N7677
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 644 OF 2017

BETWEEN:
MASI FUAWE
First Plaintiff

AND
DR. SAMSON LAUP
Second Plaintiff

AND:
PROFESSOR JOHN WARREN
First Defendant

AND:
UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
Second Defendant

AND
HONOURABLE PILA NININGI in His Capacity as MINISTER FOR HIGHER EDUCATION, RESEARCH & TECHNOLOGY
Third Defendant

Kokopo: Anis J
2018: 10 December
2019: 7 February

NOTICE OF MOTION – Order 8 Rule 27 and Order 12 Rule 40(1) of the National Court Rules – grounds – frivolity, want of reasonable cause of action and abuse of court process – Claims By and Against the State Act 1996 – section 5 notice

Case cited:
Nil

Counsel:

Mr P. Yange, for the Plaintiffs
Mr D. Kamen, for the First and Second Defendants
RULING
7th February, 2019

1.	ANIS J:	On 10 December 2018, the first and second defendants (defendants) moved their notice of motion (application).  Therein, they sought to dismiss the entire proceeding based on (i), want of reasonable cause of action, (ii), frivolity, (iii), abuse of court process and (iv), failure to give notice of intention to make a claim against the State.  The application was contested.  I reserved my ruling on that day to a date to be advised.

2.	I rule on it now.

BACKGROUND

3.	The plaintiffs were employees of the second defendant.  They were both employed under written contracts.  In April and July of 2017, the second defendant terminated their employment.  The plaintiffs appealed against their terminations to the Papua New Guinea University of Natural Resources & Environment Council (PNGUNRE council).  On 31 August 2017, the PNGUNRE council upheld the plaintiffs’ appeal and directed their reinstatements.  On or about 28 September 2017, the third defendant revoked or terminated the then Chancellor Margaret L. Elias and her PNGUNRE council members.  An interim council was set up thereafter.  Then on or about 2 October 2017, the second defendant notified the plaintiffs that the former council’s decision of 31 August 2017, which had upheld their appeals and had reinstated them to their original positions, was revoked or was regarded as null and void.

4.	The plaintiffs were aggrieved with that and have filed this proceeding.  The main reason for their actions is to question the validity of the two (2) decisions of the PNGUNRE council, one made on 31 August 2017 and the latter which was presumably made on or about 28 September 2017.  At this stage, I note that there is no evidence disclosed that shows when the interim council had met and had deliberated on the matter, that is, after the first or the 68th meeting which was held on 31 August 2017.

MOTION

5	The sources relied upon in the application are Order 8 Rule 27 and Order 12 Rule 40(1) of the National Court Rules (NCR).  They read, and I quote in part:

27.  Embarrassment, etc. (15/26) (1)
Where a pleading —
(a)	discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b)	has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)	is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

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.

ISSUES

6.	The first issue is jurisdictional, that is, whether a section 5 notice under the Claims By & Against the State Act 1996 (CBASA) was required regarding the plaintiffs’ action against the third defendant, and whether the notice was given.  The main issues are, (i), whether there was no reasonable cause of action disclosed, (ii), whether the actions are frivolous and vexatious, and (iii), whether the proceeding is an abuse of the court process.

SECTION 5 NOTICE – 3rd DEFENDANT

7.	The defendants allege that the plaintiffs did not give the State the required section 5 notice under the CBASA before joining the third defendant as a party to the court proceeding.  They also claim that leave of the Court was not sought before the third defendant was named as a party to the proceeding.  The plaintiffs’ counsel did not seriously oppose these claims.  Counsel submits in reply that the plaintiffs have joined the third defendant as a nominal defendant.  Counsel also submits that in any event, the plaintiffs plan to seek leave of the Court to remove the third defendant from the proceeding.

8.	The issue, in my view, seems resolved, that is, in light of the plaintiffs’ counsel’s submission.  But even if the plaintiffs do not plan to remove the third defendant, I would find the plaintiffs’ action in purportedly joining the third defendant as contrary to law or to the requirements under the NCR.  Let me explain.  On 15 May 2018, the Court granted, amongst others, leave to the plaintiffs to file and serve their amended statement of claim.  The court file entry nor the filed court order of 18 May 2018 (i.e., document no. 28) had any provisions for the plaintiffs to join the third defendant as a party to the proceeding.  With that, I can only refer to Order 5 Rule 8(1) of the NCR.  It reads, and I quote in part:

8.	Addition of parties. (8/8)
(1)	Where a person who is not a party —
(a)	ought to have been joined as a party; or
(b)	is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

9.	As such (or which is why), I am of the view as stated above that it was abuse of the court process for the plaintiffs to purportedly join the third defendant without following due process.  So in this case, I will order the removal of the third defendant in the proceeding.  I note that I have jurisdiction in this regard and refer Order 5 Rule 9 of the NCR.  It reads, and I quote in part:

Where a party —
(a)	has been improperly or unnecessarily joined; or
(b)	has ceased to be a proper or necessary party,
the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings.
(Underlining is mine)

NO REASONABLE CAUSE OF ACTION?

10.	Now, the defendants submit that the plaintiffs do not disclose a reasonable cause of action.  They submit that the plaintiffs’ employments were governed under the employment contracts which they had signed with the second defendant.  They submit that since their terminations, the second defendant has fully paid of all the benefits that were due under their respective employment contracts.  The defendants submit that the plaintiffs have in return accepted the final payouts that were made out to them individually.  The defendants submit that there is therefore nothing outstanding or owing by the second defendant to the plaintiffs that should warrant the continuation of the proceeding.

