N3063

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 438 OF 2005

BETWEEN

PATRIC HAINO
Appellant

And

RESENA SAI & OTHERS
Respondents

Waigani: Injia, DCJ
2006: 14 February, 1 March

APPEAL - From District Court - Failure to file genuine Entry of Appeal - Abuse of process - May result in dismissal of appeal - District Court Act (Ch. No. 40), ss.227, 227.

Cases cited in the judgment:
William Moses v Otto Benal Magiten N2023 (1999).

Counsel:
Mr Pidu, for the Appellant
Ms Meriambe, for the Respondent/Applicant

1 March, 2006

RULING

1. INJIA, DCJ: By Amended Motion filed on 13 February 2006, the respondents apply to dismiss the appeal on two grounds. The first ground is based on the appellant's alleged failure to comply with the mandatory procedural requirements of sections 219(1), 220(2), 221 and 230 of the District Courts Act, the main argument being that the Amended Notice of Appeal filed on 28 December 2005 was filed and served outside the time limit prescribed by these provisions. During argument, it was discovered that the Amended Notice of Appeal was filed without leave of the court, on the assumption that I had granted leave at an earlier hearing when this matter came before me. In fact I do not recall granting such leave and any comment I made on the need to amend the Notice of Appeal, to my recollection, were suggestive or advisory only and not directory. If leave were required to amend the Notice of Appeal, the appellant should normally apply for it by Notice of Motion. No such application was before me then and no such order granting leave was made. On this basis, I ruled that the Amended Notice of Appeal was irregular or incompetent. The only competent Notice of Appeal before me is the original Notice of Appeal.

2. The second ground was that the "entire appeal be dismissed  pursuant to s.266 and s.267 of the District Court Act for being irregular and abuse of process". The main argument is that Appellant failed to get the appeal ready for hearing before he filed the Entry of Appeal, hence the Entry of Appeal which was filed within 40 days after institution of the appeal, was not genuine and was an abuse of process. The Appeal Book was not ready then and not ready now and the appeal has not been fixed for hearing. 

3. Section 226 says that the Appellant "shall" enter an appeal for hearing within forty (40) days after institution of an appeal. Section 227 says failure to comply with s.226 results in nullifying the appeal and the Magistrate is empowered to enforce the decision appealed from as if no appeal had been lodged. In these two sections, there is no mention of the appellant filing a genuine entry of appeal or entering the appeal only after he or she is ready to proceed to a hearing. Counsel for the applicant Ms Meriambe relies on Justice Kandakasi's decision in William Moses v Otto Benal Magiten N2023 (1999). In that case the appeal was entered for hearing on the same day the appeal was instituted. His Honour considered this to be an abuse of process in that the appeal could possibly not be ready for hearing as from that day. His Honour treated s.227 as giving the National Court power to dismiss an appeal for failing to comply with s.226 in not filing a genuine entry of appeal - a power equivalent to Order 10 Rule 5 of the National Court Rules which empowers the court to dismiss a Writ of Summons for want of prosecution for failing to file and serve a notice to set down for trial.

4. I agree with His Honour that the National court has such power under s.227. Although the power is not expressly given, it is implicit in s.227. It may be an abuse of the appeal process in certain circumstances, to enter the appeal for hearing at any time within the 40 days when the appellant is actually not ready or is not expected to be ready for the hearing on the date fixed by the Court. By ready I mean taking and completing all steps including the compilation of an Appeal book, which are necessary for the appeal to be heard by the National Court. I do understand the chronic problem of delay by District court Clerks in supplying the District Court depositions, which is the main cause, at least in my view, for the delay in compiling the Appeal book. In such situation, the onus falls on the appellant to apply to the National Court for a waiver or extension of time to meet this requirement, under s.230.

5. In a situation where an entry of appeal is filed within the 40 days, the question whether the entry of appeal was genuine or an abuse of process is a discretionary matter to be decided after taking into account all relevant circumstances and considerations. If for instance the appellant files an entry of appeal early within the 40 day period but is not actually ready for hearing, but he files it in anticipation of getting the appeal ready for hearing before the 40 days expires, and if he takes meaningful steps to prepare the appeal for hearing in the remaining days of the 40 day period, then it is unreasonable exercise of discretion to dismiss the appeal simply because the appeal was entered for hearing at a particular point in time. If the appellant simply files an entry of appeal and does not take any meaningful steps at all to prepare the appeal for hearing on the date to be appointed by the Court, then it is only proper that the appeal be dismissed for that reason. The critical factor here is not the timing of the filing of the entry of appeal within the 40 days but meaningful steps taken within the 40 days to prepare the appeal for hearing before or after filing the entry of appeal. In order to decide this question fairly and properly, the question should be considered after the expiry of the 40 day period.

6. In the present case, a copy of the Notice of Appeal dated 14 November 2005 was filed in the National Court Registry on 18 November 2005. On the same day, the Entry of Appeal dated 14 November 2005 was filed. The District Court depositions were supplied to the Registrar on 16 November 2005. The 40 days expired on or about 24 December 2005. A draft index was filed on or about 3 January 2006 together with a request to the Registrar for an appointment to settle the index of the appeal book. The draft index is yet to be settled. The Appeal Book is yet to be filed and a date for the hearing is yet to be fixed.

7. There is no question that an entry of appeal was filed within time. The question is whether the entry of appeal was genuine. The District Court depositions were promptly supplied by the District Court some two days or so after a copy of the Notice of appeal was lodged with the National Court, I presume with some intervention by the appellant. The Court was closed for vacation from 20 December 2005 - 31 January 2006, yet the appellant filed a draft index of the appeal book during the Court vacation period. Since then both parties have engaged in interlocutory applications before this Court, some of which challenge the competency of the appeal, hence providing little time to the appellant to concentrate on advancing the substantive appeal to a hearing. In the circumstances, I am satisfied that the filing of the entry of appeal was not an abuse of process of the court. For this reason, I dismiss this ground.

8. In summary, the order sought in par. 1 of the respondent's Amended Notice of Motion is granted and the order sought in par. 2 is refused. Each party shall bear their own costs of this Amended Notice of Motion. The appellant's remaining motion is adjourned to 9 March 2006 at 9:30 a.m. for hearing.
________________________________________________________________________
Ms. Meriamba: Lawyer for the Appellant
Stevens Lawyers: Lawyer for the Respondent