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Maip v Pesul [2022] PGDC 73; DC8076 (10 May 2022)

DC8076

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]
FC No. 44 of 2021


BETWEEN


EVELYN MAIP
Complainant


AND


JAMES PESUL
Defendant


Port Moresby: Magistrate Seth Tanei


2022: 10th of May


FAMILY – Application to stay and transfer proceedings – section 24 (1) – District Courts Act


FAMILY – Abuse of the Process – Matter pending ruling on quantum –Application refused.


Cases Cited


Electoral Commission of Papua New Guinea v Kaku [2020] PGSC 37; SC1950
Fowke v Highlands Coffee Export Ltd [2003] PGDC 40; DC375


References


Legislation


District Courts Act


Counsel

Mangi, R Ms. – For the Complainant

Siune, J Mr. (Appearing with Leave of Court) – For the Defendant

RULING

10th May 2022


S Tanei: The Defendant filed an Application through a Notice of Motion dated 24th February 2022.


  1. The Notice of Motion seeks the following Orders pursuant to Section 24 (1) of the District Courts Act;
    1. The proceeding styled as FC No. 44 of 2021 be stayed.
    2. The matter be transferred to the other District Courts for further hearing and determination.
    1. Parties bear their own costs.
  2. This is my ruling on the application.

FACTS:


  1. The substantive matter is a claim for child maintenance filed on 17th March 2021.
  2. The substantive matter was presided over by Her Worship Ms. Rosie Johnson.
  3. Before the matter was heard, the Complainant filed an Application seeking to dismiss the proceeding on 9th April 2021. The Court heard the application on 20th May 2021 and dismissed it on 28th May 2021 after finding that the application has no merits.
  4. The matter went for hearing proper on 21st June 2021, the Court heard submissions on liability on 8th July 2021 and the Court found that the Defendant was liable to pay maintenance to the Complainant and her children on 29th September 2021.
  5. The Court then adjourned for submissions on quantum or the amount to be paid as maintenance.
  6. Submissions on quantum were made on 22nd November 2021 after a number of adjournments.
  7. The matter is now pending a ruling on quantum by Her Worship Ms. Rosie Johnson.
  8. On 8th December 2021, the Court sat but parties did not turn up to receive the Decision.
  9. Pending the Decision, the Defendant filed this application to stay the proceedings and transfer it to another Magistrate or District Court.

ISSUES:


  1. The Court is faced with the issue of Whether this proceeding should be stayed and transferred to another Magistrate.

THE LAW


  1. The Defendant invoked Section 24 of the District Courts Act in his application filed on 24th January 2022.
  2. Section 24 of the District Courts Act provides that;

24. TRANSFER OF PROCEEDINGS.


(1) Where proceedings have been commenced in a Court, the Court may, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court.


(2) The National Court may at any time before verdict or judgement, with or without an application from an interested person in that behalf, make an order staying proceedings before a District Court and ordering that the proceedings be taken before the National Court, if the proceedings are such that they could have been instituted before the National Court in the first instance.


EVIDENCE

  1. The Defendant relied on his Affidavit in Support of the Notice of Motion filed on 24th January 2022.
  2. In that Affidavit, the Defendant says that the Court in this case deprived him of the opportunity to be heard in two respects. First, he says his submissions were not taken into account by the Court and second, the Complainant had no witness to support her claim and it is his view that the Court did not act fairly when it heard the matter.
  3. He also submitted that the Court failed to take into account a Village Court Matter that involved the Defendant which in his view would have made to the Court rule that he did not constructively desert the Complainant and her children.
  4. He therefore asked the Court to stay this proceeding and transfer it to another Magistrate or District Court.

SUBMISSIONS


  1. During submissions, Mr. Siune, the Defendant’s appointed representative submitted that the Defendant filed this application because he thought he was not given an opportunity to be heard in open Court.
  2. In response Ms. Mangi of Counsel for the Complainant submitted that the application by the Defendant is an abuse of the process as the matter is pending a ruling on quantum of maintenance and interim custody.
  3. She further submitted that the Defendant has not submitted any good ground or reason in support of his application.

