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Kais v Tagau [2012] PGNC 105; N4810 (5 October 2012)

N4810

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 301 OF 2010

VITUS KAIS & 13 OTHERS
First Plaintiffs

MASUBA LAND GROUP INCORPORATED
Second Plaintiff

V

SALI TAGAU
First Defendant

SELON LIMITED
Second Defendant

TROPIC TIMBERS LIMITED
Third Defendant

PEPI KIMAS, SECRETARY FOR LANDS AND PHYSICAL PLANNING
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND

TROPIC TIMBERS LIMITED
First Cross-claimant

JOHN DAVIDSON
Second Cross-claimant

V

VITUS KAIS & 13 OTHERS
First Cross-defendants

MASUBA LAND GROUP INCORPORATED
Second Cross-defendant

SALI TAGAU
Third Cross-defendant

SELON LIMITED
Fourth Cross-defendant

Madang: Cannings J
2012: 11 September, 5 October

PRACTICE AND PROCEDURE – motion for summary judgment – National Court Rules, Order 12, Rule 38 – whether summary judgment can be entered before the time for filing a defence to a claim has expired

PRACTICE AND PROCEDURE – whether orders in the nature of substantive relief can be sought by notice of motion – Motions Rules, Rule 9

The cross-claimants in proceedings concerning State land applied by notice of motion, before the time for filing defences to the cross-claim expired, for: summary judgment against the cross-defendants, orders restraining the cross-defendants and others from interfering with the cross-claimants' enjoyment of land, orders requiring other parties to produce original title documents, an order reinstating previously cancelled mortgages over the contentious land (or in the alternative an order that new mortgages be registered) and an order closing a market that was permitted to be conducted by a previous order of the National Court.

Held:

(1) The application for summary judgment was refused as it is not proper to enter summary judgment before the time for filing a defence has expired; or at any time before a defence is filed.

(2) The applications to restrain the cross-defendants and others from interfering with the cross-claimants' enjoyment of the land and to reinstate cancelled mortgages were refused as these were substantive orders that were sought in the cross-claim and it is not proper to grant substantive relief via a notice of motion.

(3) The application to require other parties to produce original title documents was refused as such documents should be sought by the process of discovery under Division 9.1 of the National Court Rules.

(4) The application to set aside a previous interim order was refused as it failed to assert the jurisdictional basis for the order sought.

Cases cited

The following cases are cited in the judgment:

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Emmanuel Mai v Southern Highlands Provincial Government (2004) N2558
John Momis v Attorney-General [2000] PNGLR 109
NCDC v Yama Security Services (2003) SC707
Telikom PNG Ltd v Thomas Tulin (2004) SC748)
Yer v Yama (2009) SC996

NOTICE OF MOTION

This was a motion for summary judgment and other orders.

Counsel

L Kari, for the cross-claimants (and third defendant)
K Maino, for the first and second cross-defendants (and first and second plaintiffs)
B Meten, for the third and fourth cross-defendants (and first and second defendants)

5 October, 2012

1. CANNINGS J: This is a ruling on a motion by the cross-claimants in proceedings concerning State land comprising six portions of land in the vicinity of Madang town known collectively known as Mililat Plantation. The cross-claimants are Tropic Timbers Ltd and that company's managing director, John Davidson. They are applying by notice of motion filed on 3 September 2012 for five types of orders:

1. summary judgment against the cross-defendants (paragraph 2 of the notice of motion);
   
2. orders restraining the cross-defendants and others from interfering with the cross-claimants' enjoyment of one of the six portions of land, Portion 1060 (paras 3 and 4);
   
3. orders requiring other parties to produce original title documents to portion 1060 and the other five portions comprising the Mililat Plantation land (paras 5 and 6);
   
4. an order reinstating previously cancelled mortgages over the six portions of land or in the alternative an order that new mortgages be registered (paras 7 and 8);
   
5. an order closing a market that was permitted to be conducted by a previous order of the National Court (para 9).
   

