N7575
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO. 37 OF 2017

BETWEEN
DANIEL BALI TULAPI
Plaintiff

AND

PATILIAS GAMATO
as Electoral Commissioner of Papua New Guinea
First Defendant

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Defendant

Waigani: Makail, J
2018: 15th & 19th November

PRACTICE & PROCEDURE – Discontinuance of proceedings – Effect of – Proceedings terminated and at an end – Cause of action survives unless a term of discontinuance – Motion for contempt based on orders granted in discontinued proceedings – Abuse of process and dismissed – National Court Rules – Order 8, rule 66
Cases cited:
Urumpa Kemesi v. Sedion Walambo & Ors (2006) N3069
Counsel:
Plaintiff in person
Ms. Alice Kimbu,  in person
Mr. L. Okil, for Mr. Patilias Gamato & Mr. Alfred Kimbu
Mr. L. Tangua, for Mr. William Powi

RULING ON COMPETENCY OF MOTION FOR CONTEMPT 
19th November, 2018
1.	MAKAIL J: Mr. Tulapi commenced these proceedings to challenge the legality of the decision and/or actions of the defendants to count votes well past the time fixed for the return of writ for 2017 General election for the Southern Highlands Provincial electorate.  On the date of trial he discontinued the proceedings on the ground that Mr. William Powi was returned as elected by the Electoral Commissioner under special circumstances pursuant to Section 175 of the Organic Law on National and Local-level Government Elections (“Organic Law”) and formed a reasonable belief that, there was no utility to pursue them.
Withdrawal of Notice of Discontinuance
2.	Later, he changed his mind and filed a notice of continuation of proceedings and withdrawal of notice of discontinuance purportedly to have the proceedings reinstated and following that, filed a motion to have the Electoral Commissioner Mr. Gamato, lawyers Mr. Alfred Kimbu and Ms. Alice Kimbu and Governor-elect Mr. Powi punished for contempt for not complying with the orders of the Court of 4th September (Mr. Tulapi says, 6th September 2017) and 28th September 2017.  It is noted that these orders and in particular, the latter are in the form of directions to Mr. Tulapi and the defendants to prepare their respective evidence and submissions for trial.
Motion based on discontinued proceedings
3.	There is no direct challenge to the competency of the motion for contempt although the defence asserts that first, Ms. Kimbu, Mr. Kimbu and Mr. Powi could not be guilty of contempt because they were not parties to these proceedings and second, these proceedings and the orders will serve no purpose because events have overtaken them when Mr. Powi was returned as elected prior to the trial of these proceedings.  But the challenge to competency is in relation to these proceedings upon which the motion for contempt is being carried, that they have been discontinued on the date of trial and needs resolving.  
Order 8, rule 66 of National Court Rules
4.	It is then a case of survival of these proceedings being dependent on how a discontinuance of proceedings in Order 8, rule 66 of the National Court Rules is construed.
5.	Order 8, rule 66 states:
“A discontinuance under this Division as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to proceedings for the same, or substantially the same, cause of action.”

