N7091
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 12 of 2018

THOMPSON MAKAVONG & ANDREW YAKARU & STEVEN WALEP & MARK KAVALAU & NICK PASPAS
V
MATUFI (PNG) LIMITED
Kimbe: Miviri AJ
2018: 26th January 

PRACTISE & PROCEEDURE - Application for Restraining Order nature of injunction-Or 12 r1 NCR-current injunctive orders District Court

Cases cited:

Tasman Building Company v Genia [2011] PGNC 174 ; N4412
Yap v Tan & ors [1987] PNGLR 227

Counsel: 

F Kua, for Plaintiff/Applicant
No appearance for the Defendant

					RULING 
 29th January, 2018 
1.	MIVIRI, AJ: This is the ruling of the court on an application by Notice of Motion filed the 17th January 2018 by the Plaintiffs pursuant to Order 4 Rule 38 seeking dispensation of the requirements for service and orders pursuant to Order 12 Rule 1 of the National Court Rules, “the rules”  and Section 155 (4) of the Constitution restraining orders in the nature of injunction from entering and or taking possession of Savalu and Wasum Amta/Urin Log Ponds by any means including delivering of their logging machinery in advance of their logging operations in advance of their logging operations in the Pulie Anu LFA project area; interfering with the Plaintiffs rights to the use of the Savalu and Wasum Amta/ Urin log ponds in any manner or form unless upon a lawful authority or agreement between the Plaintiffs and any appointed developer of their choice.

2.	Order 12 is headed Judgements and orders and rule 1 general relief is in this terms, “The Court may, at any stage of any proceedings, on application of any party, direct the entry of such judgements or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process”. 

3.	In support of its Motion the Plaintiff has filed two affidavits, firstly of Thompson Makaong and secondly of Andrew Yakaru. Both deponents refer to an order referenced as DC 288 of 2017 obtained from the Bialla District Court against Matufi (PNG) Limited. The parties subject of that order attached as annexure “A” in the affidavit of Thompson Makaong and “B” in the affidavit of Andrew Yakaru are the Plaintiffs before me and the Defendant same before me.

4.	And the order is ordered 24th November 2017 and entered same date. It dispenses with the requirements of service under Section 43 of the District Courts Act for service of the Notice of Motion. Then pursuant to Section 22 of the District Courts Act it restrains by an order in the nature of an injunction (a) any occupation and dealings with the Savalu Log Pond and Wasum Amta land area pending the determination of the substantive hearing; (b) further landing of its logging machinery at the Savalu Log pond and Wasum Amta Land area pending the determination of the substantive hearing; (c) interfering and or unnecessarily disturbing the complainants including any of their servants or agents with the intention of establishing its log ponds or storing their logging machinery during the course of the proceedings and pending the substantive hearing; the notice of motion and supporting affidavits to be served on the defendants within 14 days; the substantive matter be referred to the Kimbe District Court for interparty hearing on the 8th December, 2017.

5.	These orders were served on the defendant on the 25th November, 2017 and the service details are attached to the affidavit of both deponents. Both deponents give details of alleged breaches of those orders by the Defendant or his servants or agents. Both deponents say this is obvious sign of disrespect of the orders of the court no heed paid by the defendant to the orders of the court.

6.	Not one of the deponents or independent material has been placed before me to show the discharge of this order DC 288 of 2017 obtained from the Bialla District Court against Matufi (PNG) Limited. And from the two affidavits it is clear that the order is current and enforceable against the defendant at the discretion of the plaintiffs. Both affidavits also refer to the substantive matter which is the language of the order itself, “The substantive matter be referred to the Kimbe District Court for interparty hearing on the 8th December, 2017. There is no certification from the Kimbe District Court produced by the Plaintiff that this matter has been disposed there including that this order has been discharged and is no longer enforceable. And his seeking the jurisdiction here to see justice for the matter. Because of the continued injustice observed and endured up to the filing of this cause of action.

7.	I am not satisfied on the materials presented before me to grant the orders sought in the notice of motion. Because until such time the orders are discharged they remain valid even where a party effected by them believes the orders to be irregular or void: Yap v Tan & ors [1987] PNGLR 227. Further it is therefore incumbent upon the plaintiffs here to see the carrying out of the order or observation of the order by the defendants: Tasman Building Company v Genia [2011] PGNC 174 ; N4412

8.	The granting of the orders sought will be an abuse of process because there is a current and valid order from the District court Bialla DC 288 of 2017 obtained against Matufi (PNG) Limited which must be enforced in the normal way and duplication or multiplication of proceedings on the same matter between the same parties would amount as improper without merit and must be denied the application made. It would amount to being frivolous and vexatious in accordance with Order 12 and Rule 40 of the rules. No reasonable cause of action shown when the matter is adequately taken care of in law in the District Court by the orders already obtained and current on foot against the defendant. It only needs enforcement against the defendant at the discretion of the plaintiffs. The district Court Bialla is not without means in law to enforce that order against the defendant. No material has been filed before me to show that this is the case and therefore the action coming before me. Unless and until that action instituted in that court has come to proper closing in law will this court be invoked its jurisdiction in the matter. It would not be lawful to duplicate proceedings on the same issue and substance between the same parties between two different courts under law. “The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case".  (Per Injia J as he then was in Karl Paul & Aruai  Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority (2001) N2085 delivered on 17th April 2001 in Lae).

9.	Extended from this is the very wide discretion vested in the Court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court (O.12 R.40) or the documents filed in court is scandalous, irrelevant or otherwise oppressive (O.2 r.29) or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O.1 r.1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party."

10.	In all the circumstances before me I consider that applicable before me and I exercise that discretion against the plaintiffs to deny this application with costs following.

11.	I consider the general rule that the costs follow the event that an unsuccessful party should pay the successful party’s costs. 

12.	Accordingly the plaintiffs will bear the cost of the proceedings.

Orders Accordingly.

__________________________________________________________________
Office of the Public Solicitor 	: Lawyer for the Plaintiff/Applicant		
Justin Talopa Lawyers           	: Lawyer for the First Defendant