N4213

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 134 OF 2010

BETWEEN:

PNG PORTS CORPORATION LIMITED
First Plaintiff

AND:

MATHIAS GEOCTAU
Second Plaintiff

AND:

NATIONAL MARITIME SAFETY AUTHORITY
Third Plaintiff

AND:

STARSHIPS (PNG) LIMITED
Defendant

Waigani: Sawong,
2011: 11 & 15 February

RULING

PRACTICE AND PROCEDURE – application to dismiss proceedings for being frivolous and vexatious and abuse of court's process – principles of dismissal considered under Order 12 Rule 40 National Court Rules – court has discretionary powers to dismiss incompetent motions – motions must contain concise reference to courts jurisdiction to grant orders sought - motion states in general terms Court's jurisdiction to grant orders sought – motion not so incompetent – application dismissed – Order 12, Rule 40 National Court Rules, Order 8 Motions (Amendment) Rules 2005 

Cases cited

Kiee Toap v The State & Ors (2004) N2731, 
John Baulana v. Posts & Telecommunications Corporation, (1996) N1473, 
PNG Forest Products Pty Ltd & Anor v. The State & Genice [1992] PNGLR 85
Ronny Wabia v. BP Exploration Co. Ltd & Ors [1998] PNGLR 8

Books/Texts

Supreme Court Civil Procedure N.S.W, 2nd Edition

Counsel
Mr. D. Wood, for the Plaintiffs
Ms. J. Marubu, for the Defendant

15th February, 2011

1.	SAWONG, J:	By a Notice of Motion filed on 7th December 2010, the Defendant sought the following orders: -

"1.	An order that this application be dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious and for being an abuse of the court's process pursuant to Order 12 Rule 40 of the National Court Rules. 

2.	An order for Costs of the proceedings. 

3.	Any other orders this Honourable Court deems fit."

2.	In support of the application the Defendant relied on the affidavits of: -

a.	Nason Kaki sworn 30th November 2010 filed 16th December 2010.
b.	Jacqueline Marubu sworn 19th January 2011filed 20th January, 2011.
c.	Emmanuel Solwai Mambei sworn and filed 7th February, 2011.
d.	Peter Sharp sworn 4th February 2011 and filed 7th February 2011.
e.	Peter Sharp sworn 4th February 2011 and filed 7th February 2011.

3.	She also relied on her written extract of submissions. 

4.	Mr. Wood, for the Plaintiffs/Respondents relied on the affidavits of: -

a.	Mathias Geoctau sworn 18th March 2010 and filed 26th March 2010.
b.	Derek Wood sworn 25th March and filed 26th March 2010.
c.	Iamo Vere sworn 13th October and filed 15th October 2010.
d.	Joseph Aisa sworn 2nd February and filed 4th February 2011.
e.	Nigel Mathieson sworn 13th October and filed 15th October 2010.
f.	Nurur Rahman sworn 3rd February and filed 4th February 2011.

5.	Order 12 Rule 40 of the National Court Rules reads –

" (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.	Before I deal with the submission raised in the Notice of Motion, it is necessary to deal with a preliminary point raised by Mr. Wood. 

7.	Mr. Wood submitted that the Notice of Motion is incompetent and should be struck, in that the Motion does not plead or contain a concise reference to the Court's jurisdiction to grant the orders sought. As I understood his submission, the Notice of Motion was vague and so general that it offends the requirements for a Notice of Motion as required by Rule 8 of the Motions (Amendment) Rules 2005.

8.	Ms. Marubu did not make any submission on this aspect. 

9.	Rule 8 of the Motions (Amendment) Rules 2005, reads – 

"All Motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form".

10.	 In the recent past the National Court has exercised the discretionary power given by Rule 8 for instance, in John Baulana v. Posts & Telecommunications Corporation, (1996) N1473. 

11.	I dismissed a Notice of Motion, because the motion did not "contain a concise reference to the Courts jurisdiction.

12.	There is no doubt that the Court has discretionary powers to strike out or dismiss an incompetent Motion. Like all discretionary powers, that power must be exercised on a proper basis. 

