[1977] PNGLR 246

PAPUA NEW GUINEA

[national court of justice]

PAUL PUKARI; and
ORO CABLE TV

v

PETER SEETO

waigani: doherty j
6 September 1996

Practice & Procedure - Security for prior judgment and costs - Abuse of process.

Facts

The plaintiff was defendant in two previous actions by the defendant and others arising from the same or a related cause of action. Judgements were awarded against him in default of appearance, but were not met. He then takes out this action, without complying with the two previous decisions.

Held

Taking an action when judgements in the same or related actions have not been complied with amounts to an abuse of process. Stay allowed until judgements are satisfied.

Cases cited

Asher v The Secretary of State [1974] 2 WLR 466.
James McCabe v The Governor & Company of the Bank of Ireland [1889] 14 App. Cas 413.

Counsel

B Lomai & the 1st plaintiff, in person.
Mr Nii, for the defendant.

6 September 1996

Doherty J. This is an interim ruling of an application for security for costs, alternatively that the plaintiff pay into Court K11,437.13 in respect of two outstanding judgments in related proceedings in favour of the defendant plus K3,000.00 as security for costs in this proceeding and that the hearing date be vacated until the payment for security is met. I outlined my decision and undertook to publish it in full. I do so now.

To fully understand the application I think it is necessary to outline the events that led up to this case.

The plaintiff, Mr Pukari and the defendant Mr Seeto, according to plaintiff, had entered into a joint venture called Oro Cable Television to supply television in the Popondetta area, Mr Seeto supplying the dish and the plaintiffs supplying the cable and the expertise. The writ alleges Mr Seeto to have then entered into other arrangements with other persons to supply television, allegedly in competition to Oro Cable Television. The other organisation was called Community Colour TV. As a result the plaintiffs claimed damages for breach of contract generally, exemplary damages and loss amounting to over K137,000.00 against Mr Seeto.

This writ was filed on 13th December 1994. There had been earlier however proceedings between the same parties and other parties. These commenced with Mr Pukari taking an action in the District Court at Popondetta when an ex parte injunction prohibiting Mr Seeto and others in the organisation, Community Colour Television, from supplying television in the Popondetta area. As a result of that particular ex parte injunction, granted to him on the 3rd November 1993 an application seeking to set it aside was taken in the National Court in OS 199/94. That was a successful application. I understand from submissions before me (although I have no actual file) that there was no appearance by Mr Pukari or on his behalf.

On the 15th April 1994 the defendant and other persons involved in Community Colour Television took an action against Mr Pukari for the loss they incurred from his injunction prohibiting the running of their business. This was served on him on the 21st April 1994. He filed a notice of intention to defend on the 24th May. It is to be noted that he filed no counter-claim to that action or a defence. A default judgment for assessment of damages was entered on the 7th June 1994 and set down for hearing on the 5th August 1994. An assessment of damages was made on the 13th September 1994 in the sum of K8,283.23 and costs. Costs had also been awarded in the previous hearing to set aside the injunction and these were subsequently taxed in August 1994 in the sum of K2,618.50. These payments were not met. The lawyers for Mr Seeto and his related plaintiffs sought, first, a garnishee order in August 1994. This was returned with a payment of only K52.00. A writ of levy was issued on the 24th November 1994 and was not met. Mr Pukari made no appearance at any of these proceedings. There was no appearance on his behalf.

On the 13th December 1994, that is approximately three months after the date of the judgment in WS 190/94 at which Mr Pukari had not appeared, he issued the present proceedings against Mr Seeto. I do not know when the writ was served as there is no affidavit of service, but a notice of intention was filed on 23rd December 1994 and a defence in March 1995. There were several changes of lawyers. In May 1996 an application was made to strike out the defence of Mr Seeto and enter judgment for K137,660.00. That application was unsuccessful and costs were awarded against Mr Pukari. These have not been taxed but Counsel had applied for the sum of K500.00.

None of the amounts awarded by the Court now totalling K11,437.13 against Mr Pukari have been paid, despite knowing the existence of the judgments and the attempts to enforce them. He explains in person that he thought his lawyers were appearing on his behalf. He also says in explanation for non-payment that he considers the costs should be met, not just by him but also by himself and Mr Seeto (the defendant) because Oro Cable Television was a joint venture with Mr Seeto. He says he was not the one collecting the fees for Oro Cable. The original bank account is closed. This appears to be at variance with the pleadings wherein he mentions that all monies were collected and were to be deposited into the account of Oro Cable Television at the Papua New Guinea Banking Corporation. Oro Cable Television is the second plaintiff in this action and he appears to represent it.

In support of his application Mr Nii refers to O 12 R 7 which provides that a Court may stay proceedings for non payment of costs in a new action following "dismissal of earlier proceedings" that are substantially the same. He does not contend the previous actions were "dismissed", but points to the powers of the Court vested by the rules. He also refers to O 14 R 25 empowering the Court to order security for costs. He concedes that the case is not strictly within those rules in that the plaintiff is resident in Papua New Guinea, is suing beneficially. There has been no misstatement or change of address. It is arguable that the plaintiff may not be pursuing for his own benefit. That is not apparent on the pleadings.

