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Wagun v Korry [2009] PGNC 132; N3749 (15 September 2009)

N3749

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 56 OF 2009

BETWEEN:

PAUL WAGUN
Public Curator of Papua New Guinea
Appellant

AND:

MICHAEL KORRY
First Respondent

AND:

KORRY SECURITY SERVICES
Second Respondent

Lae: Manuhu, J.
2009: 11 & 15th September

PRACTICE AND PROCEDURE – Appeals - Abuse of process – Entry of appeal filed with notice of appeal – Right to appeal – Notice of appeal and entry of appeal are two separate processes – When entry of appeal filed together with notice of appeal, the latter shall be deemed to have been filed first in time – Upon filing of entry of appeal, appellant shall take genuine steps to progress appeal.

Cases cited:

Patric Haino v Resena Sai (2006) N3063,
Samson Dacany v Noah Taia of National Fisheries Authority (2002) N2316,
Kitogara Holdings v NCDIC [1988-89] PNGLR 346.

Counsel:

J. Popuna, for the Appellant.
G. Gileng, for the Respondents.

15 September, 2009

1. MANUHU, J.: The Respondents seek by way of a notice of motion that the notice of appeal be dismissed for being an abuse of process on the basis that:

- the filing of the entry of appeal together with the notice of appeal on the same day is in breach of section 226 of the District Courts Act,

- the Appellant was not a party in the District Court.

2. The factual basis of the application is not in dispute. The entry of appeal was filed together with the notice of appeal; and, the Appellant was not a party in the District Court. The questions to be determined are legal procedural questions. They are:

- whether filing of entry of appeal with the notice of appeal breaches section 226 of the District Courts Act; and,

- whether the Appellant has the right to appeal.

3. A person aggrieved by a decision of the District Court is given 30 days to appeal and, within 40 days after the institution of an appeal, shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court. It is argued that because the appeal could not have been ready for hearing the filing of the entry of appeal together with the notice of appeal contravenes section 226, thereby, invalidating the notice of appeal.

4. With respect, I do not agree. A notice of appeal and an entry of appeal are two separate processes. One does not depend on the other. The notice of appeal initiates the appeal. The entry of appeal stays enforcement and progress the appeal. So the notice of appeal cannot be invalidated merely because the entry of appeal was filed with it.

5. In any event, the entry of appeal should be filed within 40 days after the filing of notice of appeal. The computation of 40 days commences soon after an appeal is lodged. Such was the case here. The entry of appeal, which depended on the notice of appeal, was filed immediately after the notice of appeal was filed. Filing an entry of appeal together with the notice of appeal does not, therefore, contravene section 226. And the advantage of filing the entry of appeal with the notice of appeal is that it automatically stays enforcement, thereby, saving the parties and the courts from the inconvenience of dealing with a separate stay application pending appeal.

6. However, upon filing an entry of appeal with the notice of appeal, the appellant shall take all steps necessary to compile the appeal book and to enable the Registrar to fix a date for hearing of the appeal. If he fails to take these steps, the appeal could be dismissed for want of prosecution.

7. In the case of Patric Haino v Resena Sai (2006) N3063, where both processes were filed together, Injia DCJ (as he then was), said the appeal may be dismissed only if the appellant is not genuine in the prosecution of the appeal. I entirely agree with his Honour.

8. There is nothing irregular with filing the notice of appeal and also the entry of appeal in that order on the same day. The entry of appeal acts as an automatic stay of enforcement of the decision the subject of question. Upon filing of entry of appeal in such manner, an appellant must take genuine steps to prosecute the appeal. From now on, unless it is shown that an entry of appeal was filed first in time, which is rare, if not non-existent, when the same is filed together with the notice of appeal, the latter shall be deemed to have been filed first in time. And upon filing of an entry of appeal, the appellant shall take genuine steps to have the appeal proceed to a hearing.

9. For the foregoing reasons, the argument that the filing of the entry of appeal contravenes section 226 and, thereby, invalidated the notice of appeal is without merit.

10. The second issue is whether the Appellant has the right to appeal. The party in the District Court was the Public Curator’s Office, not the Appellant.

11. The right of appeal from a decision of a District Court is conferred by section 219 of the District Courts Act. It reads:

"(1) Subject to Subsections (2) and (3), a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

(2) Except as provided in Subsection (3), Subsection (1) shall not be deemed to authorize an appeal by the State against the dismissal of an information.

(3) Where, in the opinion of the National Court, the matter is one of such public importance that leave should be granted, the Secretary for Justice may—

(a) appeal against a decision of a District Court on behalf of a party; or

(b) intervene in an appeal to the National Court.

(4) The Public Prosecutor may appeal to the National Court against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under Section 420 of the Criminal Code." (my emphasis)

12. Interestingly, even the Secretary for Justice and the Public Prosecutor could appeal notwithstanding them not being original parties. This serves as a guide in respect of the meaning to be given to the word "person" under section 219. In fact, the question has been settled.

13. In the case of Samson Dacany v Noah Taia of National Fisheries Authority (2002) N2316, Kandakasi, J. held that the right of appeal is not restricted to parties to proceedings before the District Court but to any person aggrieved by a decision of the District Court.

14. The observation by Kandakasi, J. is consistent with the Supreme Court decision in Kitogara Holdings v NCDIC [1988-89] PNGLR 346, where "person" in section 17 of the Supreme Court Act, which is a provision on right of appeal, does not mean the original parties only. Any person whose interest is affected by or who is aggrieved and who might have been joined as a party in the original proceeding has the right to appeal.

15. I have not been sufficiently persuaded to depart from the established practice and procedure. In this case, therefore, the party in the District Court was the Public Curator’s Office. By judicial notice, the Appellant is the Public Curator and head of the Public Curator’s Office. The Appellant is undoubtedly interested in this case. The matter in the District Court was inferentially initiated at his instructions and he is undoubtedly a person aggrieved by the decision he is appealing against. The Public Curator and the Public Curator’s Office are one. Any prejudice in the change of names is minimal, if not none.

16. For these reasons, the argument that it is an abuse of process for the Appellant, who was not the original party, to institute the appeal is without merit. The Appellant has the right to appeal as he has so done.

17. I find, ultimately, that the entry of appeal is not defective. The notice of appeal remains valid. I also find that the Appellant has the right to appeal against the decision of the District Court. There is no prejudice. There is no abuse of process. The notice of motion is, therefore, misconceived and is dismissed with costs which, if not agreed, shall be taxed.

___________________________________

In-House Lawyer: Lawyer for the Appellant
Posman Kua Aisi: Lawyer for the Respondents