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Warave v Evera [1980] PNGLR 427 (21 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 427 - Wapoi Warave v Lahari Evera 

[1980] PNGLR 427

N269

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WAPOI WARAVE

V

LAHARI EVERA

Waigani

Kearney DCJ

21 November 1980

JUDGMENTS AND ORDERS - What is - Action settled - Terms of settlement not embodied in decision of court - Effect of settlement - No decision from which appeal lies.

APPEAL - Inferior Courts - Local Court - Action settled on terms agreed between parties - Terms of settlement not embodied in decision of court - Appeal incompetent - Local Courts Act 1963 s. 43(1).

Where proceedings in the Local Court are settled on terms agreed upon by the parties, and those terms of settlement are not embodied in the decision of the court, there is no decision of the Local Court from which an appeal will lie.

Green v. Roger and Ors. [1955] 2 All E.R. 797 referred to.

Such a settlement constitutes an independent agreement between the parties, enforceable, according to its terms, in the usual way.

Appeal

This was an appeal from a “decision” of a Local Court, the facts relevant to which appear in the judgment below.

Counsel

C. Marlow, for the appellant.

21 November 1980

KEARNEY DCJ: This is an appeal from a “decision” of the Local Court at Port Moresby given on 12th February, 1979, whereby the appellant was ordered to pay to the respondent K20 every fortnight, or K40 every month, until a total sum of K500 had been paid.

The respondent had complained to the Local Court that the appellant:

“did unlawfully have the custody of the child Joe Lahari M/C born on 6-3-69. Therefore the former father prays the Court to order the defendant under Section 16(1)(a) of the Local Courts Act 1963 as amended to date.”

Section 16(1)(a) of the Local Courts Act 1963 provides that a local court may award damages or compensation in a civil case. Under s. 16(3) the amount awarded cannot exceed K200.

A summons issued, and the parties appeared before the court on 13th February, 1979. The magistrate’s record of the proceedings is as follows:

“13/2/79. Called 3 times.

Both parties present.

Plea. “that was true but the child came to me by himself.”

Complt. “Ct. gave me all the kids. Therefore I want the defdt. to pay me only K500 and have the custody of the child.”

Both parties agreed that the defdt. has to pay K20 each fortnight or K40 each month till the total of K500 can be completed.

The first payment can be made through N.M.T.A. at Port Moresby.”

The magistrate has since made it clear in his report that he did not make a “decision” in the terms agreed above, but regarded his recording of those terms as “an Agreement Order made by the parties”. (Emphasis mine.) A question arises, as to what this means. Parties may (and frequently do) settle a dispute they have brought before a court, and there are then many different ways of disposing of the case; see, for example, the discussion in Green v. Rozen [dccvii]¹, when the settlement is arrived at, after the hearing has commenced.

There is no specific provision in the Local Courts Act 1963, for an “Agreement Order”, though, for example, this would be a fair description of a decision embodying a settlement arrived at by the parties, following mediation under s. 31. There is no indication of any mediation; I think the terms of the magistrate’s report indicate simply that the action was settled on the terms agreed, by the parties; and that there was no consent order of the court, embodying those terms of settlement, no decision of the court at all.

The appellant does not deny that he agreed to settle the claim, as indicated above. Such an agreement is binding on the parties, as their contract, even if it were incorporated in the judgment of the Local Court.

The appellant paid in the sum of K20 on 26th February, 1979. It does not appear whether he paid anymore.

The appellant has three grounds of appeal. I should say at the outset that in light of the view I take that the court made no decision at all, the appeal must fail; see s. 43(1). However, I deal briefly with the grounds of appeal.

The first is that the complaint disclosed no cause of action; the second is that no evidence was produced to support the complaint. It would appear that the claim arose out of some alleged custom — the complainant claims compensation as “the former father” — and the Local Court has jurisdiction under s. 13(1)(c) over “all matters arising out of and regulated by native custom”, other than some exceptions irrelevant for present purposes. The settlement arrived at by the parties removed the necessity for the complainant to establish the custom and the evidence to support his claim. The first and second grounds are accordingly incompetent, and fail.

The third ground is that the magistrate exceeded his jurisdiction, because under s. 16(3) of the Act a local court cannot award more than K200 as compensation. A local court is created by statute and can have no jurisdiction beyond that conferred on it by statute; in particular, parties to an action cannot by their consent confer on the court jurisdiction to award more than K200 as compensation. But the Local Court did not ultimately make any award under s. 16(1)(a) at all; if it had made an award of K500, even though by consent, that would have been in excess of its jurisdiction, and such a judgment would be set aside. Since there was no such award, the third ground of appeal also fails.

The position now is as follows. The parties settled the proceedings brought before the Local Court. No order of that court was obtained. The Local Court has no further jurisdiction in respect of the original claim. The settlement constitutes a new, independent and enforceable agreement between the parties, and has this effect:

(1)      The original claim before the Local Court is at an end;

(2)      No further steps can be taken in those proceedings, and in particular the settlement cannot be enforced in these proceedings;

(3)      The agreement supersedes the original cause of action altogether;

(4)      In order to enforce the terms of the settlement, it is necessary for Mr. Lahari Evera to institute proceedings in the District Court, because the amount involved is beyond the jurisdiction of the Local Court.

In general, it may be said that when parties agree to settle their dispute, it is desirable that the terms of their agreement be incorporated in a consent order by the court; provided, that is, that the court has jurisdiction to make an order in those terms. That would avoid the need to take fresh proceedings to enforce the agreement.

Appeal dismissed.

Solicitor for the appellant: D. McDermott, Acting Public Solicitor.

[dccvii] [1955] 2 All E.R. 797.