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Mong v Mong [1997] PNGLR 171 (26 September 1997)

[1997] PNGLR 171

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TONY MONG

V

YONG MONG

MOUNT HAGEN: INJIA J
20 June, 23, 25 July, 26 September 1997

Facts

The appellant appealed to the National Court after he was ordered by the Mount Hagen District Court to pay maintenance in the sum of K80.00 every fortnight for the upkeep of the respondent and their two children. During the trial in the court of first instance the parties were unrepresented.

After the decision was handed down by the Mount Hagen District Court the appellant engaged the services of a lawyer. The appellant’s counsel then filed the necessary appeal documents stating the grounds for the appeal. The appeal documents contained a number of factual errors.

Held

1. The appeal documents filed by the appellant fail to comply with correct procedures prescribed by relevant statute.
   
2. A lawyer acting for a client for a fee must be diligent in his efforts to ensure his client’s case is given a fair hearing by the courts.
   
3. Family courts are in effect District Courts as they are not creatures of any statutes.
   

Papua New Guinea cases cited

ABCO Transport Pty Ltd v Timothy Sakaip N1577 (1997)

Nikints v Rumints [1990] PNGLR 123.
Pyakawa v Wete OS 276/96, unpublished National Court decision of Injia, J. handed down at Mt. Hagen on 13 September 1996.

Counsel

A Kwimberi, for the appellant.
M Bayam, for the respondent.

26 September 1997

INJIA J. This is an appeal, which was heard on the dates indicated above, and counsels for both parties were asked to file written submissions, which they have done. Much of the submissions relate to the Magistrate’s findings on the evidence and the reasons for decision. It is not necessary, however, to deliberate on those submissions. I have decided to dismiss the appeal on grounds of competency.

In this appeal, much confusion is raised by the court forms used by the lower court concerned and the appeal documentation prepared and filed by the appellant’s lawyer. In the end, I am left wondering which decision of which court is being appealed against. Let me elaborate. In May 1995, the respondent in this appeal took out maintenance proceedings against her husband, the appellant, claiming that he had left her and their two children (both daughters) without adequate means of support. The complaint form used and the Summons to a Person Upon Complaint was the District Court forms. The matter first came for mention before Magistrate J. Temop in the "Family Court" on 25 May 1995. Subsequently, after a few adjournments, the matter proceeded to trial before Magistrate B. Jacobs. Both parties called evidence and they were cross-examined. They were unrepresented. After the end of the evidence, on 8 December 1995, the matter was adjourned to 19 January 1996, for decision. On 19 January 1996, the respondent was present to receive judgment, but the appellant was not. At that time the appellant was in Port Moresby attending a course. He claimed that he sent in a request to the court to adjourn the matter. The Magistrate however proceeded to convene the Court. She delivered judgment in favour of the complainant, and ordered the defendant to, inter alia, pay a total of K80.00 in maintenance for the respondent and her two children, and committed custody of the two children to the respondent. The Magistrate gave full reasons for the decision, which she published, in court. Those reasons were transcribed in her worksheet and the typewritten form of her decision and reasons for decision are now available before me.

On 14 February 1996, upon learning of the decision which the appellant referred to as an "ex-parte judgment", he filed a motion with supporting affidavit, seeking to set aside the "ex-parte judgment" and sought a fresh date for "mention/hearing" of the substantive matter. However, this motion was misconceived. Magistrate Jacob’s decision was made after an evidentiary hearing and it was simply handed down on 19 January 1996. Strictly speaking, it was not an ex-parte judgment, which could be set aside under s 25 of the District Courts Act. On 31 March 1996, this motion came before Magistrate J. Temop who correctly struck out the application saying:

"The trial has been conducted in the presence of the complainant and the defendant. The Court made its decision after the full trial had been conducted.

The decision was not made in ex-parte hearing and therefore, the applicant (defendant) has taken the wrong cause of action by filing a motion. The applicant instead should appeal against the decision of the Court"

Again when this decision was made by Magistrate Temop, the appellant was not present whereas the respondent was.

From here, it seems the appellant sought legal assistance from Paulus M. Dowa Lawyers. On 8 May 1996, Dowa Lawyers filed an application in the National Court seeking "Leave to file out of time, appeal against the Local Court’s decision, dated 19th January 1996, by Betty Jacobs ordering the plaintiff to pay a sum of K80.00 per fortnight........." On 24 May 1996, the National Court granted the appellant leave "to file appeal documents within 14 days as of the date of the order herein". Pursuant to this order, the appellant was expected to file appeal documents in accordance with the relevant appeal rules pertaining to appeal from a decision of the Local Court. These rules are found in Order 18 of the National Court Rules. However, on 5th June 1996, Paulus M. Dowa Lawyers erroneously filed appeal documents in accordance with the provisions of Part XI of the District Courts Act (Ch No. 40).

