N7997

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 724 of 2018 (COMM)

BETWEEN:
BALI LUPAI
Plaintiff

AND:
CHIEF EXECUTIVE OFFICER TO DIGICEL (PNG) LIMITED
First Defendant

AND
DIGICEL (PNG) LIMITED
Second Defendant

Waigani: Anis J
2019: 4 & 13 September

MOTION TO DISMISS – Order 4 Rule 5(1) – National Court Rules - proceeding filed by a non-practicing lawyer for the plaintiff – whether writ defective or lacks form – Order 4 Rule 16 and forms 4 & 5 – National Court Rules - Order 10 Rule 9A(15)(2)(d)(e) and Order 8 Rule 27 – National Court Rules - summary determination – whether pleadings or want of form of the writ of summons and statement of claim amounts to abuse of court process

Cases Cited:

Gordon Gala Junior v. The State (2017) SC 1629
PNG Aviation Services Pty Ltd v. Geob Karri (2009) SC1002

Counsel:

Nil, for the Plaintiff
Mr J P Munull Jr, for the Defendants

RULING

13th September, 2019

1.	ANIS J:	This was an application by the defendants to dismiss the proceeding.  The application was heard on 4 September 2019.  I reserved my ruling thereafter to a date to be advised. 

2.	This is my ruling.

BACKGROUND

3.	The plaintiff filed his writ of summons and statement of claim on 21 June 2018.  The claim is for allege outstanding rental payments for the use of one of the second defendant’s towers, namely, Tower No. 435.  The plaintiff claims that the tower was erected in 2007 on his people’s land, and he claims to be the principal landowner.  He describes the land as Kupipira Land and says that it is situated at a location call Tumbalere, in Kagua in the Southern Highlands Province.

4.	The plaintiff had been represented by this person, Paul Masta.  I note that Mr Masta was the person that drafted and filed the writ of summons and statement of claim on behalf of the plaintiff.  He made one appearance on behalf of the plaintiff on 5 September 2018.  At that time, the Court, amongst others, directed the plaintiff to engage a practicing lawyer to act for him or otherwise to appear in person in relation to the matter.

APPLICATION

5.	The defendants’ application was filed on 21 May 2019.  It seeks the following orders:

1.	The proceedings be dismissed pursuant to Order 4 Rule 5(1), Order 8 Rule 27, Order 10 Rule 9A (15)(2)(d)(e), Order 12 Rule 40 of the National Court Rules, Section 60 of the Lawyers Act 1986 and this Honorable Court’s inherent jurisdiction to control proceedings before it.
2.	The plaintiff pay for the Defendant’s costs on a solicitor-client basis.
3.	Such further or other orders as this Honorable Court deems appropriate.

6.	The defendants rely on the following evidence in support of their application:

	(i)	Unsealed affidavit of service of Hoko Steven sworn on 30 August 2019;
(ii)Affidavit of John Munnull Jr filed on 3 December 2018;
(iii)Affidavit of John Munnul Jr filed on 10 December 2018; and
(iv) Affidavit of John Munnul Jr filed on 21 May 2019.

SERVICE

7.	As a preliminary matter, I inquired whether the plaintiff had been served and therefore was aware of the application returning at 9:30am on 4 September 2019.  In response, counsel for the defendants assisted with reference to the unsealed affidavit of service of Mr Steven.  I note that I had granted leave to the defendants to rely on the said affidavit.  In a brief ruling, I noted that the Court had on 19 July 2019 ordered substituted service of the application documents upon the plaintiff.  

8.	I was then satisfied that the application documents had been duly served on the plaintiff, and also that the plaintiff had been notified of the hearing date which was at 9:30am on 4 September 2019.  I allowed the defendants to move their application ex-parte.

ISSUES

9.	There are various issues to address.  In my view, I will firstly address the issue of representation.  Subject to my finding, I may proceed to address the other issues that have been raised by counsel in his submissions.

COURT ORDER OF 5 SEPTEMBER 2018

10.	I note that the plaintiff was ordered on 5 September 2018 to engage a practicing lawyer to act for him in the matter.  In the alternative, the Court also ordered the plaintiff to appear in person to prosecute his claim.

11.	Since then, I note evidence which shows that the plaintiff has not engaged a lawyer to act for him.  This is also confirmed by perusal of the court file.  The plaintiff failed to appear in Court on 12 December 2018.  On 6 February 2019, the plaintiff attempted to use Mr Masta, to appear for him in Court, that is, despite the Court’s order of 5 September 2018.  The Court refused leave to allow Mr Masta to appear on that day for the plaintiff.  On 5 June 2019, the plaintiff again failed to appear in Court.  By that time, the defendants were having difficulties in trying to communicate with or serve the plaintiff with court documents.  The plaintiff does not have a permanent address of his own.  On 19 July 2019, the defendants applied for and substituted service was ordered by the Court in their favour. The application documents were then served as evident in Mr. Steven’s affidavit.

