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Lee v Lee [1973] PNGLR 89 (29 June 1972)

[1973] PNGLR 89

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

LEE

V

LEE

Port Moresby
Kelly J

29 June 1972

APPEAL - Appeal from District Court - Oral reasons for judgment - No record made - True copy of reasons for judgment not available - Substantial miscarriage of justice - Rehearing - District Courts Ordinance, ss. 230 (1) (b)[lxxii]1, 231[lxxiii]2.

COURTS AND JUDGES - Appeal from District Court - Oral reasons for judgment - No record made - True copy of reasons for judgment not available - Report on proceedings by magistrate not appropriate - Necessity for record to be made - District Courts Ordinance ss. 230 (1) (b)[lxxiv]3, 231[lxxv]4.

In an action in the District Court for the return of money alleged to have been loaned the defendant alleged the money was a gift. The magistrate gave judgment for the plaintiff and the defendant appealed to the Supreme Court. Reasons for judgment were in fact given but were not recorded and no record could be supplied to the Supreme Court pursuant to s. 230 (1) (b) of the District Courts Ordinance. As reasons for judgment were in fact given no report setting out the reasons for the making of the adjudication was or could be furnished to the Supreme Court by the magistrate pursuant to s. 231 (2) of the District Courts Ordinance.

Held

(1) It is the duty of an inferior court to give reasons for its judgment and a mrate d wheing his reas reasons mons make aake a sufficient note of them so that compliance with s. 230 (1) (b) of the District Courts Ordinance is possible.

(2) ¦&#1t ; It is a substantial miscarriage of justice to give a decision in f of ay and make iake it impt impossibossible for the reasons for that decision to be examined on appeal.

(3) &  Thy onlperroper course in the interests of justice was tit the foraring before the District Coct Court.

Appeal from District Court

This was an appeal by the defendant against a decision of a stipendiary magistrate in an action for the return of money alleged to have been loaned.

The relevant facts and arguments of counsel are sufficiently set out in the reasons for judgment.

Counsel

M. F. J. Campbell, for the appellant.
M. F. Adams, for the respondent.

29 June 1972

KELLY J: This is an appeal against the judgment of the District Court at Port Moresby in a matter in which judgment was given for the respondent for the sum of $310. It was not in dispute that this sum had been paid by the respondent to the appellant. The evidence before the magistrate showed that the respondent claimed that the sum was a loan whereas the appellant claimed that it was a gift.

The learned stipendiary magistrate gave oral reasons for his decision, but the court was told that these were not reduced to writing and that it is not possible for a true copy of them to be supplied. No report in terms of s. 231 of the District Courts Ordinance has been furnished and this Court has been told that it is the magistrate’s view that no report under that section can be given. In the result, the reasons on which the magistrate’s decision proceeded are not before this Court and counsel for the appellant submits that since it appears that in terms of the District Courts Ordinance no steps can now be taken by this Court to have those reasons placed before it what should be done is to send the matter back for rehearing. Counsel for the respondent submits that I should assume that the magistrate, in order to come to the decision that he did, must have accepted the evidence of the respondent and another witness who gave evidence on his behalf, and that I could therefore properly proceed to hear and determine the appeal notwithstanding the absence of reasons.

The scheme of the legislation is that when reasons are given at the time when the decision appealed from is pronounced, a true copy of those reasons should be provided to the Supreme Court in the case of an appeal and that where no reasons are given the magistrate should on being notified of a notice of appeal, then make a report setting out his reasons. Cases such as the present where reasons were in fact given but no true copy of them can be provided are not contemplated by the legislation. As I would read the relevant provisions of the Ordinance it appears that the present circumstances I cannot require the magistrate to make the report provided for by s. 231 and likewise in view of his assertion that it is not possible to supply a true copy of the reasons which he in fact gave I obviously cannot require the Clerk of the court to provide such a copy.

The authorities cited to me clearly indicate that it is the duty of an inferior court to give reasons for its decision and for the very good reason that otherwise the appellate court called upon to review the decision of such inferior court has no means of knowing the basis upon which that court had proceeded to come to its decision. There was no authority cited which bears directly on the present case, that is where reasons were in fact given but have not been recorded and cannot be supplied to the appellate court.

