N6002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 295 OF 2014

BETWEEN

ALOIS TANGILA - ADMINISTRATOR
For and on behalf of the Estate of John Tangila, Deceased Intestate
Plaintiff

AND

KWIK MIT LIMITED
First Defendant

AND

JACOB POPUNA
Public Curator
Second Defendant

Waigani: Ipang, J
2015: 1 & 24 June

CIVIL LAW – MOTION - First Defendant seeking to dismiss proceedings for being frivolous, vexatious and for being abuse of Court process – Order 12 Rule 40, National Court Rules

Cases Cited:

PNG Forest Products v The State [1992] PNGLR 85
Eki Investment Limited v Era Dorina Ltd & Or [2006] PGNC 145; N3176 (6 December 2006)
Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 102 (30 April 2010)
Paul Wagun v Pilembo [2008] PGNC 139; N3487 (18 September 2008)

Counsel:

T. Tape, for Plaintiff
Mr E Asigau, for First Defendant 

24 June, 2015

1.	IPANG, J: By its motion dated 10th June 2014, and filed on the 12th of June 2014, the First Defendant seeks the following orders:

•	The time for filing of the First Defendant's Defence be extended to 4th June 2014 pursuant to Order 1 Rule 15 and Order 1 Rule 7 of the National Court Rules.

•	The entire proceedings be dismissed for being frivolous, vexatious and for being an abuse of court process pursuant to Order 12 Rule 40 of the National Court Rules.

•	Plaintiff to pay the First Defendant's costs on a full indemnity basis.

2.	In support of this motion, the First Defendant relies on the Affidavit of Andrew Macpherson sworn on the 24th June 2014 and filed on the 1st July 2014.

3.	The First Defendant relies on the following grounds for the dismissal of the proceedings:

(i)	Plaintiff's cause of action is time barred under the Frauds and Limitations Act 1988;

(ii)	Plaintiff seeks to set aside the judgment of the National Court in another separate proceedings and in which the Party was not a party; and

(iii)	Plaintiff by his own admissions is estopped from seeking the relief in his statement of claim.

4.	I will now address each of the grounds the First Defendant is relying upon to seek dismissal of the proceedings.

(i)	Whether Plaintiff's cause of action is time barred under the Fraud and Limitations Act, 1988.

5.	The First Defendant says the Plaintiff's cause of action is the one founded on fraud which comes under the category of a Tort. In his Statement of Claim, the Plaintiff claims that the former Public Curator, Paul Wagun fraudulently transferred joint ownership of the property Allotment 39, Section 93, Hohola, National Capital District to the First defendant through a judgment of the National Court entered on the 9th September, 2005 in OS. No. 724 of 2004.

6.	 First Defendant says these proceedings commenced by Writ of Summons on the 3rd April 2014, which is about 9 years after the Plaintiff's alleged act of fraud. First Defendant therefore says the proceedings are clearly outside the six (6) years period limited by section 16 of the Frauds and Limitations Act 1988.

7.	The section 16 (1) of the Frauds and Limitations Act 1988 states:

16. Limitation of actions in Contract, fort etc.

(i)	Subject to sections 17 and 18, an action – 

(a)	That is founded on simple contract or on fort; or

(b)	To enforce a recognizance; or

(c)	To enforce an award where submission is not by an instrument under seal; or

(d)	To recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture sum by way of penalty or forfeiture; 

Shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

8.	Mr T. Tape of counsel for the Plaintiff counter argued that the six (6) years time computation should commence exactly from the time the Plaintiff became aware of the Court Order. The judgment of the National Court in OS. No. 724 of 2004 was entered on the 09th of September 2005. However, Mr Tape did not assist the court as to when the Plaintiff became aware of the said Court Order. Secondly, Tape did not assist the court with case precedents which stated that in fraud related cases the six (6) years' time limitations period under Fraud & Limitations Act, (supra) runs from the time fraud was discovered.