FIRST TYPE OF ORDER SOUGHT: SUMMARY JUDGMENT

2. By the cross-claim filed on 20 August 2012 the cross-claimants are seeking amongst other things judgment for a liquidated sum of K5,873,929.91 (claimed to be the outstanding balance of monies incurred on behalf of the third and fourth cross-defendants under a facility agreement), general damages of K2.4 million, orders nullifying transactions concerning Portion 1060 and orders restraining the cross-defendants and "illegal settlers and occupiers" from interfering with the cross-claimants' enjoyment of the land. The date on which the cross-claim was served on the cross-defendants is not clear. What is clear, however, is that the date for filing a defence to the cross-claim has not yet expired (this motion was heard on 11 September 2012). Thus the cross-claimants are seeking summary judgment under Order 12, Rule 38 of the National Court Rules before the time for filing a defence has expired. Is this permissible? In my view the answer is no.

3. It is well recognised (Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, Curtain Bros (Qld) Pty Ltd & Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285) that there are at least two essential prerequisites to entry of summary judgment. The person seeking summary judgment must provide evidence:

• of the facts proving the essential elements of the claim; and
• that the person seeking summary judgment or some responsible person believes on reasonable grounds that there is no proper defence to the claim.
  

4. However, for the court to consider entering summary judgment there must be a defence the merits of which can be assessed. A summary judgment is only appropriate where a defence is filed but it is not a good defence (Telikom PNG Ltd v Thomas Tulin (2004) SC748). That was also the view expressed by Davani J in Emmanuel Mai v Southern Highlands Provincial Government (2004) N2558, when setting aside as irregular a summary judgment that had been entered before the defendant had filed a defence. I adopt her Honour's reasoning. For that reason alone the application for summary judgment must be refused.

SECOND TYPE OF ORDER SOUGHT: RESTRAINING CROSS-DEFENDANTS AND OTHERS FROM INTERFERING WITH CROSS-CLAIMANTS' ENJOYMENT OF LAND

5. These orders are also sought in the cross-claim. They are substantive orders. That the notice of motion procedure should not be used as a vehicle to obtain substantive relief is a basic rule of practice and procedure which has been well entrenched since the decision of Kapi DCJ in John Momis v Attorney-General [2000] PNGLR 109. It has been endorsed by the Supreme Court in cases such as NCDC v Yama Security Services (2003) SC707 and Yer v Yama (2009) SC996. The rule is now expressly stated in Rule 9 of the Motions Rules (the National Court Rules, Order 4, Rule 49(9)) which states that except as otherwise expressly provided by the Rules:

motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.

The application for these orders is refused.

THIRD TYPE OF ORDER SOUGHT: PRODUCTION OF DOCUMENTS

6. The application for the production of 'original titles' to the six portions of land is made under Order 8, Rule 41 and Order 12, Rule 1 of the National Court Rules, neither of which have anything to do with orders for production of documents. Such an application should be pursued by the process of discovery under Division 9.1 of the National Court Rules. The application for these orders is refused.

FOURTH TYPE OF ORDER SOUGHT: REINSTATEMENT OR REGISTRATION OF MORTGAGES

7. These are very substantial orders that the cross-claimants are seeking. The application fails for the same reason given in relation to the second type of orders sought.

FIFTH TYPE OF ORDER SOUGHT: CLOSURE OF MARKET

8. The application is to set aside a previous interim order of this court. It is refused as the motion fails to assert the jurisdictional basis for the order sought, contrary to Rule 8 of the Motions Rules, which states:

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.

The motion must state the following;

"...move the Court for Order pursuant to (eg section 5 of the Claims By and Against the State Act...) ...".

CONCLUSION

9. All relief sought in the notice of motion is refused. Costs will follow the event.

ORDER

10. For the reasons set out above the court makes the following order:

(1) All relief sought in the cross-claimants' notice of motion filed on 3 September 2012 is refused.

(2) The cross-claimants shall pay the costs of the motion to the cross-defendants on a party-party basis, which shall if not agreed be taxed.

(3) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.
___________________________

PNG Legal Services Lawyers: Lawyers for the cross-claimants (and third defendant)
Kunai & Co Lawyers: Lawyers for the first and second cross-defendants (and first and second plaintiffs)
Meten Lawyers: Lawyers for the third and fourth cross-defendants (and first and second defendants)