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Tandu v Pala [2017] PGNC 380; N7094 (7 December 2017)

N7094

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 733 OF 2017

BETWEEN:
ALEX FELIX TANDU acting as next of kin on behalf of JONATHAN, CHRISTY, CHRISTAPHANEY, NELSON, FELIX JUNIOR, ANAMOI FELINAH, dependants of late FELIX YOKA TANDU
Plaintiff

AND:
MARTIN PALA, Chairman of Workers Compensation Tribunal
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Nablu, J
2017: 14 November
5, 7 December

APPEALS –WORKERS COMPENSATION TRIBUNAL– s.49 Workers Compensation Act – adoption of appeal process under the National Court Rules –Application to extend the time to appeal – dispense with the compliance of the condition precedent - s.231, District Courts Act– considerations similar to considerations for an application for extension of time to file a notice pursuant to Section 5 of the Claims by and Against the State Act.

PRACTICE AND PROCEDURE - appeals – workers compensation – application for extension of time to be made by way of ordinary originating summons – similar to an application brought pursuant to s 231 of the District Courts Act – only where there is exceptional or special circumstances – Court can exercise the discretion – abuse of process to file a application for leave for judicial review – no reasonable explanation for delay – leave refused.

Cases cited:
Avia Aihi v. The State (No.1) [1981] PNGLR 81
Koyasi Printing Ltd v. The Independent State of Papua New Guinea (2014) SC 1369
Motor Vehicle Insurance Ltd v. Gigmai (2013) N5295

Rawson Construction Limited v. Department of Works (2005) SC777

Counsel:
J. Poiya, for the Plaintiff

E. Bua, for the Defendants

RULING ON APPLICATION

7^th December, 2017

1. NABLU, J: By way of an Originating Summons filed on 20^th September 2017, the plaintiff sought the following orders;
   
   1. Leave be granted for an extension of time to appeal against the decision of the Workers Compensation Tribunal dated 1^st May 2017 wherein it dismissed the compensation claim.
   2. Leave be granted to apply for a Judicial Review decision of the Workers Compensation Tribunal dated 1^st May 2017 wherein it dismissed the compensation claim pursuant to Order 16 Rule 3(1) of the National Court Rules.
   3. The Plaintiff’s file and serve a Notice of Motion pursuant to Order 16 Rule 5 of the National Court Rules within 21 days from the date of the grant of leave for judicial review.
   4. Costs be in the cause.
   5. Any other or further orders the Court deems fit.

2. The application is supported by the Affidavit of Alex Felix Tandu which was filed on 20^thSeptember 2017.

3. The background facts of the matter are adequately provided in the applicant’s affidavit. It is not disputed that the applicant lodged an application for workers compensation on behalf of himself and his siblings following the death of their father. The applicant made a claim for workers compensation following the death of his father who was a primary school teacher at Taguru Wesleyan Primary School in Pangia District, Southern Highlands Province. It was alleged that his father was released by the Headmaster of the school to obtain quotations for new school materials in Mt Hagen on 27^th May 2015. It was further alleged that whilst he was on official duty, he joined the bank queue, and was exposed to sunlight and heat whilst waiting in the queue he collapsed and died.

4. The plaintiff then lodged a claim for compensation pursuant to the Workers Compensation Act on 31^st March 2016. Then on 1^st May 2017, the Workers Compensation Tribunal considered the claim and dismissed it on the basis that the cause of death was unknown and that the death was not occupational or work related. According to a copy of that decision, the Deputy Registrar would inform the applicant of the decision, the reasons for the decision and right to appeal to the National Court within 40 days.

5. The forty (40) days time period to appeal lapsed on 9^th June 2017. The preliminary hearing of this claim was conducted on 24^th November 2016. Where the Deputy Registrar was of the view that the death was not related to work or occupational disease. The applicant then appealed to the Tribunal, and the Tribunal made the decision subject of the proposed appeal on 1^st May 2017.

6. In the applicant’s affidavit at paragraphs 9,10 and 11, he stated that he is the only one in his family that is educated and engaged in formal employment. Whilst he was at Buyeibi Jail for alleged murder charge, his father had died and he could not pursue the claim. He also stated that his movements were restricted due to his bail conditions and therefore could not lodge his appeal within the prescribed time. He indicated that the decision of the Tribunal Chairman was served on him on 30^th May 2017.

7. The decision of the tribunal is subject to appeal to the National Court. The right to appeal is stipulated in Section 49 of the Workers Compensation Act. Section 49 states that:

49. Appeal to National Court

(1) Where in any proceedings under this Act a tribunal gives a decision or makes an order or award, either party to the proceedings may appeal from the decision, order or award on a question of law or fact, or both, to the National Court within the time and in accordance with the conditions prescribed by the Rules of Court for appeals from decision of the District Court.

(2) An appeal under Subsection (1) may be by way of rehearing.

(3) The National Court shall decide the matter of the appeal and may affirm, quash or vary the decision, order or award appealed from, or substitute or make any decision, order or award which ought to have been made in the first instance, and may make such order as to the costs of the appeal or of the proceedings before the tribunal, or both, as it thinks proper.

8. It is clear from this provision that an appellant has a month to appeal to the National Court.

9. Section 231 of the District Courts Act provides the National Court with the discretion to dispense with the compliance of a condition precedent to the right of appeal and grant an extension of time to comply.