Arguments for dismissal
6.	The proponents of the dismissal of the motion for contempt, Mr. Gamato, Mr. Kimbu, Ms. Kimbu and Mr. Powi contend that according to Rule 66, where proceedings are discontinued, they are terminated and at an end but the cause of action survives and can only be pursued in fresh proceedings.   For this reason they say that, it is an abuse of process to have a motion for contempt filed in proceedings which are discontinued and non-existent and that the said motion should be dismissed as being an abuse of process. 
Arguments against dismissal
7.	Mr. Tulapi holds a contrary view to his opponents and says that he is at liberty to revive the discontinued proceedings by simply filing a notice of continuation of proceedings and withdrawal of notice of discontinuance and that, he has done, and following that, at liberty to further file and prosecute the motion for contempt against them.  He contends that the course he has taken is not expressly prohibited by Rule 66 and that he could not withdraw the proceedings because there is no expressed provision for withdrawal of proceedings in the Court Rules for him to comply.  He makes a passionate plea that the course he has taken is important to revive the cause of action which is of public importance and to bring the dispute in relation to the legality of counting of votes beyond the date fixed for return of writ for the electorate concerned, to finality.  
8.	Even if the motion for contempt is based on defective proceedings or want of procedure, he invites the Court to use its remedial powers under Order 1, rules 7, 8, 9, 10, 11 and 12 of the National Court Rules to correct the defect or deficiency and allow the proceedings to continue for public interest sake and in particular, the people of Southern Highlands Province.  
Effect of Discontinuance 
9.	Two things are apparent from Rule 66 and these are: First, it does not expressly prohibit a plaintiff from reinstating discontinued proceedings.  Second, it does not expressly prohibit a plaintiff from filing fresh proceedings after they have been discontinued.
10.	Both sides assume and invite the Court to infer one or the other as the collateral effect of the discontinuance of proceedings.  It is arguable either way.  But the primary issue is the effect of discontinuance; does it terminate the proceedings?  What Rule 66 seeks to do is that, discontinuance terminates the proceedings but does not terminate the cause of action: Urumpa Kemesi v. Sedion Walambo & Ors (2006) N3069.  As the defence puts it, the cause of action survives.  However, the discontinuance may be a defence to proceedings for the same, or substantially the same, cause of action if it is a term of the discontinuance.
Cause of Action and Mode of Proceedings
11.	For a cause of action forms the basis of a claim for relief that an aggrieved party is allowed by law to bring against the offending party while proceedings are the means by which the cause of action is brought to Court.  There are many forms or modes of proceedings, two of the common ones used in this jurisdiction and many other common law jurisdictions are, writ of summons and originating summons: see Order 4, rules 1, 2 & 3 of the National Court Rules.
Termination of Proceedings
12.	It is this Court’s finding that on discontinuance, proceedings are terminated and at an end.  In this case, these proceedings were terminated as at date of discontinuance. The collateral effect is that, the term “proceedings” referred to in Rule 66 does not refer to the discontinued proceedings but further proceedings.  Thus, these proceedings cannot be reinstated in the manner proposed by Mr. Tulapi.  If parties agreed that discontinuance shall not bar the plaintiff from bringing a claim based on the same, or substantially the same, cause of action, then the plaintiff is at liberty to commence further proceedings on the same, or substantially the same, cause of action and the discontinued proceedings is no defence to the further proceedings.
Defence to further proceedings
13.	The proponents of the dismissal application did not prove by evidence that it is a condition or term of the discontinuance that Mr. Tulapi shall not institute further proceedings or that the issue of legality of counting of votes beyond the date fixed for the return of writ has been settled by agreement of parties, and a term of the discontinuance and that no further proceedings be instituted to determine the issue.  Indeed, they accept that Mr. Tulapi unconditionally discontinued these proceedings.  He then would be at liberty to institute further proceedings to raise the same issue if it is of public importance and necessary for judicial consideration.  As to the motion for contempt, it too can be a subject of separate proceedings based on the orders of 4th and 28th September 2017 and by utilising the procedure for contempt proceedings under Order 14, rule 42 of the National Court Rules.
Legality of counting of votes
14.	Mr. Tulapi’s passionate plea and desire to test the legality of counting of votes beyond the date fixed for return of writ and pursue contempt charges against the proponents of the dismissal application is not something that can be described as ambitious or lacking in substance and be trivialised by his opponents.  His cause of action is founded on a constitutional law provision of Section 97(2) of the Organic Law. This provision states that “An election shall be deemed to have failed if no candidate is nominated or returned as elected”.  Inferentially, it conferred power on the Electoral Commissioner to fail an election where no candidate is nominated or returned as elected.  In a case where no writ has been returned before the date fixed for its return, it is arguable that the Electoral Commissioner has failed in his duty under Section 97(2) to declare the election for Southern Highlands Provincial electorate as having failed. 
Contempt of Court orders
15.	In the same way and without the benefit of evidence of an order staying proceedings at the material time, a case of contempt is to be made to the Court that despite Mr. Tulapi obtaining directional orders to get parties to progress the issue to trial, his opponents, in particular, Mr. Gamato, in the exercise of a valid power under Section 175 of the Organic Law circumvented the court process by having Mr. Powi returned as elected under special circumstances before the issue was tried.
Remedies of non-compliance with Court Rules
16.	These are serious issues but for the discontinuance of the proceedings that they will not be ventilated until such a time Mr. Tulapi is able to institute further proceedings to raise them for judicial consideration.  Even Mr. Tulapi’s submission for the Court to apply remedies for non-compliance under Order 1, rules 7, 8, 9, 10, 11 and 12 of the National Court Rules to cure the defect or breach is of no assistance to him because these remedies apply to existing proceedings and not proceedings which have been discontinued.
Non-party and Utility of Proceedings
17.	Finally, the defence assertion that the individuals being cited for contempt are not parties to these proceedings must fail. The same result applies to the assertion that no purpose will be served by these proceedings and motion for contempt because events have overtaken them.  This is because they are issues for determination at the hearing of the motion for contempt.  They are fairly substantive issues and not issues of competency.  They can be raised by way of a defence to the motion for contempt.  
Conclusion
18.	What is of immediate priority is whether these proceedings are still alive and having been discontinued, the motion for contempt is unable to be sustained and carried forward.  It will be found to be an abuse of process and incompetent.  It will be dismissed and Mr. Gamato, Mr. Kimbu, Ms. Kimbu and Mr. Powi will be discharged forthwith.  Each party will bear its own costs of the motion because the issues raised by Mr. Tulapi are not trivial or vexatious.  They could have been tried but for the incorrect procedure adopted by him.
Ruling and orders accordingly.
________________________________________________________________
Kimbu & Associates: Lawyers for Mr. Patilias Gamato & Mr. Alfred Kimbu
Baniyamai Lawyers:  Lawyers for Mr. William Powi