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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (COMM) No. 1360 of 2017
BETWEEN:
NIUTECH BUILDING & CIVIL CONTRACTORS LIMITED
Plaintiff
V
WOOD STAR BUILDERS LIMITED
Defendant
Waigani: Anis J
2020: 11th & 14th December
NOTICE OF MOTION – seeking to dismiss proceeding – Order 8 Rule 30 and Order 12 Rule 40 – National Court Rules – preliminary argument – want of source of application or incorrect source pleaded – want of precise pleading of the source of the application – consequently want of form of notice of motion – application incompetent – exercise of discretion
Cases Cited:
Muriso Pokia v. Mendwan Yallon (2014) SC1336
Counsel:
Ms D Culligan, for the Plaintiff
Mr M J Paiya, for the Defendant
RULING
14th December, 2020
1. ANIS J: The defendant applied to the Court to dismiss the proceeding on 11 December 2020. I heard and reserved my ruling to a date to be advised.
2. Parties have been notified so I will rule on it now.
BACKGROUND
3. The plaintiff claims, amongst others, damages for breach of a purported oral agreement and damages based on alleged fraudulent or deceitful actions of the defendant. The plaintiff says the defendant had engaged it to partake in a contract where the defendant had been awarded with, by a company called Mira Limited. The contract was to design and construct a service station at 9 mile outside the city precincts of Port Moresby. The plaintiff claims that it had designed and provided the bid on behalf of the defendant, to Mira Limited. The plaintiff says the bid was accepted by Mira Limited. On 3 July 2014, Mira Limited signed a contract with the defendant to construct the service station (the written contract). The plaintiff claims that the defendant had promised it, pursuant to the oral agreement, that it would, amongst others, receive 50% of the profits received under the written contract, after its completion or after the plaintiff completes constructing the service station. The plaintiff alleges that based on the said promise under the oral agreement, it undertook work on behalf of the defendant and completed constructing the service station. The plaintiff alleges, amongst others, that the defendant had failed on its promise, which was why it has commenced this proceeding.
4. The defendant has denied the claim. It has filed a defence.
MOTION
5 The defendant’s notice of motion was filed on 6 November 2020 (NoM). It seeks the following main relief:
PRELIMINARY CHALLENGE
6. The plaintiff makes the following preliminary challenges. Firstly, it submits that relief 1 fails to cite a correct source. Counsel submits that Order 8 Rule 30 of the National Court Rules, is not a source that refers to the Court’s jurisdiction where the Court may invoke to dismiss the proceeding. It submits that the pleading contravenes Order 4 Rule 49(8) of the National Court Rules.
7. The defendant submits in reply that it has sufficiently pleaded the source, namely Order 8 Rule 30 of the National Court Rules. Counsel submits that it is entirely discretionary for the Court to decide whether to accept the source as pleaded or not. It submits that because the plaintiff has not sufficiently pleaded fraud in its amended statement of claim, that the Court has the power to dismiss the entire proceeding for this reason.
8. Order 8 Rule 30 states:
30. Fraud, etc. (16/2)
A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.
9. Also relevant is Order 4 Rule 49(8) of the National Court Rules, which states:
All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.
The motion must state the following;
"...move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act...) ...".
10. It is obvious, in my view, that Order 8 Rule 30 does not confer jurisdiction upon a Court to exercise and decide whether to grant or refuse relief that is sought. It rather informs litigants that for matters or allegations such as fraud, one must expressly plead or provide particulars, in the statement of claim. Order 8 Rule 30 may be relied upon by a party as a reason why dismissal is sought, however, it does not invoke the jurisdiction of the Court to grant the relief.
11. The Supreme Court addresses this type of issue, in Muriso Pokia v. Mendwan Yallon (2014) SC1336. It held in part, and I quote:
(1). The notice of motion was non-compliant with the National Court Rules, Order 4, Rule 49(8) as it did not contain a sufficient reference to the Court’s jurisdiction to grant the orders sought. It referred to irrelevant laws. It should have referred to Order 12, Rule 8 and/or Order 12, Rule 35 of the National Court Rules. However, it lays within the discretion of the primary Judge to nevertheless hear and determine the motion. No error of law was involved in the primary Judge deciding to hear and determine the motion.
12. In view of Order 4 Rule 49(8), the Supreme Court recognized a primary judge’s discretion in a case where a defect in a notice of motion had been undetected and had slipped past the Court Registry and was before the primary judge for hearing. The Supreme Court said that a primary judge has within his or her discretion to choose whether to permit or reject such a defective notice of motion. In the appeal that was before the Supreme Court, the Supreme Court noted that the primary judge had chosen to hear the merits of the defective notice of motion. The Supreme Court said no error had been committed because it was within the discretion of the primary judge to make that decision which it had done.
13. I am faced with this situation, and in that regard, I ask myself this. Should I permit relief 1 as pleaded? I would exercise my discretion against the defendant. I do so for the reasons as I have stated above, which is that Order 8 Rule 30 does not confer a jurisdictional basis for me to exercise to dismiss the proceeding as is being requested herein. The second reason is this. The defendant is represented by counsel. I find this fact (i.e., in a case where a party has legal representation) significant for this consideration, and I will say this. Failure by counsel to state the precise source or file a properly formulated notice of motion that complies with the National Court Rules, should not, in my view, be tolerated or taken lightly by the Court. Such conduct of lawyers, if tolerated, would only lead to deterioration of the court rules, lowering of the standard of good practice and procedures of court processes, and be seen as condoning the actions of lawyers or parties that come to Court without regard or observance of these basic standards or requirements. It is possible that I could have exercised my discretion differently had the defendant appeared in person or was unrepresented. Discretion of this Court could have been exercised differently or favourably for the defendant in that regard or under such circumstances, that is, in a case where a party is a lay person or is unrepresented by a lawyer. This is, however, not the case.
