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Stevens v Larapa [2013] PGNC 227; N5425 (12 October 2013)

N5425

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 228 of 2001

BETWEEN:

ALAN STEVENS
First Plaintiff

AND:

PLACER (PNG) LTD
Second Plaintiff

AND:

KOPI LARAPA & OTHERS
Defendants

Mt Hagen: Poole, J.
2013: 12 October

PRACTICE – Res Judicata – Test to determine if doctrine applicable

Cases Cited:

Marginson v Blackburn Borough Council [1939] 2 KB 426

Text:

Spencer Bower & Handley "Res Judicata"

Counsel:
Mr Neilli, for Plaintiffs
Mr Gonol, for Defendants

INTERLOCUTORY RULING

12th October, 2013

1. POOLE J: The Defendants have applied to have this action dismissed under Order 12 rule 40(1) of the National Court Rules as frivolous, vexatious and an abuse of the process of the Court.

2. In support of this they argue that the Plaintiffs lack standing because the Porgera Joint Venture is no longer conducted by Placer (PNG) Limited and Alan Stevens is employed by a different company.

3. The court is satisfied, on the evidence, that changes in shareholding and corporate amalgamations account for the change of corporate name and that the First Plaintiff and Second Plaintiffs are not officious intermeddlers, but have standing to bring this action.

4. The Defendants also raise objection to this action on the grounds that it is a res judicata, on the basis that the issues were determined in OS 647 of 2000.

5. The court heard submissions and argument at some length and indicated that, as the factual context of this Application concerned different actions and required close examination of a number of facts, the ruling would be reserved for a short time and, in the meantime, in order to avoid loss of Court hearing time, which is in great demand, we would proceed to hear evidence.

6. Counsel for the Defendants protested against this decision on the basis that hearing evidence on the substantive action may influence determination of the Motion and, also, that, if the motion were to succeed and the Claim struck out, the Defendants could be prejudiced in costs.

7. As for the second point, I have stated that a costs Order could resolve any issue should the defendants Motion succeed.

8. As for the question of prejudice to the Application if the Court should hear substantive evidence, I am of the view that relevant evidence in the substantive Claim must also be relevant in the Application under Order 2 rule 40 whether the action is frivolous, vexatious and an unmeritious abuse of process. I do not accept that argument.

9. I have reviewed the material to which I have been referred on this preliminary Motion by both the defendants' and the plaintiffs' Counsel. I wish to thank Counsel for their assistance in presenting written submissions.

10. Briefly, this action concerns claims by the Hewa and Takopa tribes to entitlement to certain payments made by the Second Plaintiff for environmental compensation. The claim has been litigated and an Order was made by the National Court dismissing an Application by the Hewas to render void an agreement said to have been made on 14 August 1996. The Hewas appealed to the Supreme Court but, because the Appeal was not entered in time, it was dismissed procedurally.

11. In addition to raising res judicata the Defendants also claim that the claim is an abuse of process because it concerns an interest in customary land.

12. I have examined the Statement of Claim with care. There is no Cross-Claim or Counter-Claim to consider. What is pleaded is that the agreement the subject of the previous action (OS 36 of 2000) was a fraudulent/forgery – a fact discovered after the matter was concluded – and this action, WS 228 of 2001 was brought to negate the effect of the agreement. What is pleaded (and with particulars) is fraud. An interest in customary land is not pleaded.

13. Next, the Defendants argue that this Action is fatally flawed because of the doctrine of res judicata - in other words the issue is a thing upon which the Court has already decided.

14. Questions of res judiciata and issue estoppel and the distinction between them can give rise to interesting legal argument but we have no time to spare for these at this stage of the proceedings.

15. The claim arises because of the assertion that the issues in this matter (WS 228 of 2001) have been already determined in OS 360 of 2000.

16. The learned authors of Spencer Bower and Handley (4th Edition), Res Judicata, clearly state, "res judicata- gives effect to the policy of the law that parties to a judicial decision should not afterwards be allowed to re-litigate the same decision even though it is wrong."

17. The most notable authority on this point which comes to mind is Marginson v Blackburn Borough Council [1939] 2 KB 426, which sets out the 6 elements to consider in questions of res judicata.

These are:

1. The decision must be judicial

2. The decision must, in fact, be pronounced

3. The tribunal must have had jurisdiction over the parties and the subject matter

4. The decision was final and on its merits

5. The decision determined the same question as that raised in later litigation; and

6. The parties to the later litigation were parties to the earlier litigation.

18. Even the most cursory examination of the pleadings in OS 360 of 2000 and WS 228 of 2001 shows that at least two of the six elements required to establish res judicata are missing. The issues for determination are not the same, nor are the parties the same. In OS 360 of 2000 there is no issue of fraud raised nor are the Hewa tribe represented. The parties are different.

19. I reject the argument and decline to make the Orders sought by Motion to dismiss this Claim under Order 12 rule 40.

_____________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Gonol Lawyers: Lawyers for the Defendant