10. Section 231 of the District Courts Act states that:

231. DISPENSING WITH CONDITIONS PRECEDENT

The National Court may –

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and
(b) on application made ex parte by the party appealing – extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

11. It is trite law that District Courts are creatures of Statute. The District Court’s jurisdiction is provided for under the District Courts Act. The right to appeal against decisions of the District Court is also codified. An aggrieved person has one month from the date the decision was pronounced to appeal to the National Court (see Section 220 of the District Courts Act).

12. In the present case, the pertinent question is whether the Worker’s Compensation Act allows for the applicant to set aside or vary the condition precedent. In my view, Section 49 is silent on this. Section 49(1) generally states that an appeal is made according to the conditions prescribed in the Rules of Court from decisions of the District Court. In my view the appropriate rules are found in Order 18 of the National Court Rules.

13. In my view, Section 49 of the Workers Compensation Act is a general provision and wide enough to adopt the appeal procedure under the District Court Act. Therefore, in the circumstances, this Court has a inherent power to do justice in the circumstances and can invoke the powers under Section 155(4) of the Constitution. (See AviaAihi v. The State [1981] PNGLR 81). In my view, the procedure to be adopted for the appeals from the Workers Compensation Tribunal is the procedure under the District Courts Act. The appeal procedure should be adopted and applied in whole, therefore, this includes the procedure to apply to set aside the conditions precedent pursuant to Section 231 of the District Court Act. There are two requirements of which the Court must be satisfied with before the condition precedent to the right of appeal is dispensed with. The Court must be satisfied that the appellant has done whatever is reasonably practicable to comply with the provisions.

14. The case of Motor Vehicles Insurance Limited v. Gigmai (2013) N5295 sets out the principle considerations that an applicant must satisfy before the Court can exercise its discretion to grant leave to dispense with the conditions precedent. The considerations are:

1. the extent of the delay;
2. whether there is a reasonable explanation for the delay;
3. whether the proposed Notice of Appeal reveals an arguable case; and
4. whether the respondent would be prejudiced if leave is granted.

15. The principles in my view are similar to those considerations the Court must take into account when considering an application for extension of time under Section 5 of the Claims By and Against the State Act. In such applications the Supreme Court held in the case of Rawson Construction Limited v. Department of Works (2005) SC777 that an applicant must show sufficient cause for meeting the requirements under the Claims by and against the State Act. The applicant demonstrates that he or she has sufficient cause if he or she is able to:

1. provide by appropriate evidence a reasonable explanation for not giving notice within the period stipulated under s.5 of the Claims by and Against the State Act and where there is a delay in applying for an extension of time provide a reasonable explanation for delay;
   
2. demonstrate a reasonable cause of action to be pursued on the merits; and
   
3. show by appropriate evidence that the delay in giving notice is not and or would not result in any prejudice to the State.

16. These principles have been reinforced in the recent case of Koyasi Printing Ltd v. Independent State of Papua New Guinea (2014) SC1369.

17. Reading of the relevant authorities, it would appear that all those principles will have to be answered in the affirmative before the Court can exercise its discretion to extend the time.

18. The plaintiff in his affidavit stated that he was served the notice on 31^st May 2017. The proceedings were then filed on 20^th September 2017. The reasons which the plaintiff gives for failing to file an appeal within the time is, that he was imprisoned atBuiyebi Correctional Institute and that his movements were restricted because of the stringent bail conditions.

19. The extent of the delay from the date the decision was made on 1^st May 2017 to the date the proceeding was filed is four (4) months and nineteen (19) days. The delay between the date of the plaintiff became aware of the decision and the date of moving this application is four (4) months and ten(10)days.

20. In the present case I find that there has been a delay. The next question to consider is whether there is sufficient or reasonable explanation for the delay.

21. In the evidence before me, I find that there is no reasonable explanation for the delay. The applicant stated that he was in jail and his movements were restricted to the Southern Highlands area. The reason why I made that finding is that he was not in jail or under strict bail conditions during 30^th May 2017. He was discharged or acquitted of the offence on 24^th May 2016, a year earlier. See Annexure N of the Affidavit of Alex Tandu (Notice of Acquittal/Discharge). Therefore, there is no reasonable explanation for the delay.

22. Now turning to the issue of whether the plaintiff has an arguable case. The plaintiff has not provided in evidence a copy of the draft Notice of Appeal which should state the grounds of appeal which the plaintiff will rely on to challenge the decision of the Tribunal if leave is granted.

23. Section 49 of the Worker’s Compensation Act is clear an appeal can only be on a question of law or fact or both. Without the benefit of a draft Appeal notice this Court cannot invoke its discretion to grant leave. A quick perusal of the evidence, before me also does not disclose an arguable case. In the absence of a draft Notice of Appeal, I am of the considered view that the plaintiff does not have an arguable case.

24. Finally, the last consideration is whether or not the defendant would be prejudiced if leave is granted to extend the time to appeal. One way to consider this question is to consider what the ramifications are if leave is not granted. In the present case, if leave is granted, I am persuaded that the defendant would be substantially prejudiced. This is a frivolous and vexatious claim. There is no evidence that the death of the claimants father was work – related or arose from occupational risk or hazard.

25. Therefore, I am not satisfied that the appellant has done whatever is reasonably practicable to comply with the provisions of the District Courts Act. For the foregoing reasons and in the exercise of my discretion, I am minded to refuse the relief sought, in paragraph one (1) of the Originating Summons.

26. In regard to costs, I will exercise my discretion to make no orders as to costs.

Court Orders

1. The plaintiff’s application is refused and is dismissed forthwith.
   
2. No order as to costs.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Poiya Lawyers: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the Defendant