12.	When I consider all that, I note that the plaintiff has been pursuing the matter in defiant of a Court order or direction.  He was specifically directed on 5 September 2018 to seek legal representation or appear in person.  Instead of that, he took steps as I have summarised above, and I note that he had attempted to continue to engage Mr Masta to act for him.  In my view, the plaintiff’s action directly breaches Order 10 Rule 9A(15)(2)(c).  It reads, and I quote in part: the Court may summarily dispose of a matter......for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.  I note that the plaintiff has also failed to appear to prosecute his claim on various occasions in the past as well as in the present application.  Those are relevant grounds, in my view, for dismissal of proceeding under Order 10 Rule 9A(15)(2) of the National Court Rules.

PAUL MASTA

13.	Mr Masta is not a lawyer.  This fact is not disputed.  Yet, Mr Masta had purportedly acted for the plaintiff in the past.  Let me explain.  He files the plaintiff’s claim and puts himself down as the plaintiff’s contact person.  He states his address in the plaintiff’s writ of summons and statement of claim.  He also states his full name and signs off with a commissioner for oaths stamp at the final page of the writ of summons and statement of claim, as if he is a practicing lawyer acting for the plaintiff.

14.	The defendants refer to Order 8 Rule 27 of the National Court Rules, and claim, amongst others, that the proceeding is an abuse of the court process because the writ of summons and statement of claim was filed without regard to its form.  The relevant forms to observe to file a writ of summons and statement of claim are stated under Order 4 Rule 16 of the National Court Rules.  They are forms 4 and 5 in the National Court Rules.  Forms 4 and 5 do not include any other persons other than the plaintiff, his or her lawyer, the lawyer’s agent or a next friend, as persons who may sign and put down their names and address for service, in a statement of claim.  The defendants also drew the Court’s attention to Order 4 Rule 5(1) of the National Court Rules.  The provision reads, and I quote in part, any person may proceed in the Court by a solicitor or in person.  The provision is obviously relevant and, in my view, is in par with Order 4 Rule 16 and the details that are set out under forms 4 and 5 of the National Court Rules.  

15.	Let me also say this.  The Supreme Court, in the case of Gordon Gala Junior v. The State (2017) SC 1629, has added or affirmed a further option where a party may seek representation from a person who is not a lawyer, and that is in a situation where the Court grants leave.  The Supreme Court held, and quote in part, The right of a party to a legal representative of his or her choice is not absolute. If the party chooses not to appear in person, the legal representative must be a lawyer admitted to practice or a person to whom, following application, the Court grants leave to appear.  (Underlining is mine).  The decision is of course binding upon this Court.  I note however that in the present case, Mr Masta had sought leave of the Court but leave was refused on 6 February 2019.  It also appears that the issue had also been dealt with by the Court earlier on 5 September 2018.  And I note that there are no appeals filed against the Court’s decisions on both these occasions.  But that said, if there is one filed (i.e., appeal), it has not been brought to my attention.

16.	I will now make my findings.  I uphold the defendants’ submission that the plaintiff’s actions including the filing of the writ of summons and statement of claim, were in breach of the rules and the court process.  In this case, they breach and do not follow the processes that are required under Order 4 Rules 5(1) and 16 of the National Court Rules.  The writ of summons and statement of claim was prepared and filed by Paul Masta contrary to forms 4 and 5 of the National Court Rules.  I also note that Mr Masta is not the plaintiff nor a qualified practicing lawyer, and that he was never granted leave by the Court to act as a non-lawyer for the plaintiff.  In that regard, I also find that the plaintiff has abused the Court process when he had engaged Mr Masta to draft his writ of summons and statement of claim to file on his behalf in the manner and form as it is shown in the court file.

SUMMARY

17.	With these findings, there is no need for me to consider the other issues in the application.  I will dismiss the proceeding.

COST

18.	Cost award is discretionary.  I have not been drawn to evidence which showed that the plaintiff had been forewarned that the defendants would be seeking cost on a solicitor/client basis in the event that the matter is dismissed.  See case of PNG Aviation Services Pty Ltd v. Geob Karri (2009) SC1002.  

19.	I will therefore award cost to follow the event based on the normal cost scale, that is, on a party/party basis which may be taxed if not agreed.

ORDERS OF THE COURT

20.	I make the following orders 

1.	This proceeding is dismissed for abuse of court process.

2.	Cost of the proceeding is awarded against the plaintiff in favour of the defendants on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the time of settlement by the Deputy Registrar of the National Court which shall take place forthwith.
________________________________________________________________
In person: Plaintiff
John Peter Munnull Lawyers: Lawyers for the Defendants