13.	In the present case, I have already stated the wording of the Notice of Motion at the start of this ruling and it is not necessary to restate it here. As can be seen the motion seek to have "the application dismissed." As far as I am able to discern there is no "application" on foot. The proceeding that is on foot is an Originating Summons and not an "application." So that is first misnomer with the present motion. The motion states in general terms the Court's jurisdiction to grant the orders sought. 

14.	However, having considered the matter, I conclude that the Motion is not so incompetent that it should be summarily determined. I therefore refuse to strike it out as being incompetent. 

15.	I now deal with the substantive matter. I have considered carefully all the evidence relied on by each of the parties and the submission that have been made by each of the Counsels. 

16.	The principles relating to applications to dismiss proceeding's either for failing to disclose a reasonable cause of action, or for being frivolous, vexatious or abuse of the Court process is now settled in our jurisdiction. A proceeding maybe dismissed for failing to disclose a reasonable cause of action. Such a summary course should be confined to cases where the cause of action is obviously and almost in contestably bad. See Kiee Toap v. The State & Ors (2004) N2731, John Baulana v. Posts & Telecommunications Corporation, (1996) N1473, PNG Forest Products Pty Ltd & Anor v. The State & Genice [1992] PNGLR 85.

17.	A proceeding may also be dismissed if the proceedings are frivolous or vexatious. In Ronny Wabia v. BP Exploration Co. Ltd & Ors [1998] PNGLR 8, Sevua, J (as he then was) defined "Frivolous" and "Vexatious." He adopted and applied the definitions from the text Supreme Court Civil Procedure N.S.W, 2nd Edition. 

18.	"Frivolous" by its ordinary meaning means, "not with serious attention or manifestly futile." Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, "vexatious" means, "causing vexatious or harassment." It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham or which cannot possibly succeed. 

19.	Thus a frivolous proceeding could be characterised as one in which the Plaintiffs claim is so obviously untenable that it cannot possibly succeed or the Plaintiff would become to find if the matter went to trial. 

20.	A proceeding could be vexatious if the proceedings amounts to harassment of the Defendant or if the Defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed. 

21.	Ms. Marubu raised four grounds in support of her proposition to have the entire proceeding dismissed. She submits the reliefs sought do not disclose a reasonable cause of action, and are frivolous or vexatious and amount to an abuse of the Court's process. She submitted that the Plaintiff seeks orders for the removal, destruction, scuttle or sale and claims costs of removing the MV Kuanua. She submitted there has been change in circumstances, in that the Defendant has now transferred ownership of the vessel to another person who then sold it to another company, which company is now in the process of cutting up the vessel for scrap metal without any costs to the Plaintiff. Since there has been change of circumstances of ownership of the vessel, the Defendant should not be put in a position to defend a proceeding which the Plaintiffs have no hope of succeeding against. 

22.	A closer reading of the pleadings demonstrate in my opinion, a comprehensive statement of claim against the Defendant. In my view, the pleadings are framed and pleaded so as to demonstrate that Defendant has to answer for its actions. The reliefs that have been challenged by Ms. Marubu are not the only reliefs sought. 

23.	Furthermore, in my opinion, the pleadings do disclose a reasonable cause of action against the Defendant. It was the owner of the vessel, which ran aground. Instead of doing everything possible to have it towed away, as a responsible owner, it went about creating a sham to avoid its responsibility. Furthermore there is overwhelming evidence of the Defendants conduct that should be held accountable for its conduct. I' am firmly of the view that the cause of action against the Defendant is not frivolous nor vexatious, nor are an abuse of the Court's process.

24.	Mr. Wood submitted that the proceedings are not frivolous or vexatious. He further submitted that pleadings do disclose a reasonable cause of action. He submitted that if any sham has been committed, then it is the Defendant. 

25.	In my view the mere fact that there is, what purports to be a transfer of ownership of the MV Kuanua, in circumstances which appears to be a sham, does not absolved the potential liability of the Defendant. In the circumstances, it is my opinion that the motion must be dismissed with costs. 

26.	I therefore dismiss the Motion order that the Defendant pays the Plaintiffs costs to be taxed, if not agreed.

___________________________________________________

Blake Dawson Lawyers: Lawyer for the Plaintiffs 
Starships (PNG) Limited: Lawyer for the Defendant