The first document filed was the Notice of Appeal filed pursuant to s 220. In this document, which was addressed to the Clerk of Court of the "District Court", the Appellant gave notice of "her intention to appeal against the order made by the District Court at Mount Hagen on 19th January 1996, whereby the Court struck out an application of the Applicant/Defendant to set aside the Court order dated 19 January 1996". However, no leave from the National Court was obtained to appeal against Magistrate Temop’s decision made on 31 March 1996. Leave was obtained only to appeal against Magistrate Jacobs’ decision of 19 January 1996. Further, Magistrate Temop did not make any order on 19 January 1996. Therefore, the Notice of Appeal was misconceived in these respects.

The Notice of Appeal was also misconceived in another more significant respect. That is, the grounds of appeal set out therein did not relate to the decision appealed from. The grounds of appeal set out in this Notice of Appeal were:

"1. The learned Magistrate erred in law in that there was no evidence to support his findings.

2. The learned Magistrate erred in law in that she failed to consider, the justification of the separation, under customs.
   
3. There was not enough evidence called to prove whether or not the Appellant has the capacity to pay as ordered.
   
4. The learned Magistrate failed to consider the fact that, the Respondent deserted the Appellant at her own accord because she was having an affair with another man."
   

These grounds of appeal relate to Magistrate Jacob’s findings of fact on the evidence and her reasons for decision handed down on 19 January 1996 whereas the decision appealed from is Magistrate Temop’s ex-parte decision of 31 March 1996 striking out the Appellant’s application to set aside the order of Magistrate Jacob made on 19 January 1996.

The second document filed was the Recognizance on Appeal filed pursuant to s 222. But it does not specify the date it was signed by the Magistrate and the appellant. Further, it uses a "District Court" form and says the complaint was heard by the "Local Court" at Mt. Hagen and "judgment was entered for the Appellant in the sum of K80.00 per fortnight commencing 19th January 1996".

The third document filed was the Entry of Appeal to the National Court filed pursuant to s 227. The cause of the matter of the Appeal is stated as "an adjudication by the District Court of Mount Hagen whereby it struck out Notice of Motion to set aside the District Court order dated 19 January 1996 and upheld the ordered judgment for K80.00 against the defendant every fortnight". However, leave to appeal against the decision of the Local Court at Mt. Hagen was granted by the National Court. Also, no decision was made on 19 January 1996 striking out any application to set aside any ex-parte order.

Upon a close perusal of all these appeal documents, I must say that the documentation is poorly drafted both in form and substance by the appellant’s lawyers. For example, the grounds of appeal set out in the Notice of Appeal are too broad and lack particularity and relativity to the Magistrate’s findings of fact and reasons for decision on the case.

To compound the problem, the court depositions provided to me shows that the Magistrates were using forms designed for District Courts, but the Magistrates’ working sheets they used provided to them, I suppose by the Magisterial Service, are entitled "In the Family Court held at Mount Hagen.... "Child Affiliation Proceedings". From what I know, there is no court in PNG established by statute called "The Family Court". The Deserted Wives and Children’s Act (Ch No 277) and the Child Welfare Act (Ch No 276) vest special jurisdiction in the District Court in "family matters" such as maintenance and affiliation proceedings in the District Court. The procedures applicable in dealing with such matters including appeals to the National Court therefore are those of the District Court. The Local Court is not vested with this jurisdiction. Therefore, any entitling of documents by parties or worksheets designed by the Magisterial Services for use by Magistrates should be appropriately entitled "In the District Court". To call it a "Family Court" creates confusion among the public including lawyers.

Lawyers should also be tedious in their work. They are representing clients. For lawyers representing clients for a fee, they owe a duty to their clients to ascertain these things through diligent enquires, draft, file appropriate documents, and seek appropriate orders in accordance with procedures prescribed by statute. If they are appealing against decisions of Local Court, then they should use the Local Court (Appeal) Rules, which is found in Order 18 of the National Court Rules. If they are appealing against decisions of a District Court, they should use the provisions in Part XI of the District Courts Act. These two Courts are creatures of different statutes and their appeal procedures are different.

Time and time again, the National Court has re-iterated that mandatory appeal procedures prescribed by statutes must be strictly adhered to: See Kiak Nikints v Moki Rumints [1990] PNGLR 123; ABCO Transport Pty Ltd v Timothy Sakaip N1577 (1997); and my unreported decision in Wete Pyakawa v Moni Wete OS 276/96 which I handed down on 13 September 1996 at Mt. Hagen.

This is an appeal which is clearly incompetent and improperly before this Court. The nature and extent of the breach of the statutory rules relating to appeals is so severe that in the exercise of my discretion, it must be dismissed for failure to comply with the correct procedures prescribed by the relevant statute relating to appeals in the various respects I have set out above.

Court Order: (1) Appeal is dismissed

(2) Costs of this appeal are awarded to the respondent.

Lawyer for the appellant: Dowa Lawyers.
Lawyer for the respondent: Public Solicitors.