I must say that I consider that the magistrate when he gave his reasons should have made a sufficient note of them so that compliance with s. 230 (1) (b) of the Ordinance would have been possible and the unfortunate situation which has developed here could thereby have been avoided. In this case the depositions show that there was a conflict of evidence on a most material matter and whilst it may well be that the magistrate resolved this conflict in the manner submitted by counsel for the respondent this may not have necessarily been so; the fact is that I just do not know the basis on which he arrived at the decision which he did.

The result is that I feel that I am compelled in the interests of justice to remit this matter for rehearing before the District Court. I think it is most regrettable that this course is necessary but I am compelled to conclude that in the circumstances this is the only proper course open. I can only hope that in future appropriate steps will be taken by magistrates when giving reasons orally for their decisions to ensure that an adequate note is made of them so that they may then be furnished to this Court in the event of an appeal being lodged and that there will be no repetition of the situation that has arisen here which can give no satisfaction to anyone.

I must, of course, have regard to the provisions of s. 236 (2) of the Ordinance which provides that an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice, as it seems that as far as the present appeal is concerned the course which I propose to adopt would necessarily involve allowing it. I have come to the conclusion that in this case it is a substantial miscarriage of justice to give a decision in favour of a party and then to make it impossible for the reasons for that decision to be examined by the Supreme Court.

The order I make is therefore that the appeal is allowed, the order of the District Court quashed and the matter is remitted for hearing before the District Court at Port Moresby.

Appeal allowed. Order of District Court quashed. Matter remitted for hearing before the District Court at Port Moresby.

Solicitor for the appellant: Miss M. Campbell, Public Solicitor’s Office.
Solicitor for the respondent: M. Adams, Public Solicitor’s Office.

[lxxii]Section 230 (1) (b) of the District Courts Ordinance provides:—

230. ҈ The clerk oerk of the court the decision of which is appealed against shall, immediately after n of a peal is lois lodged with him, forward to the Registrar of the Supreme Court a copy, certified by him to be a true copy, of—

(a) . . .

(b) the reasons given by the court for the making of the conviction, order or adjudication (if any reasons were given at the time when the decision was pronounced):

. . .

together, subject to the next succeeding subsection, with the original exhibits (if any) relating to the conviction, order or adjudication.

[lxxiii]Section 231 of the District Courts Ordinance provides:

231. ҈ Where no reno reasons were given by the court for the making of the convictorderdor acation, the clerkclerk of t of the court the decision of which is appealed against shall, immediately after the notice of appeal is lodged with him, notify the Magistrate who constituted the court by which the conviction, order or adjudication was made, of the notice of appeal.

(2) Immediately after being notified of a notice of appeal under the last preceding subsection, the Magistrate shall make in writing and forward to the Registrar of the Supreme Court a report setting out the reasons for the making of the conviction, order or adjudication.

[lxxiv]Section 230 (1) (b) of the District Courts Ordinance provides:—

230. ; (1) The clhe clerk of the court the decision of whs app agaihall,diately afterafter noti notice ofce of appe appeal is lodged with him, forward to the Registrar of the Supreme Court a copy, certified by him to be a true copy, of—

(a) . . .

(b) ټ &; the; the reasons given by the court for the making of the conviction, order or adjudicatif anyoreasons wens were given at the time when the decision was pronounced)

together, subject to the next succeeding subsection, with the original exhibits (if any) relating to the conviction, order or adjudication.

[lxxv]Section 231 of the District Courts Ordinance provides:

231. ¦); (1) Where no reasons were given by the court for the making of the conviction, ord adjuiicatton, the clhe clerk of the court the decision of which is appealed against shall, immediately after the notice of appeal is lodged with him, notify the Magistrate who constituted the court by which the conviction, order or adjudication was made, of the notice of appeal.

(2) &  t&#Imm; Immediately after being notified of a notice of appeal underlast drecesubse, the Mthe Magistagistrate rate shall make in writing and forward to the Registrar of the Supreme Court a report setting out the reasons for the making of the conviction, order or adjudication.