N7274

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 128 OF 2018

BETWEEN
MARGARETH TINI PARUA
Plaintiff/Applicant

AND
PATILIAS GAMATO, Electoral Commissioner
of Papua New Guinea
Defendant/Contemnor

Waigani:  Dingake J
2018:   18th May

PRACTICE AND PROCEDURE – Order 12 Rule 40 – whether case made that proceedings are frivolous vexatious and an abuse of Court process – application granted.

Cases cited:

Sealark Shipping v the Secretary for Treasury [1998] PNGLR 333
Gabriel Yer, Secretary of Department of Finance v The State (2008) N3326;
PNG Ports Corporation Ltd v Starships (PNG) Ltd (2011) N4213; 
Ronny Wabia v BP Exploration Operating Co Ltd & the State 1998 (PNGLR 8);
Ross Bishop & Others v Bishop Brothers Engineering Pty Ltd & Others 1988 – 89 PNGLR 533; 
Vali v Damaru 2016 PGSC 73 SC 1557;

Counsel:

Ms. Mischelle Pint, for Plaintiff
Mr. W. Kaum, for Defendants

18th May, 2018 

1.	DINGAKE J:	 This is an application brought by the Defendant, seeking, inter alia, orders to dismiss the plaintiff’s notice of motion filed on the 7th of March, 2018, and the entire proceedings for being frivolous, vexatious and an abuse of Court process.

2.	The application is brought in terms of Order 12 Rule 40 of the National Court Rules.

3.	In order to appreciate the issues in contention in this application it is important to state the brief facts crisply.

4.	The plaintiff, in its notice of motion (that the Defendant seeks to dismiss on the basis that it is frivolous vexatious and abuse of court process) seeks, inter-alia, orders for the defendant to be charged with contempt of Court, for failing to comply with the Orders of the National Court on the 6th of February, 2017, and entered the following day on the 7th of February, 2017.

5.	The aforesaid Court Order bears reproducing in full:

“The Court Orders that:
1.	Judgment is ordered for the plaintiff against the defendants’ in the sum of K7,324,420.83 together with interest at the rate of 2% per annum from 3rd March, 2016 on that amount, or on any amount remaining until payment of that amount and interest in full;
2.	The defendants’ shall pay the plaintiff’s costs of and incidental to this proceeding on a party-party basis, to be taxed if not agreed.
3.	The time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.”

6.	After the granting of the Order and following various efforts to get the defendant to pay, and after court intervention was procured by the plaintiff, the defendant eventually made the first instalment payment in August, 2017.

7.	To date the defendant has made payments to the plaintiff in the amount of K7,143,079.91.

8.	With respect to costs, the defendant avers that the order of the 6th of February, 2017, is clear that same is subject to being taxed, if not agreed. He avers that he is not aware of the parties settling the issue of costs or such costs being subjected to taxation.

9.	The issue that falls for determination is fairly straight forward and simple. It is whether the applicant has made out a case for the dismissal of the plaintiff’s notice of motion filed on the 7th of March, 2018, as frivolous, vexatious and an abuse of Court process.

10.	The core of the defendant submission is that it has substantially complied with the Court Order of the 7th February, 2017.

11.	The crux of the plaintiff’s submission is that the contempt proceeding is not frivolous, vexatious or an abuse of Court process because it discloses a reasonable cause of action and it is sustainable if it proceeds to trial.

12.	The plaintiff submitted, in essence, that the defendant failed to comply with the Court Order and pay within reasonable time. Learned Counsel for the plaintiff, Ms. Mischelle Pint, submitted that in terms of case authorities of the National Court, three months from the date the judgment was entered is considered to be reasonable, and that in this case the defendant took more than a year to pay.

13.	The Court was referred to the cases of Sealark Shipping v the Secretary for Treasury [1998] PNGLR 333 and Gabriel Yer, Secretary of Department of Finance v The State (2008) N3326 which dealt with the question of what is a reasonable time for the State to settle a judgment debt and the finding seemed to be that three (3) months period is a reasonable time. 

14.	It is trite learning that frivolous by its ordinary meaning means manifestly futile and proceedings are vexatious if the defendant is put into the trouble of defending proceedings which cannot possibly succeed. (PNG Ports Corporation Ltd v Starships (PNG) Ltd (2011) N4213; Ronny Wabia v BP Exploration Operating Co Ltd and the State 1998 (PNGLR 8).

15.	A party who engages in frivolous and vexatious litigation as defined above abuses the Court process.

16.	Applying the above principles it seems to me that the plaintiff’s notice of motion of the 7th of March, 2018, is manifestly futile and cannot succeed for the simple reason that the order of the National Court reproduced earlier did not give any time lines when payment should be effected. The Court order is open ended and unclear. It is manifestly ambiguous.

17.	It is the law in this jurisdiction that Contempt of Court proceedings based on unclear or ambiguous Court orders are manifestly unsustainable or futile. (Ross Bishop & Others v Bishop Brothers Engineering Pty Ltd & Others 1988 – 89 PNGLR 533; Vali v Damaru 2016 PGSC 73 SC 1557).

18.	I have considered the authorities of Sealark and Gabriel Yer, referred to earlier, on what amounts to a reasonable time within which the State must honour a judgment debt, of which I am in respectful disagreement.

19.	In my respectful view, it may be prudent to adopt the position that each case must turn on its own circumstances. In other words, the circumstances must define what is reasonable and what is not reasonable. To this extent, I consider that it may not be prudent to put a fixed time frame as to when the State must satisfy a judgment debt.

20.	In this case the defendant is the head of a statutory body whose funding is subject to the Department of Finance. It follows from this fact that it may be constrained on how fast it moves to satisfy the judgment debt.

21.	In the circumstances of this case, the Department has substantially complied with the Court Order, and given this particular circumstance, and the ambiguous nature of the Court Order, the plaintiff’s motion of the 7th of March, 2018, is plainly futile and bound to fail.

22.	I have considered the matter of costs as prayed by the defendant and I see no reason why costs should not follow the event.

23.	In the premises, it is ordered that:

(i)	The notice of motion filed on the 7th of March, 2018 is hereby dismissed for being frivolous, vexatious and an abuse Court process.
(ii)	Costs for the proceedings are awarded to the defendant.
________________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers:  Lawyers for the Plaintiffs 
Kimbu & Associates Lawyers:  Lawyers for the Defendants