DISCUSSION OF ISSUES

  1. Whether this proceeding should be stayed and transferred to another Magistrate?
  1. Section 24 (1) of the District Courts Act allows for the stay and transfer of proceedings on two reasons;
    1. If the proceeding is one that should have been commenced at the National Court at the first instance; or
    2. If there are good reasons given by the applicant or if the Court finds good reasons to do so.

24. The Application of section 24 (1) of the District Courts Act is found in the case of Fowke v Highlands Coffee Export Ltd [2003] PGDC 40; DC375 where His Worship Mr. Martin Ipang (as he then was) rejected an application to transfer a proceeding and held that the proceeding was not one that should have been filed at the National Court at the first instance.


  1. In this case, the Defendant’s reason is that he was not given the opportunity to be heard by the Magistrate that heard the application for custody.
  2. I am of the view that the main objective of this application is to disqualify the Magistrate that presided over this case.
  3. However, I am of the view that the Defendant did not advance any proper and convincing reason as to why the proceeding should be transferred.
  4. It is my view that a case should be transferred to another Magistrate only if there is an element of bias against that Magistrate.
  5. The law on applications for disqualification of a judge or magistrate is applied and stated in the case of Electoral Commission of Papua New Guinea v Kaku [2020]PGSC 37; SC1950 as well as other cases. In that case, His Honour Kandakasi, DCJ held that

“Applying to disqualify a judge http://www.paclii.org/cgi-bin/sinodisp/pg/cases/PGSC/2020/37.html?stem=&synonyms=&query=disqualify a judge - disp3 from presiding in a case is a serious matter and as such it must be made seriously on substantial grounds failing which the application could amount to a scandalising the court and could amount to contempt of court.”


  1. His Honour also held that;

“A judge having made observations and or a decision in an earlier interlocutory application in the same matter does not of itself give rise to prejudice and hence a basis to disqualify the judge from further dealing with the matter unless, a case of real likelihood of prejudice against the applicant is made out and not a mere speculation.”


  1. In this case, the Defendant has not established any element of bias against Her Worship Ms. Johnson so as to cause her to disqualify herself in this case.
  2. In addition, such an application must be made before the Magistrate or Judge that presided over the matter and not before another Magistrate.
  3. I hold the view that this application filed by the Defendant is an abuse of the process of the Court.
  4. Firstly, it has not met the requirements under section 24 (1) of the District Courts Act as he not given any reason why the proceeding should be transferred to another Magistrate.
  5. Second, the reason advanced by the Defendant could be better dealt with in an appeal to the National Court if the Defendant wants to exercise his right to appeal the decision of the District Court that found him liable to pay maintenance to the Complainant and her children.
  6. At this stage, the Defendant has not made it clear as to which decision he was not given the right to be heard.
  7. If it was the Decision on liability, then it is my view that the only option left to the Defendant is to challenge that decision is through an appeal to the National Court because the submissions on liability were heard inter partes and evidence was received inter partes and a ruling was made thereafter.
  8. If the Defendant’s application is based on the hearing and submissions on quantum, then the application is misconceived as the proceeding is pending a ruling on quantum and it would be an abuse of the process to pre-empt a decision of the Court.
  9. I therefore find that the application filed by the Defendant seeking to stay and dismiss the proceeding is misconceived.

CONCLUSION


  1. It is my finding that the Notice of Motion filed by the Defendant on 24th January 2021 is misconceived.
  2. The Proceeding should not be stayed and transferred to another Magistrate.

COURT ORDERS


  1. The following are the formal orders of the Court;
    1. All Orders sought by the Defendant in his Notice of Motion dated 24th January 2022 are refused and the application is dismissed.
    2. This proceeding shall proceed to a Decision on Quantum by Her Worship Ms. Rosie Johnson on a date to be fixed by Her Worship.
    3. Parties shall meet their own costs.

Lawyer for the Complainant: Public Solicitors

Lawyer for the Defendant: NIL

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