beyond amendment. It is incorrect to the extent that it could not be "patched up". It is beyond repair. Because of this, together with the appellant’s failure to comply with the relevant appeal sections of the Act, I am satisfied that the appeal must be dismissed.

During the course of the appeal, Mr O’Connor, who appeared for the respondent, submitted that the learned magistrate had no power in any event to set aside the order of 8 October 1986 because he would only have that power if he had been dealing with a default summons. Mr O’Connor referred to s 159 of the Act which provides for the setting aside of orders made in relation to a default summons. I do not agree with Mr O’Connor on that point because it is clear from s 25 of the Act that, "A conviction or order made when one party does not appear may be set aside on application to the Court ...".

I note that in the material presented on the appeal is a copy of submissions on behalf of Dobel Motors Pty Ltd. The submissions were in relation to the application to set aside the order of 8 October 1986. The last two paragraphs of the submissions read as follows:

"The dismissal of the complaint was completed pursuant to section 144 of the District Courts Act, Chap 40.

Once a complaint is dismissed the complainant cannot bring the complaint again. Section 162 District Courts Act."

That is not correct. Section 162 of the Act provides:

"162. Proceedings in Case of Dismissal.

(1) If the Court dismisses an information, complaint or set-off, it shall make an order of dismissal and shall, on application, give to the defendant or complainant, as the case may be, a certificate of the order signed by one or more of the adjudicating Magistrates or the Clerk.

(2) A certificate under Subsection (1) is, on its production, without further proof, a bar to any other information, complaint or legal proceeding in any Court in the country (other than proceedings on appeal) for the same matter against the same party."

On the face of it therefore, it would seem that the submission is correct. But not so. The case was never argued on its merits. It was dismissed because the complainant failed to appear at court. The word "dismiss" is the apt word to describe what is done when both parties appear, and the court, after hearing and determining the complaint, gives a decision adverse to the complainant. The order of dismissal set out in form 48 of Sch 2, wherein AB is informant or complainant, and CD defendant, after reciting the information or complaint, proceeds:

"Now on this day 19, at both the parties having appeared in order that the informant/complaint should be heard and determined (or CD having appeared before the Court, but AB, although duly called, not having appeared), whereupon the matter of the information/complaint being duly considered it appears to this Court that the information/complaint is not proved, the information/complaint is dismissed and it is ..."

It may be observed that where both parties appear, they appear in order that the case may be heard and determined. Where AB does not appear nothing is said about hearing and determining. But in every case the matter of the information or complaint is duly considered, and if it appears to the court that the information or complaint is not proved, the same is accordingly dismissed.

This form strongly supports the view that in order to justify "a dismissal" as distinguished from a "striking out", the information or complaint must have been heard on the merits. The case in which a complaint or information is dismissed for want of appearance may be explained on the view that, in such a case, the Act dispenses with the need for a hearing on the merits, and the information or complaint is found to have been "not proved".

There is no doubt that the case was not heard on the merits and therefore it seems to me that if the complainant so desired, he could commence proceedings again in the District Court. I am of the view that the nature of the dismissal on 8 October 1986 allows him to do so.

Needless to say I dismiss this appeal and order that the appellant is to pay the respondent’s taxed costs.

Appeal dismissed

______________________

Lawyers for the appellant: Joseph K Pakau & Associates.
Lawyers for the respondent: D L O’Connor.