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Bossum v Mala [1992] PGNC 35; N1113 (12 September 1992)

Unreported National Court Decisions

N1113

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP. 78/92
ANDREW BOSSUM
APPELLANT
V
RAPHAEL MALAI
RESPONDENT

Rabaul

Doherty J
12 September 1992

Counsel

Appellant appeared in person

Mr. for the Respondent

APPEAL

DOHERTY J: is an appeal from a decisiecision of the District Court awarding judgment on a default summons in favour of the Respondent.

Section 157 of the Districrt Act, provides on special provisions for the claimingiming of a liquidated sum. It is not clear from the summons and complaint, how the complainant (the Respondent in this Court) assessed the amount of his claim of K3680.

The main thrust of the Appeal relates to the provisions of S 158(1) of the District Court Act. Clearly the Appellant did not put in a Notice of Intention to Defend although he did appear on the return date and was given a right to appear and the matter was then set down for hearing. On the second date, he was not permitted to speak and, although from what the Respondent says, some exchange took place judgment was entered.

It would appear that the learned Magistrate presumed that the provisions of S 158(1) are mandatory but in fact the Act says that “a person shall not be allowed to make a defence except by permission of the Court” and then on terms as to costs etc. as the Court determines. A Court can give permission if the justice of the case so requires.

The Appellant says he was not given a chance to speak, the Court record confirms that he did try to speak but he was unable to raise his defence.

From what has been stated in this Court by his Counsel and the Respondent, it would appear that there was a defence on the merits. That is from both parties.

Justice is a matter that has to be done and seen to be done. We must remember that many of our litigants in the lower Courts are people who have not had the benefit of higher education, seldom had the opportunity to go to University and study for the years it takes to be a Lawyer and are not as well versed in the technicalities of the law and the Legislation as a Court would like then to be when they appear. It sometimes takes patience and time to listen and hear two unrepresented parties trying to present the facts of their problem but patience and time are essential elements of a fair hearing.

From the facts presented here there was a defence and since on the return date the Appellant was given leave to appear by the District Court it was a miscarriage of justice not to allow him to present his side of the story. The permission to appear was revoked for no apparent reason.

In any event it appears to me that this complaint should never have been filed in the first place. The complaint does not comply with the provisions of S 133(2) of the District Court Act. There are no dates, no items, no place and no prices.

The Respondent in this Court refers to an agreement in 1986 or possibly 1983. For all the learned Magistrate might have known this claim could have been statute barred. I therefore use the provisions of S 230(1)(d) of the District Court Act and I remit this matter for a full hearing before the District Court. I give the Appellant leave to enter an appearance of his Notice to Defend under S 156 of the District Court Act and I give leave to the Respondent to amend the complaint under S 133(4) of the District Court Act. The complaint is remitted for re-hearing.

Lawyer for the Appellant: Appeared in person

Lawyer for the Respondent: Public Solicitor