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Waiye v Duako [1997] PNGLR 384 (14 March 1997)

[1997] PNGLR 384

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SAGUA WAIYE

V

NICK DUAKO; and
TRANS NIUGINI TOURS

MOUNT HAGEN: LENALIA AJ

7, 14 March 1997

Held

1. Where proceedings have been instituted in the District Court pursuant to s 28 of the District Courts Act Ch. No. 40 and such proceedings are transferred to the National Court for reasons of lack of jurisdiction, the National Court merely adopts what has been created in the District Court.
   
2. The amended statement of claim was filed in compliance with the order of the District Court and is thus valid for purposes of the plaintiff’s cause in the National Court.
   
3. By virtue of the District Court order made on 5th November 1996, all documents including the complaint and summons upon complaint and the amended statement of claim are adopted by the Registry for purposes of proceedings in the National Court.
   
4. There is no requirement therefore for a second amended statement of claim.
   

Counsels

A Kandakasi, for the plaintiff.
J Steel, for the defendants.

17 March, 1997

LENALIA AJ. By a notice of motion filed on 20th of February 1997, the defendants through their lawyer sought the following orders:

"1. The amended statement of claim filed on 2nd December 1996 be struck out;

2. The plaintiff’s lawyer filed an address for service within 15 kilometres of the Mount Hagen Sub Registry as required by order 6 Rule 7 of the National Court Rules;
   
3. Such further or other orders as the court sees fit;
   
4. The plaintiff pay the defendants’ costs of and incidental to this notice of motion".
   

The plaintiff in this proceedings commenced proceedings in the Mount Hagen District Court on 2nd of May 1996 by way of a complaint being filed in the District Court. On 21st of October 1996, the plaintiff’s lawyers were instructed to act for the plaintiff and were also effected by filing a notice of change of lawyers on 24th of the same month. From instructions received, the plaintiff’s lawyers were of the view that the plaintiff had a much more substantial claim than the amount he was claiming in the District Court. The original amount claimed in the District Court was K5,000.00. When the final figures were made available by the Department of Industrial Relations, it amounted to K16,469.73 plus various other items it was finally calculated at K84,127.52.

By a notice of motion dated 30th October 1996 and filed on 5th November a month later, the plaintiff’s lawyers sought the following orders:

"1. the proceedings be transferred to the National Court;

2. the complainant be given leave to file and serve an amended statement of claim;
   
3. the costs of this application be in the cause;
   
4. the time for entry of these orders be abridged to the date of settlement by the magistrate/the Clerk of the Court, which shall take place forthwith;
   
5. further or such other orders as this Honourable Court deems fit";
   

This motion was heard ex-parte despite due notice by the plaintiff’s lawyers that the motion was set and listed for hearing on 14th of November 1996. His Worship, Mr Appa accepted the application and made ex-parte orders adopting the first four sets of orders proposed in the notice of motion.

Mr Steel’s contention is that at the time of the transfer of the proceedings, the pleadings had long since closed and the amended statement of claim filed on 2nd December 1996 was contrary to Order 8 Rules 50-58 of the National Court Rules of 1983. Division 4 of Order 8 rr. 50 and 51 say that at any stage of the proceedings, an amendment can be taken and a party is allowed to amend pleadings once at any time before the pleadings are closed.

Quite obviously this claim could not be maintained at the District Court since it was out of the principal magistrate’s jurisdiction placed by s 21 of the District Courts Act. Under s 24 (1) of the District Courts Act, proceedings can be transferred to the National Court at any time before judgement with or without an application from an interested party. His Worship, Mr Appa noted on the worksheet of 5th of November 1996 the following comments.

"I am satisfied with the affidavit containing reasons for the application and considered that the matter should have been lodged in the National Court in the first instance. The Complainant intends to amend the statement of claim, which is going to exceed this Court’s jurisdiction. Its only proper that this case be transferred to the National Court for hearing and determination".

In matters where the District Court has concurrent jurisdiction with the National Court, s 23 of the District Courts Act says that if the District Court is of the opinion that in all the circumstances of the case, the matter is a fit subject for determination by the National Court, it should abstain from adjudication and the matter should be transferred accordingly.