9.	In the case of Oil Search Ltd v Mineral Resources Development Corporation Ltd [2010] PGSC 12; SC 102; (30 April 2010) the Supreme Court stated:

"If a claim is clearly time-barred and provided the statutory defence is pleaded in the defence, a motion for dismissal is warranted and it would be quite appropriate for the National Court to hear and determine it. Where, however, the case for dismissal is not a clear-cut, the decision – making process of first, identifying the cause of action, secondly, identifying the date on which the cause of action arose and, deciding the question of whether the cause of action is founded on a simple contract or is an action upon a speciality, can only efficaciously be carried out at a trial (Underlining mine)

SETTING ASIDE JUDGMENT

10.	 The First Defendant stated that the Plaintiff in these proceedings is seeking to set aside the judgment of the National Court in OS. No. 724 of 2004 in which the Plaintiff was not a party to the proceedings. First Defendant submitted that a Judge sitting as the National Court does not have the power or jurisdiction to review and set aside an order or judgment made by another Judge sitting as the National Court in a totally separate proceeding.

Whether the consent order of 9th September 2005 can be set aside

11.	 Plaintiff relies on the case of Coecen Ltd v National Fisheries Authority of Papua New Guinea [2002] PNGLR 6 whereby His Honour Kandakasi, J stated:

"1…..

2. this follows on from the fact that liability has already been determined and also because of the fact that consent Judgments cannot be set aside easily except on appeal or on, issue of fresh proceedings based on fraud or mistake."

12.	 Bredmeyer, J in Paul Torato & Ors v Sir Tei Abal & Ors [1987] PNGLR 403 at p.413:

"A judgment by consent can be set aside in limited circumstances. Volume 2 of the Supreme Court Practice (1979) at pars 2010, and 2010A states;

'A consent order can be set aside in an action commenced for the purpose on any ground that would invalidate an agreement… If consent has been given by a mistake, it may be withdrawn at any time before the judgement is passed and entered…. But where a final judgment has been passed and entered the Court cannot set it aside unless a fresh action is brought for that purpose although it has been entered by mistake (Ainswort v Wilding [1986] 1 Ch. 673 and wilding v Sanderson [1897] 2 Ch. 534"

13.	 Applying the above principle, Kandakasi, J in Coecon Ltd v National Fisheries Authority of Papua New Guinea [2002] PNGLR 6 held that it is a settled law that consent judgments cannot be easily set aside. Extreme care and caution must be exercised when a court is asked to set aside a consent order.

14.	 In the present case the Plaintiff claimed the consent order was fraudulently obtained with no letter of administrator in place. The title change done in 2011 was done without the Plaintiff's consent as deceased administrator. Given this circumstance, consent order can be set aside.

PLAINTIFF'S OWN ADMISSION IS ESTOPPED

15.	 Mr E. Asigau submitted that there is clear evidence that Plaintiff has admitted and agreed that the First Defendant is the joint proprietor of the property described as Allotment 39, Section 93, Hohola, "Gordons", National Capital District. The Plaintiff submitted that it was all along his intention to challenge the legality of the consent order if things did not work out. In an e-mail sent to Andrew MacPherson dated 10th September 2013, Plaintiff wrote, "should you decide otherwise the legality of as to how the consent order was issued to your firm Kwikmit PNG will be a matter for the court to decide. The Public Curator is well aware of this and is willing to testify in Court to nullify the consent order." 

16.	 Whilst trying to acknowledge the said consent order, the Plaintiff's intention to go to Court to challenge the consent order is still an option Plaintiff intends to pursue if arrangements with First Defendant fall through.

17.	 In total, I will refuse the orders sought in the First Defendant's motion.

_______________________________________________________________ 
Pacific Legal Group: Lawyer for the Applicant/First Defendant 
Kandawalyn Lawyers: Lawyer for the Respondent/Plaintiff