At no time in the previous proceedings have the plaintiffs ever brought a counter-claim or appeared before the Court. They have not filed a defence, made an appearance, nor explained Mr Pukari’s non-appearance other than to say that he expected his lawyer to appear. He has not made any offers of settlement or offer of payment into Court. He has not appealed the previous decision or sought to have it set aside. I consider that the pleadings in this case are, or very close to, a counter claim against the present defendant’s action in WS 190/94. Whilst it cannot be said it is an exact counter claim all claims evolve around a dispute about who was entitled to run Cable Television in the Popondetta area. His allegation was that it was his business and that the present defendant was taking that business away from him. I consider that the actions of the plaintiff come close to an abuse of the process of the Court.

I have not been referred to any case law on the powers of the Court to stay proceedings in circumstances such as these. I cannot find any precedents in our jurisdiction.

In considering this I have looked at some of the precedents outlined at pages 142-144 in the text Odgers Principles of Pleading and Practice 21 Edition on the subject of payment of security in costs. I quote in particular from a case cited therein Asher v The Secretary of State [1974] 2 WLR 466 "Where the plaintiffs appealed against a decision of a District Auditor without challenging the validity of the decision and lost, the Court of Appeal held that it would not be allowed to raise the issue of validity in fresh proceedings involving further parties. Strictly the matter is not res judicata, but these Courts have ample power to prevent any abuse of their process. These proceedings are in my opinion an abuse. These (plaintiffs) are seeking by one shift or another to escape the consequences of their own wrongdoing."

Halsbury’s Laws of England 4th Edition Vol. 37 at Para 332 lists the following as situations where under its inherent jurisdiction, the court has the power to order the stay of proceedings or further proceedings -

(1)	where there has been an abuse of the process of the court; 

(2)	by striking out a notice of appeal where it is plainly not competent;

(3)	unless and until the plaintiff in a claim for damages for personal injuries submits himself to a medical examination of a reasonable character, which is reasonably, required;

(4)	unless and until the plaintiff gives security for costs as ordered;

(5)	where the costs of a previous action or previous proceedings have not been paid;

(6)	where the proceedings are instituted or continued without lawful authority by the plaintiff;

(7)	upon an agreement to refer the matter to a foreign court or tribunal;

(8)	where the parties have concluded an agreement for the compromise or settlement of a pending action;

(9)	where an action is begun by a minor or mental patient without a next friend;

(10)	where there are cross-actions between the same parties.

But adds "The court has an inherent jurisdiction to adjourn proceedings for a stated time, but not generally or for an unreasonably long time."

The text continues at para 443 to say -

"The most important ground on which the court exercises its inherent jurisdiction to stay proceedings is that of abuse of process. This is a power, which, it has been emphasised, ought to be exercised sparingly and only in exceptional cases. It is not confined to cases where the indorsement of the writ or the pleading is an abuse of process, but may be exercised where the abuse extends beyond the indorsement or pleading and is demonstrated by almost incontrovertible facts and circumstances proved by affidavit evidence, if necessary...

It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings."

As authority the case of James McCabe v The Governor and Company of the Bank of Ireland (1889) 14 App Cas 413 is cited. That was a decision of the House of Lords relating to the provisions of the Rules of the Court of Chancery of Ireland. I consider certain principles therein as applicable to our jurisdiction. The only question before their Lordships was whether McCabe could be allowed to proceed with an action in the Chancery Division against the respondents without having paid the taxed costs of a former action brought by him against them for the same matter in which judgement was given for the respondent bank. The appellant argued that his case was dismissed because he had commenced his action in the wrong division of the court. This was met with a motion that his new action be stayed as vexatious, frivolous and an abuse of the process or until he paid the costs of the first action.

It was held -

"The rule is established that where a plaintiff having failed in one action commences a second action for the same matter the second action must be stayed until the costs of the first action have been paid; and even though the actions were not between precisely the same parties or persons suing in the same capacity, the case was held to be within the rule in as much as the plaintiff was "suing substantially by virtue of the same alleged title." McCabes case (supra)

It was considered that the power to stay arose out of the inherent power which resides in the Court to prevent a second suit being brought upon the same cause of action until the costs incurred in the first action have been paid.

Further it was held that -

"Has been part of the inherent jurisdiction, and never doubted, of every Court (...) to stay proceedings in an action before it, where a prior action has been brought substantially asserting the same rights against the same parties in the same or another Court, until the costs of that prior action have been paid." McCabes case (supra)

I consider such principles apply to the inherent jurisdiction of this court to enable its decisions to be respected and upheld.

The plaintiff has not honoured or taken cognisance or obeyed two previous orders of this court. Instead of presenting his case at the original hearings by way of a counter claim he has now brought a further action involving the same sequence of events. I consider that he should at least show his bona fides by meeting the order of the Court before seeking to use the process of the Court spaces, a process which he ignored himself in the other court cases to take action against the same defendant.

I rule that he should pay the former judgments of the Court. Until that is done I consider the powers of the Court to stay further proceedings in O 12 R 7(2)(e) following dismissal also apply where the Court has ordered the party to pay costs. I combine that with the orders, which Mr Nii has referred to namely, O 14 R 25, vesting power to stay pending payment of the previous judgments. Both of these rules indicate the Courts inherent power to prevent abuse of its own process.

I order that the plaintiff pay into Court the amount of the previous judgments together with a sum of K300.00 in respect of costs (yet to be taxed) following the striking out of a motion in this matter and a sum of K1,800.00 in respect of costs for WS 986/94. The matter is stayed until the judgments are met.

Lawyers for the plaintiffs: B. Lomai.
Lawyers for the defendant: Nii & Mirupasi Lawyers.