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Noi v Irong Noi (No 2) [1990] PGNC 57; N926 (28 September 1990)

Unreported National Court Decisions

N926

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 20 OF 1990
BILLY TAU NOI
V
IRONG NOI (NO 2)

Lae

Doherty J
28 September 1990

Counsel

K Gamoga for the appellant.

S Lupalrea for the respondent.

DOHERTY J: The decision in the appeal in this matter was handed down on 7 September 1990 and I ordered, inter alia that the matter be remitted for rehearing on the question of income and expenses of the parties. The order to remit waditional on certain paymentyments being made by the appellant father in respect of maintenance of the children and the respondent. I deferred the matter to 25 September 1990 at which time Counsel for the respondent said no payments had been made at all in compliance with the order and Counsel for the appellant said that certain payments and expenses had been met by the appellant on behalf of the respondent and the children. I adjourned the matter for a sworn statement from the respondent as to payments in cash and kind made by the appellant.

That sworn statement has now been tabled and copies served on Counsel for the appellant. The appellant has not appeared today and his Counsel, Mr Gamoga, informs me that he has had no instructions but has endeavored to contact his client and been informed the client has left for the funeral of a relative of his present co-habitee. Mr Lupalrea has asked for an order of imprisonment of the appellant for non payment in compliance of the National Court Order and refers to a previous Order of the District Court pursuant to s 4 of the Maintenance Enforcement Act (Ch No 279) when the appellant was arrested for failure to comply with the District Court order for maintenance.

As I remarked on 25 September 1990 orders were made by the District Court in December 1989 for maintenance. Approximately two weeks after that a Notice of Appeal was lodged against certain orders and findings of fact in the District Court. That appeal was not prosecuted although the appeal was called several times and eventually the National Court set it down for hearing of its own violation. Prior to the hearing date the appellant was arrested on separate court proceedings apparently as a result of a complaint laid under s 4 of the Maintenance Orders Enforcement Act (Ch No 279).

At the hearing of the appeal Counsel for the appellant informed the Court that the imprisonment order had been set aside pending this appeal. That appears to have been done under s 100 of the Child Welfare Act. Section 100 of the Child Welfare Act is not relevant to this case as it clearly states that it applies to orders made under the Child Welfare Act only and if it was set aside on that basis then I consider it was set aside erroneously.

In any event the District Court ordered that the appellant not be imprisoned pending this appeal. The appellant did not comply with the order of the District Court made the December 1989 and did not comply with the order of this Court of 7 September 1990. He did not apply to vary the order of this Court on 7 September 1990 and he has not shown any cause why he should not conform to it. I have remarked earlier that I enquired in earlier hearings if he had paid any maintenance for his children.

I have considered, although it has not been fully argued before me, the provisions of O 14 of the National Court Rules in regard to proceedings for contempt. This is not a contempt in the face of the Court and as other legislation is available to the Court I do not consider that the provisions are of O 14 are immediately relevant and available in this situation before me.

The powers to summons and arrest a person who has disobeyed an order for maintenance under the Deserted Wives and Children Act (Ch No 277) is contained in s 8 of the Deserted Wives and Childrens Act. There is also power under s 4 of the Maintenance Orders Enforcement Act (Ch No 279) power to commit a person to prison for non compliance with a maintenance order.

Both Acts refer to “the court” and the court is defined in both Acts to mean the District Court. The powers of the National Court in an appeal against a decision under the Deserted Wives and Childrens Act are contained in s 12 of the Deserted Wives and Childrens Act (Ch No 277) and include the power to vary an order, dismiss the complaint or refuse an application.

The procedural aspects of the Deserted Wives and Childrens Act, if not clearly provided for in the Act itself, are contained in s 26 of the Act and adopt the provisions of the District Court Act. This includes s 230 of the District Court Act, which provision I used when making a conditional order for remitting this matter for hearing on 7 September 1990.

Section 230(1)(e) and (f) empower the National Court to make or exercise other powers that would be vested in the District Court s 230(1)(e) provides as follows:

Exercise a power that the Court that made the conviction, order or adjudication might have exercised.

It it arguable that this provision relates only to orders, convictions adjudications that might have been exercised in the case immediately before the District Court and the District Court could not have made an order in December 1989 ordering immediate imprisonment under s 8 of the Deserted Wives and Childrens Act. I have reservations if s 230(1)(e) District Court Act immediately applies to the provisions before me but s 230(1)(f) District Court Act contains wide powers to make other orders.

The original order for imprisonment in the District Court for set aside pending this appeal. This appeal has now been heard and I’m satisfied on the evidence before me that the appellant has not complied with the condition imposed on the hearing of that appeal. I therefore consider that it would be appropriate to remit this case for hearing of the original complaint and summons for imprisonment pursuant to s 4 of the Maintenance Orders Enforcement Act accordingly I order as follows:

1. ټ Warrant of arrest test to issue for the apprehension of Billy Tau Noi.

2. &#T60; that att m of rhe hehe hearing of a comt forcompl withrder of the District Court purt pursuanrsuant to t to s 4 os 4 of the Maintenance Orders Enforcement Act set aside pending thieal bittedhearing.

F

For clor clarifiarification of doubt I would stress that considerable time was spent in the Court emphasising the fact that this defendant should have complied with the orders or made some attempt to comply with the order and it was forcefully stated that his failure to do so could bring him to the situation he now finds himself in.

Lawyer for the appellant: Warner Shand.

Lawyer for the respondent: Simon Lupalrea & Company.