14. For these reasons, I find relief 1 of the NoM incompetent and I dismiss it.
15. I move on now to consider relief 2. The plaintiff submits that the relief is incompetent because it does not state concisely what source is being relied upon, that this, where the defendant pleads “Order 12 Rule 40” of the National Court Rules. The defendant, on the contrary, submits that the source as pleaded under relief 2 of the NoM is sufficient and that the Court should exercise its discretion and allow the relief to be dealt with on its merit.
16. It is also obvious, in my view, that the rule that is cited is not correctly pleaded under relief 2 of the NoM. I note that I had pointed out the said defect to the defendant’s counsel at the time when he was presenting his submission. Counsel submitted in response that the precise source that should have been pleaded was Order 12 Rule 40(1)(a) and (b) of the National Court Rules. I note that no application was made at that time to correct the defect. The plaintiff, when responding, then raised this issue and objection, to the Court.
17. I uphold the plaintiff’s submission on this preliminary argument. I give the same reasons as stated above in my judgment. I will add this. Lawyers that appear before the National Court must and are required to, as opposed to expected to, maintain, and uphold to the highest standard their profession as lawyers and as officers of the National and Supreme Court. By law, lawyers charge fees for their professional services to their clients. Their role of course is not only to their clients, but also and importantly, to the Court and to the public or community at large. Lawyers are bound by the Professional Conduct Rules that governs their conducts in Court as well as in public. To me, not adhering to basic standards of practice and procedures, must never be permitted by any Court of law, especially by the National and Supreme Court of this jurisdiction.
18. I therefore find in this case, that pleading Order 12 Rule 40 under relief 2 of the NoM is vague and defective. I find that it is pleaded in breach of Order 4 Rule 49(8) of the National Court Rules. The relief sought therefore cannot be determined on its merit.
19. Even if I may be wrong and were to consider the merit of the claim under relief 2, I would not find the claim to be without merit, frivolous and vexatious. I would give 3 reasons for my decision. Firstly, the claim for oral contract and fraud have been pleaded in the Amended Writ of Summons and Statement of Claim (Amended SoC). The alleged oral contract is pleaded therein at paragraphs 12 to 20. It is not difficult to follow the allegation. The plaintiff claims that after the defendant had been awarded with the written contract to construct the service station, the defendant, orally subcontracted the work to the plaintiff to undergo with the promise that upon completion, that they would split the profits from the monies that Mika Limited would pay to the defendant for the completed constructed service station. On that understanding, the plaintiff claims that it had engaged its staff and had completed the work on behalf of the defendant. It alleges that it had tried to get the defendant to sign a written contract regarding their oral agreement, but the defendant had refused to do so. It alleges that the work was successfully completed with the construction of Mira Limited’s service station, but instead of keeping to the promise as per the oral agreement between the plaintiff and the defendant, the defendant purportedly breached the oral agreement by not paying the plaintiff its portion or share of the profit. In regard to the claim for alleged fraud, the said allegation is pleaded at paragraph 21 of the Amended SoC. I note that I did raise a point that the allegations of fraud alleged by the plaintiff and as pleaded, appear to have been committed by the defendant against Mira Limited and not against the plaintiff. But I note that parties did not properly address me on this query, that is, whether it should be a relevant consideration. This brings me to my second reason of why I would have ruled in favour of the plaintiff in regard the second relief, which is this. The insufficiencies or deficiencies in the pleadings, are things that may be cured either by amendments or by request for further and better particulars, which are provided for in the National Court Rules. Dismissing the proceeding would not be the appropriate remedy at this juncture or under the circumstances of this case. The third reason is this. The plaintiff has filed evidence in support of the allegation of existence of an oral agreement between the parties and on the allegation of fraud or deceit. I refer to the affidavit of Wani Timbun filed on 7 November 2018. He is the managing director of the plaintiff. The affidavit is very thick because it attaches various documents including the written contract document for the construction of the service station that had been signed between the defendant and Mira Limited. As I had indicated to counsel for the defendant at the hearing, it may be unfair to simply, and at this juncture, disregard such evidence and summarily determine the matter. Counsel tried to argue or challenge the evidence to which I replied that perhaps that goes to show that the matter should be properly trialed so that the parties could all have their day in Court, to argue, adduce evidence and test the credibility of their evidence at the substantive hearing.
20. Given my findings on both preliminary matters, I find the NoM incompetent and therefore will dismiss it with cost.
REMARK
21. I will end by making this remark. The defendant alleges insufficiencies in the plaintiff’s pleadings regarding its claim of an oral contract and fraud. One way to deal with that would be to request for further and better particulars, or for the parties to agree to file amendments to their pleadings.
ORDERS OF THE COURT
22. With that, I make the following orders:
The Court orders accordingly.
_______________________________________________________________
Melanesian Legal Services: Lawyers for the Plaintiff
Paiya Lawyers: Lawyers for the Defendant
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