11.	The plaintiffs in summary submit that they are seeking declaratory orders to assert their rights, that is, their rights to be re-instated back to their original positions of employment based on the decision of the PNGUNRE council that was made on 31 August 2017.  They submit that, in addition to seeking damages, they are also seeking enforcement of their various rights under section 57 the Constitution and also damages in regard to the purported breaches of their said rights.  They question the actions of the defendants and the interim PNGUNRE council, at the material time, that is, their actions to reinstate them after they have been terminated, and later to purportedly revoke their reinstatement.  In summary, they say that their claims are not restrictive to the terms of their contracts, but rather, they also involve facts that have arisen outside or after their terminations.

12.	The obvious question to ask is this, whether the plaintiffs have a reasonable cause of action under law.  All I need to be satisfied of at this stage, in my view, is to consider the legal foundation upon which the plaintiffs’ claims are based on, that is, the pleading.  When I look at it, namely, the statement of claim, I will say this.  The plaintiffs are seeking their relief in two (2) folds.  Firstly, they seek declarations to enforce their contracts based on the decision of the PNGUNRE council dated 31 August 2017 which had reinstated their employments under their respective contracts.  The second fold of their claims relates to damages which they say they have suffered, including their claim for breach of or enforcement of their constitutional rights by the alleged actions or inactions of the defendants.  I note that the defendants do not deny that the PNGUNRE council had reinstated the plaintiffs to their substantive positions on 31 August 2017.  They however claim that the council’s decision of 31 August 2017 was subsequently overturned by the interim PNGUNRE council on 11 October 2017 (refer to paragraph 8(g) of the defence).  They also argue that the replacement of the PNGUNRE council members by the third defendant in September of 2017, has consequently nullified the council’s earlier decision of 31 August 2017.

13.	I note the submissions from both counsel.  Based on them, I notice these following issues.  Whether the PNGUNRE council can over turn its earlier decision.  If not, whether it can be inferred or correct to say that because the PNGUNRE council has been replaced with new members, that its earlier decision concerning the reinstatement of the plaintiffs shall be regarded as null and void.  Counsel brought this Court’s attention to section 40 of the University of Vudal Act 1997 (UV Act).  It reads, and I quote in part:

40.	Validity of proceedings.
No Act or proceedings of any authority or committee or by any person acting as a member thereof or as an officer of the University shall be invalidated by reason of—
(a)	a defect in the appointment of such a person; or
(b)	a disqualification of such a person; or
(c)	a defect in the convening of a meeting; or
(d)	a vacancy in the number of members of an authority.

14.	The plaintiffs’ counsel submits, with reference to section 40, that it is arguable whether the interim council could over turn the decision of the first council.  The defendants’ counsel submits otherwise.  In my view, the issues, as highlighted above, are obviously valid and may require proper considerations by the Court.  And this.  In considering section 40, I also note with interest section 6(g) and (h) of the VU Act.  It reads, and I quote in part: 

The University shall have the power—
……
(g)	 to regulate and enforce discipline among the employees and students of the University by such measures as the University may determine; and
(h)	to cancel, annul or revoke any act done in the exercise of these powers;

15.	This may be viewed as another example why the Court should perhaps carefully consider the issues at a proper hearing.  Therefore, it is my view that these matters should require proper attention in terms of (i), adducing evidence of facts and, (ii), preparation of submissions of law and case law on the material issues.  This is not the correct time, in my view, to deal with them.  The matter must therefore go for a proper trial for the Court to address the issues including those that have been highlighted above herein.  For this purpose, the above examples, in my view, demonstrate that the plaintiffs’ actions herein are not unreasonable; that they show that the plaintiffs have a reasonable cause of action.

FRIVOLITY & ABUSE OF COURT PROCESS

16.	Regarding the two (2) remaining grounds, frivolity and abuse of the court process, I repeat my reasonings above herein.  With that, I must say that I do not find the plaintiffs’ actions either frivolous and vexatious.

OTHER MATTERS

17.	The defendants also argue that the second plaintiff has voluntarily resigned.  They also claim that both plaintiffs have been paid out their final entitlements.

18.	In my view, these arguments are valid but again this is not the appropriate time to raise them.  The matter, in my view, should go for a proper trial for all the reasons that I have stated above in my judgment.  Let me also say this.  The plaintiffs have also alleged enforcement of their constitutional rights and their breaches under section 57 of the Constitution.  So, let us assume that the defendants have paid out the plaintiffs everything that are owed under the two employment contracts, or that one of the plaintiffs has voluntarily resigned from his services.  Would these acts (i.e., acts of payments, acceptances or resignation) relieve defendants from any other liabilities such as allege breach of or enforcement of the plaintiffs’ constitutional rights?  Or do they prevent the plaintiffs from bringing an action under section 57 of the Constitution?  I see no evidence or agreements that are filed herein that exempts the plaintiffs from making these claims.  So, the answer would be “no, these do not necessarily prevent the plaintiffs from making other claims nor do they relieve the defendants from other liabilities if they can be proven”.

SUMMARY

19.	In summary, except where I have ordered the removal of the third defendant from this proceeding which I will uphold, I will dismiss the balance of the defendants’ notice of motion.  

COST

20.	Cost is discretionary.  I will order the defendants to pay half of the costs of the plaintiffs in defending this application.  Cost will be assessed on a party/party basis to be taxed if not agreed.

THE ORDERS OF THE COURT

21.	I make the following orders:

1.	The defendants’ notice of motion filed on 23 November 2018 is dismissed substantially.

2.	The third defendant is not a party to and its name shall be removed, from the proceeding.

3.	The defendants (excluding the third defendant) shall pay half of the plaintiffs’ cost for defending the application on a party/party basis which may be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
_______________________________________________________________
Island Legal Services:	Lawyers for the Plaintiffs
Kamen Lawyers:	Lawyers for the Defendants