N4223

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO: 138 OF 2006

BETWEEN:

KULA KAIUN LIMITED
Plaintiff

AND:

THE FIELD DIRECTOR SUMMER INSTITUTE OF LINGUISTICS
Defendant

Kokopo: Sawong, J.
2010: 6 August, 22 September

PRACTICE & PROCEDURE – Application to dismiss for disclosing no reasonable cause of action as or for being frivolous – vexatious or as an abuse of the Courts process.

PRACTICE & PROCEDURE - Parties to an action – Plaintiff not owner of property.

PRACTICE & PROCEDURE – Previous Court proceedings – different Plaintiff – different defendant – proceeding over same property – Existing Court findings & Order – current proceedings, abuse of Courts process – proceedings dismissed as offering no reasonable cause and for abuse of Court process.

Cases Cited

PNG Forest Products Pty Ltd & Another –v- The Independent State of PNG & Jacob Genia [1992] PNGLR 85
Anderson Agiru –v- The Electoral Commission of PNG (2002) SC687
Philip Takori –v- Simon Yagiri (2008) SC905

Counsels

Ms. J. Marubu, for the Plaintiff
Mr. B. Sumsuma, for the Defendant

22 September, 2010

1. SAWONG, J: By a Notice of Motion, the defendant moved to have the entire proceedings dismissed for want of prosecution and for disclosing no reasonable cause of action or for being frivolous, vexatious and being an abuse of the Court process.

2. The defendant relies on the affidavits of Guguna Garo sworn 29 July 2010 and filed 2nd August 2010 and a supplementary affidavit sworn 3 August and filed 5 August, 2010.

3. The plaintiff opposes the application. No affidavit has been filed in opposition to the application.

4. The application is made pursuant to:

(1)	Order 10 Rule 5 of the National Court Rules to dismiss the proceedings for want of prosecution, and

(2)	Order 12 Rule 40(1) NCR for disclosing no reasonable cause as being frivolous or vexation or an abuse of the court process.

5. Order 12 rule 40 of the National Court Rules read:

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –

(a)	no reasonable cause of action is disclosed; or

(b)	the proceedings are frivolous or vexatious; or 

(c)	the proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2)	The Court may receive evidence on the hearing of an application for an Order under Sub-rule (1).

6. Both the National Court and the Supreme Court have said on many occasions that only in the clearest of cases will a Court summarily dismiss proceedings. A party has a right to have its case heard as guaranteed by the Constitution and the laws of the country and "those rights cannot be lightly set aside" (PNG Forest Products Pty Ltd v The State [1992] PNGLR 85, at p.87).

7. The basic principles were summarized by the Supreme Court in Anderson Agiru v Electoral Commission (2002) SC687 (Hinchliffe, Jalina & Batari JJ.) where the Court stated:

"If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is seeking for, it is appropriate to strike out pleadings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from judgment seat unless the case is unarguable. (PNG Forest Products Pty Ltd & Another v The State & Genia [1992] PNGLR 85."

8. The relevant principles in relation to Order 12 Rule 40 of the NCR are set out by the Supreme Court in Philip Takori –v- Simon Yagari (2008) SC905 at paragraphs 23-25 where it said:

"23. The starting point of course is, O 12 r 40 of the Rules as interpreted and applied by the Courts. The principles built around this provision are now well established. The National Court in Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Staff, Valentine Kambori and the Independent State of Papua New Guinea, extracted the relevant principles from a number of overseas and our own Supreme and National Court judgments (noted in the footnotes) in this way:

"1. Our judicial system should never permit a plaintiff or a defendant to be "driven" from the judgment seat" in a summary way, "without a Court having considered his right to be heard." A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

2. At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard any possible abuse of the processes of the Court.

3. The object of these rules are therefore "to stop cases which ought not t be launched – cases which are obviously frivolous or vexatious or obviously unsustainable." In other words "the object of the rule was to get rid of frivolous actions.

4. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial.

5. A claim defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or providing the claim.

6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase "cause of action". First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as, the "form of action". Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.

7. The phrase "cause of action" could thus be defined in terms of a legal right or form of action known to law with:

"every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each each fact, but every fact is necessary to be proved."