Mr Kandakasi argued that they stand by the orders of the District Court and there was no need to have any further statement of claim as the amended statement of claim was filed pursuant to orders by the District Court on 5th November 1996. He further argued that the defence has now criticised them for what appears to them to be no defect at all and on the other hand the defence is equally at fault by not filing a defence within 14 days for the amended statement of claim as required by Order 8 r 4 and 51 (a) (b) of the National Court Rules. He further argued why wait until this stage of the proceedings when the matter could have been resolved at an earlier stage by application to set aside under s 25 District Courts Act.

Mr Kandakasi deposed to a number of correspondences in his affidavit tendered over the bar to a number of correspondences of what transpired between the lawyers for the parties. By annexure "A" the writers indicated their intentions to apply to the District Court in Hagen to have the proceedings transferred from the Mount Hagen District Court to the National Court. They also indicated that since particulars of the claim were not fully set out to the extent of their client’s cause, it was necessary to file and serve an amended statement of claim. By annexure "B", the defence lawyers replied in the negative to the intended notice of motion and suggested that the proceedings already commenced in the District Court be discontinued and that fresh proceedings be instituted in the National Court. On 8th of November 1996 Young & Williams wrote to the defendant’s lawyers revealing that their client had filed a notice of motion before the Hagen District Court and was listed for hearing on 14th of November. Their letter fully set out reasons for the proposed application to apply for transfer under s 24 (1) of the District Courts Act. Subsequent correspondences show Young & Williams’ insistence on pursuing their intended notice whilst Warner Shand Lawyers kept expressing negative responses.

In my view, there is one issue to be addressed and that is what status does the amended statement of claim has when it was filed in the District Court under an order from that Court. I note from the file that there are other documents such as the complaint form and summons upon complaint that form the basis of the plaintiff’s claim but which the lawyers did not address quite properly because it was not put or raised in the current notice of motion by the defence lawyers. That being the case, I do not wish to venture into any discussion on the complaint and summons upon complaint. I take it that these documents are proper and valid for purposes of proceedings in the National Court.

By analogy and unlike in committal proceedings where an accused is committed either for trial or sentence to the National Court, s 118 of the District Courts Act specifically defines what documents to be transmitted to the Registrar of the National and Supreme Courts. Section 24 (1) of the District Courts Act provides:

"Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court".

Obviously from my reading of the above quoted provisions, there is no mention of what documents need to be transmitted to the National Court when a matter is transferred. What is abundantly clear from s 24 (1) of the District Courts Act is that, what is being transferred is "the proceedings". That is to say "the proceedings" that have been commenced in the District Court. My view is that it is the legislative intent that the proceedings is transferred as compared to proceedings instituted in the National Court under Order 4 Rules 1, 2 & 23 of the National Court Rules. This is the situation where these proceedings were already on foot in the District Court but were transferred due to lack of jurisdiction. The term "transfer" is not defined in the District Court Act. However the Oxford Advanced Learner’s Dictionary offers several definitions and meanings to mean "to move something or somebody from one place to another", or to "hand over the possession of property" to somebody else.

It is my view that when an order for transfer of the proceedings to the National Court is made under s 24 (1) of the District Courts Act, it simply means the transfer of all documents that were already filed in the District Court. The amended statement of claim that is now in dispute was filed in accordance with an order of the District Court and simply put; the National Court merely adopts or inherits what was created by the District Court.

In a situation where procedure is wanting or in doubt and the procedure is not prescribed by an Act or the Rules, I could use my discretion to give directions to the plaintiff to comply with certain procedural defect that might have otherwise developed during the course of the plaintiff’s dealing with his claim as required by Order 1 Rule 12 of the National Court Rules. But this is not the case here. I find there is nothing wrong with the amended statement of claim even though it was filed in the District Court or even bears the District Court intutulation. I must refuse the motion and give directions to the defence to file their defence to that amended statement of claim within 14 days. I also order costs in favour of the plaintiff to be taxed if not agreed.

Lawyer for the plaintiffs: Young & Williams Lawyers.
Lawyer for the defendants: Warner Shand Lawyers.