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Bougainville Copper Ltd v Levi [1978] PGNC 18; [1978] PNGLR 221 (20 June 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 221 - Bougainville Copper Ltd v Masai Levi�

[1978] PNGLR 221

N159

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BOUGAINVILLE COPPER LIMITED AND MASAI LEVI

V

MATTHEW LIU

Kieta

Greville Smith J

20 June 1978

APPEAL - Inferior Courts - District Court - Magistrates report - Requirements of - Effect of delay in furnishing or failure to furnish - District Courts Act 1963, s. 231(2).

Section 231(1) of the District Courts Act 1963 provides that when a notice of appeal is lodged against a District Court decision, the clerk of the court shall immediately notify the magistrate appealed from of the notice of appeal and s. 231(2) provides that immediately after being so notified the magistrate shall make in writing and forward to the Registrar of the Supreme Court a report setting out the reasons for his judgment.

On appeal against a decision of the District Court, in an action for damages arising out of a collision between two motor vehicles, the magistrate appealed from furnished some two months after the notice of appeal, a document stating only that he had found the defendant wholly responsible for the collision and in consequence had given judgment for the plaintiff in the full amount of the claim:

Held

N1>(1)����� the magistrate�s report required under s. 231(2) of the District Courts Act 1963, should contain a statement indicating the main issues of fact and law that arose and the processes of reasoning by which and the principles of law upon which the magistrate resolved such issues, sufficiently comprehensive to allow the appellate court to decide whether or not the magistrate erred in the process by which he arrived at the decision he did: such a report should advert to the grounds of appeal stated in the notice of appeal.

N1>(2)����� Grounds of appeal should be stated with particularity so that the magistrate may know the issues to which he should direct his report.

N1>(3)����� The report received did not fulfil the requirements of the section.

Appeal

This was an appeal under the District Courts Act 1963 against a decision of a magistrate in an action for damages arising out of a motor vehicle collision. The matter is reported only on the subject of the adequacy of the magistrate�s report which was furnished pursuant to s. 231 of the District Courts Act 1963.

Counsel

R. Siara, for the appellant.

M. Ridsdale, for the respondent.

Cur. adv. vult.

20 June 1978

GREVILLE SMITH J: This was an appeal under the District Courts Act 1963 against a decision of the North Solomons District Court (Case No. 36/55/77), held at Kieta, in an action for damages arising out of a collision between two motor vehicles.

The magistrate in this case did not, when his decision was announced, give reasons. Section 231(1) of the District Courts Act 1963 requires that in such circumstances the clerk of the court shall immediately after the notice of appeal is lodged with him notify the magistrate of the notice of appeal, and s. 231(2) provides that immediately after being so notified the magistrate shall make in writing and forward to the Registrar of the Supreme Court a report setting out the reasons for his judgment.

Notice of appeal in this case was received in the Registry of this Court on 14th April, 1978, and the certified copy of the District Court Record, required under the provisions of s. 230 of the District Courts Act 1963 to be forwarded to the Registrar, was received on 9th May, 1978. No report required under the provisions of s. 231(2) was forthcoming until, on, or a few days before the date of hearing of this appeal, namely the 20th June, 1978 when the magistrate furnished what purported to be such a report. Such document stated only that the magistrate had found the defendant wholly responsible for the collision and that in consequence he had given judgment for the complainant in the full sum required for the repair of the complainant�s vehicle.

Such a report does not fulfil the requirements of the section. What is required in such cases is a statement indicating the main issues of fact and law that arose and the processes of reasoning by which and the principles of law upon which the magistrate resolved such issues, sufficiently comprehensive to allow the appellate court to decide whether or not the magistrate erred in the process by which he arrived at the decision he did. In such an exercise the magistrate should, of course, pay attention to the grounds of appeal stated in the notice of appeal and should as far as possible cover the issues therein raised. The purported report in this appeal quite ignored, inter alia, as it should not have done, one of the stated grounds of appeal in this case, namely:

�That the learned magistrate refused to make a finding for Masai Levi when the weight of the evidence indicated that the respondent was negligent in attempting to overtake a motor vehicle at a busy cross-roads and in failing to observe a signal to turn to the right.�

Because a magistrate should direct his attention to the grounds stated in the notice of appeal it behoves appellants, for that reason as well as others, to state those grounds with precision and particularity so that the magistrate may know exactly the issues to which he should direct his report.

As far as I know the magistrate in this case may have had a perfectly good excuse for the very late furnishing of his report. However, as failure by magistrates to comply and dilatoriness in complying, with the requirements of s. 231(2) are not uncommon, it seems appropriate to remark that an appellant, or indeed a respondent, may if the circumstances require it, apply to this Court for an order to the magistrate to carry out his statutory duty and that if, upon such an application, the magistrate is shown to have been remiss, he may be ordered to pay personally the costs of such application if the facts seem so to warrant.

In my opinion it would be a sound and desirable practice for clerks of court, when forwarding a certified copy of the court record under the provisions of s. 230 aforesaid, to include in the usual covering letter a statement that the magistrate has in compliance with the requirements of s. 231(1) been notified of the lodging of the notice of appeal.

In the result the appeal was allowed and the matter remitted to the District Court for rehearing before a different magistrate. No order as to costs.

Appeal allowed.

Solicitor for the appellant: R. Siara.

Solicitor for the respondent: M. Kapi, Public Solicitor.