8. A statement of claim or defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts

(not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, 15 and instead leaves it to guess work, it should be struck out.

9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.

10. The discretion must be exercised sparingly and only in a case which the statement of claim or the defence (as the case might be) is "obviously and almost incontestably bad". In other words this discretion can be exercised only in cases that "are plain and obvious so that the master or Judge can say at once that the statement of claim (or defence) as it stands, is insufficient, even if proved, to entitle the plaintiff (or defendant) to what he asks for".

11. After the above summation of the relevant principles, the National Court added:

"…the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr.36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a struck compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules 18 in appropriate cases"

12. We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O 12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments. The starting point of course is, O 12 r 40 of the Rules as interpreted and applied by the Courts. The principles built around this provision are now well established. The National Court in Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Staff.

9. I would adopt and apply these principles to this case.

10. In his first affidavit, Mr. Garo, raises two matters. In the first part, (paragraphs 4 & 5) he deposes as the lawyer having carriage of the matter on behalf of the Defendant, he has considered the pleadings pleaded in the originating summons, he is of the opinion that the pleadings are ambiguous and fails to disclose 

11. Plaintiff's title and ownership of the container. He then deposes that the plaintiff in its pleadings did not disclose a cause of action against the Defendant.

12. In paragraph 6, he deposes that the originating summons is defective for want of form, as a statutory claim is attached to it.

13. In paragraph 9, he deposes that there was a previous proceeding involving a different plaintiff relating to the same container, in which the Court found and declared that the container was or is owned by Rabaul Shipping Ltd. He attaches a copy of the decision of Yagi, J. in that matter.

14. Mr. Sumsuma, submitted that, there has already been proceedings in relation to the said container involving another plaintiff, in which the Court found in favour of Rabaul Shipping Ltd as the legitimate owner of that container. That being the case, it is an abuse of the Court process, to institute the present proceedings.

15. Secondly, he submitted that the plaintiff have not taken an active steps to prosecute the proceedings, in that since 11 July 2006, when the pleadings closed, the plaintiff has not deliver a Notice to Set down for trial to the defendant.

16. For those reasons, it was submitted that the entire proceedings be dismissed.

17. Ms. Marubu, for the plaintiff, filed written submissions. I have read and considered those submissions. In her submissions, she concentrates largely on the issue of whether the proceedings should be dismissed for want of prosecution. She does not address her submission in relation to the issue of abuse of the Court process. There are no evidentiary bases for her submissions on this aspect.

18. I deal with the issue of abuse of the Court process first. The issue is whether the current proceedings between the parties are an abuse of the Court process.

19. I accept the submissions of the Defendant on this aspect. There is no dispute that there has been another proceeding between Rabaul Shipping Ltd v Peter Maiyas in proceedings WS 153 of 2008 over the same container. In that processing (WS 153 of 2008) the Court found that the said container was owned by Rabaul Shipping Ltd. The annexure to the affidavits of both Mr Garo and Ms. Marubu indicate this clearly. There is therefore in existence a valid, legitimate finding and decision of the Court, which found and declared that the said container, the subject of the current proceedings is owned by another company and namely Rabaul Shipping Ltd. 

20. Given this, it is quite clear to my mind that, the Plaintiff is not the owner of the container, the subject of the current proceedings. The actions of the Plaintiff to file this proceeding against the defendant clearly amounts to harassment by the use of Court process. The Court should not allow its process to be abused. In addition, there is really no dispute between the plaintiff and the Defendant. In other words, there is really no cause of action between the Plaintiff and the defendant.

21. In the circumstances, there is really no cause of action. Furthermore, the issuing of the current proceedings in the name of the Plaintiff is an abuse of the Court process and I would dismiss the entire proceedings on that basis alone.

22. In the circumstances, I do not consider it necessary to consider the other submissions.

23. I make the following Orders:-

1.	The entire proceedings is dismissed.
2.	The Plaintiff shall pay the Defendant's costs, to be taxed, if not agreed.

_________________________________________

Jacqueline Marubu Lawyer: Lawyer for the Plaintiff
Sumsuma Lawyers: Lawyer for the Defendant