N7086
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 429 of 2015

MARAREA LAND GROUP INCORPORATED
First Plaintiff

.
AND
LASIMA INVESTMENTS LIMITED
Second Plaintiff
V
CHARLES GEVIA, DUMU PEREMU and BEN SELE
First Defendant

AND 
NEW BRITAIN PALM OIL LIMITED
Second Defendant

Kimbe: Miviri AJ
2018: 19th January 

PRACTISE & PROCEEDURE - notice of motion-Or 8 rule 61 (2) NCR-leave to discontinue-court control proceedings-avoid abuse of proceedings-public policy finality in litigation-plaintiff granted leave to discontinue-abuse of process if review on same issue-plaintiff no delay from initial proceedings discontinued-parties each blameworthy-no evidence to sway contrary-each party to bear own costs. 

Cases cited:

Karl Paul & Aruai  Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority N2085 
Manorburn Earthmoving Limited v State (No2) [2008] PGNC 14; N3287 
Sengero v Wenge, Governor Morobe Provincial Government [2001] PGNC 63; N2152 
Papua New Guinea Coffee Industry Board v. Panga Coffee Factory Ltd [1990] PNGLR 363.

Counsel:

E Goina, for Plaintiff Applicant
J Naphal, for Respondents
					RULING 
 22nd January, 2018
 
1.	MIVIRI, AJ: This is the ruling of the Court on an application by Notice of Motion by the Plaintiff to discontinue this proceedings relying on Order 8 Rule 61 (2) of the National Court Rules (“NCR”).

2.	Order 8 rule 61 (1) paraphrased is headed discontinuance basically granting that a party bringing a matter for relief may discontinue proceedings where pleadings are not closed without leave or consent and where judgement has not been entered with the consent of all parties, and at any time with the leave of the court. And Order 8 Rule 61 (2) specifically refers to making a claim using originating summons may with leave of court discontinue the proceedings.
The distinction is for the basic reason which this court highlighted in Karl Paul & Aruai  Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority (2001) N2085 by Injia .J (as he then was) where he said;
"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."

3.	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."

4.	It is for this reason leave must be sought to discontinue the proceedings. In support the Plaintiff relies on the affidavit of Selina Thompson dated the 3rd November 2017 filed 6th November 2017 wherein she deposes that she is the chair person of the First Plaintiff and in that capacity is versed with the facts and information in the matter. That proceeding related of OS 640 of 2016 was discontinued in the Waigani National Court, 10th October 2017 before Justice Polume. And she continues, “Given the validation of the first Plaintiff’s position as the correct incorporated land group representing the customary landowners there is no purpose for pursuing this matter. The outcome of litigation in OS 640 of 2016 in the National Court at Waigani has been the definite dismissal of Mami’s claims and confirmation of Mararea’s position”.

5.	The reason for seeking leave to discontinue is because the primary issue has been settled by OS 640 of 2016 that only ILG in law recognized is Mararea and not Mami. It should also be clear that discontinuance is not conditional that it would be reignited on the same issue or related same issue. Because that would be an abuse of process of the court which this court will not allow. Public Policy requires finality in Litigation: Manorburn Earthmoving Limited v State (No2) [2008] PGNC 14; N3287.

6.	The Notice of Motion is dated the 3rd November 2017 and filed the 6th November 2017. It is immediately after 10th October, 2017. It is reasonable given the facts to accept that a proper professional assessment was made on the matter by the Plaintiff as to how best to proceed with the case. This is so given the fact that the history of the matter stems back to 7th April, 2015 and the documents on file annexed to the affidavit dated 03rd November 17 filed 6th November 17 of Selina Thompson relied on in the Notice of Motion included annexure “A” a letter under hand of the Solicitor General to Bradshaw Lawyers independently verifying the legal position after the discontinuance of OS 640 of 2016 which is copied to Simon Nutley Rio fiocco Nutley Lawyers and a number of others including the Company Secretary New Britain Palm Oil Limited. And the same is set out also by the affidavit of Max Wagi of the Department of Lands attached as annexure “B”. 

7.	These are the facts against which the respondent is contending that the Plaintiff has not being professional and diligent in the matter and therefore should be penalized with costs on lawyer-client basis or on an indemnity basis. Conversely the respondent has not placed before me material upon which he contends that the Plaintiff (1.) brought about the litigation, or (2.) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done some wrongful act in the course of the transaction of which the Plaintiff complains, Sengero v Wenge, Governor Morobe Provincial Government [2001] PGNC 63; N2152. The submission by counsel urging costs be on indemnity basis is not supported by evidence filed upon which to sway the court accordingly. 

8.	What is set out by these facts show that the plaintiff has not been negligent or has been unprofessional either by the conduct of the lawyer or the client so as to be considered improper or unreasonable such that it should be punished by costs on a lawyer-client basis or on an indemnity basis. I consider the general rule that the costs follow the event that an unsuccessful party should pay the successful party’s costs. What then is the position of a plaintiff who discontinues his action? Pursuant to Order 22 R17 (1) a Plaintiff who discontinues his action without leave of the court is an unsuccessful party and he must pay the successful defendant’s costs "unless the Court orders otherwise". It follows that an unsuccessful plaintiff who discontinues costs, "unless the Court otherwise orders". 

9.	In the present case, I find no reason to deny leave to discontinue this proceeding. I grant leave to discontinue sought by the plaintiff. I further find that he has not done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done some wrongful act in the course of the transaction of which the respondent complains with material backing.

10.	Accordingly I grant the Plaintiff leave to discontinue these proceedings unconditionally. I say unconditionally as no material has been placed before me to order otherwise.

11.	In respect of costs as there is no material to sway otherwise and so in consideration of all, I consider that this is a case in which both parties share the blame for the events which brought about these proceedings: see Papua New Guinea Coffee Industry Board v. Panga Coffee Factory Ltd [1990] PNGLR 363. Therefore, it would not be fair to order the unsuccessful plaintiff to pay the successful defendant’s costs or vice versa. Fundamentally because the defendant has not placed any material before me to sway that the fault lies squarely with the plaintiff and based on that material cost he has incurred as a result. The court will not make orders in absence of evidence which is the case here and which is primarily why I consider that each party should bear their own costs. I order that each party bear their own costs of the proceedings.

12.	  The final orders of the court are leave is granted to the Plaintiff to discontinue these proceedings unconditionally. Each party to bear their own costs.

Orders Accordingly.
__________________________________________________________________
Fiocco & Nutley Lawyers: Lawyer for the Plaintiff Applicant		
Bradshaw Lawyers: Lawyer for the Defendant