N7579
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 629 of 2016

MICHAEL GOMI
Plaintiff

V
VICTOR NARERE – MATAKATO HOLDINGS LTD
First Defendant

MATAKATO HOLDINGS LTD
Second Defendant

FRED WALUKA – PRINCIPLE ADVISOR, WNB PROVINCIAL COMMERCE & INDUSTRY DEPARTMENT
Third Defendant

PROVINCIAL COMMERCE & INDUSTRY DEPARTMENT
Fourth Defendant

Kimbe: Miviri AJ
2018	: 15th November

PRACTISE AND PROCEDURE – Originating summons – judicial review – decision of defendant to evict – Notice of Motion –Application of defendant to dismiss – Order 12 Rule 40 (1) (a) (b) NCR – Frivolous vexatious – abuse of process – no utility in maintenance of proceedings –CAO fourth defendant – no merit – not judicial review Order 16 rules 3,4,5,NCR –motion granted as pleaded.

Cases Cited:

Commissioner General of Internal Revenue v Bougainville Copper Ltd [2008] PGSC 13; SC920 
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950.
Lupari v Somare [2008] PGNC 121; N3476 
Philip Takori v Simon Yagari (2008) SC905
PNG Forest Products Ltd and Inchape Berhad v The State and Jack Genia [1992] PNGLR 85
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8 

Counsel:

F. Kua, for Respondent/Applicant
No appearance for Appellant
					
RULING
 15th November, 2018

1.	MIVIRI AJ:  This is the Ruling on an application by the Third Defendant to dismiss the entire proceedings of judicial review plaintiff instituted against him and others for leave to be granted on the decision to evict him from the property Section 17 Allotment 7 by 23rd September, 2016.

2.	The Originating Summons is dated the 23rd September, 2016. It reads leave be granted to the Plaintiff to apply for judicial review of the decision of the Defendants and the Defendants herein, the Department of Commerce and Industry of West New Britain ordered the principle plaintiff of Section 17 Allotment 07 to vacate the property by the 23rd September, 2016 and subsequently for an order that the defendants their agents and servants be refrained from entering the subject property section 17, Allotment 07. An order that the Defendants their agents and servants be restrained from evicting the Plaintiff until this matter is resolved amicably.

3.	The drafting of the Originating Summons in the way set out above demarcates between a traditional judicial review proceedings that arise in a master servant situation as in Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008); Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005)  because here the pleading is in respect of property section 17 allotment 07 and plea for the defendants to be restrained from entering that property until the matter is amicably solved. It is more to do with commercial or property law than to do with judicial review. The pleadings will govern the mode of the proceedings in the present Order 16 rules 1, 2, 3, is invoked as basis raising the matter. Clearly it is not a challenge of a governmental body or public authority so that resort to Order 16 is in order Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). Judicial review is more to do with public law as opposed to private law. Against the plaintiff is also the fact that leave has not been sought since 23rd September 2016. If indeed it was a judicial review proceedings it would have been the first stop made leave to proceed. That is not the case. The continued existence of the proceedings as it is has paved no utility for the plaintiff if indeed he has been seriously impaired by the actions of the defendants. The parties are responsible for bringing their cause of action in good time so that justice is done there and then. It is not delayed so as to accrue damages and the like when an action is stagnant as is the case here. Property law is clearly distinct from judicial review and the plaintiff has not shown from the material he has filed the interrelations between the two and in what way it amounts to a cause for judicial review. Browsing the material filed by the plaintiff there is no undertaking as to damages. There is no statement in support, and leave is not pleaded generally. Order 16 rules 3, 4, 5, sets out the process not visible in the cause of the plaintiff. When the pleading do not disclose a cause of action in law it is not of the court to remedy. Effectively it means the employment and application of Order 12 Rule 40 (1) (a) (b) of the National Court Rules is in the following terms; 

“40.    Frivolity, etc. (13/5):

(1)     Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a)  no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c)  the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2)     The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

4.	Here the fourth defendant has by notice of motion supported by the affidavit of third defendant dated the 6th June 2017 shown it is more to do with property than judicial review. And the definition of what is "Frivolous" by its ordinary meaning means ‘not worth serious attention or manifestly futile’. Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense.
"Vexations" by its ordinary meaning means ‘causing vexation or harassment’. It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed,” Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8 (26 March 1998). Proceedings which disclose no reason cause of action or which are frivolous or vexatious amount to an abuse of the process of the court. Order 12 4 40(1) of the National Court Rules confess power on the court to dismiss such proceedings. There is no reasonable cause of action in the circumstances of this case and therefore the proceedings must be dismissed for being an abuse of the court process: PNG Forest Products Ltd and Inchape Berhad v The State and Jack Genia [1992] PNGLR 85 followed Pursuant to Order 12 r40 of the National Court Rules and the courts own inherent powers, the Court has a duty to protect its process by ensuring vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. If proceedings are considered an abuse of the courts process, the Court has a duty to protect its dignity and integrity, and can use its inherent powers to dismiss such frivolity, 
vexation or abuse.

Issue

5.	Having so defined and given the facts and circumstances above is there reasonable cause of action disclosed in the proceedings filed?

6.	Whether the action filed by the Plaintiffs is frivolous and vexatious and should be discharged forthwith in accordance with this rule?

7.	Whether the proceedings are an abuse of process of court?

Ruling

8.	In the light of the discussion the notice of motion of the respondent is granted that there is no reasonable cause of action disclosed by the proceedings that have been filed. 

9.	And further the proceedings are frivolous and vexatious for the reasons set out above and are an abuse of process of court. It is a balance that is drawn between denying justice and the protection of the process of the court from abuse clearly the former is not seen given the pleadings here for the plaintiff and must fail in the light of Philip Takori v Simon Yagari (2008) SC905 resealing earlier position  of the law in Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950. That being the same here given all facts and circumstances the motion of the fourth defendant is upheld and the orders sought in the notice of motion is made forthwith.

10.	In passing part of the procrastination of cases in this regard fall back on counsel involved who must know the law apply the law and seek out with delay justice due to their respect clients. To allow accruing serves no purpose upon anyone. The proceeding instituted by the Plaintiff is dismissed as disclosing no reasonable cause of action. And is an abuse of process and is frivolous and vexatious.

11.	The Plaintiff shall pay the costs of the Defendant’s incidental to the proceeding. 

Orders Accordingly,
__________________________________________________________________
Felix Kua Lawyers: Lawyer for the Respondent/Applicant		
No appearance for the Appellant