PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2020 >> [2020] PGNC 415

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Lita v Wawun [2020] PGNC 415; N8684 (7 December 2020)

N8684

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 120 OF 2019


BETWEEN:
THOMAS LITA
Plaintiff


AND:
MICHAEL WAWUN
First Respondent


AND:
LAURA WAWUN KUVI
Second Respondent


Waigani: Miviri J
2020: 20th October, 7th December


PRACTICE & PROCEDURE – Judicial Review & appeals –Appeal District Court – Notice of Motion to Dismiss – For Want of Prosecution – Abuse of Process – Order 10 Rule 9A (15) (2) (a) (c) NCR – Order 12 Rule 40 NCR – Evidence sufficient – delay in appeal – reasons not substantial – defiance of court order – Grounds for dismissal of proceedings established – dismissal of proceedings – cost on indemnity basis in the cause.


Cases Cited:


Takori v Yagari [2007] PGSC 48; SC 905
Philip v Tiliyago [2019] PGSC 17; SC1783
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Aihi v The State (No 1) [1981] PNGLR 81
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346
Kelo v Ipu [2020] PGSC 92; SC2003
Kakaraya v Somare [2004] PGSC 11; SC762
Opi v Telikom PNG Limited [2020] PGNC 168; N8290


Counsel:


R. Lains, for Appellant

F. Kuvi, for Respondents

RULING

07th December, 2020

  1. MIVIRI, J: This is the ruling on a notice of motion dated the 20th August 2020 pursuant to Order 10 Rule 9A (15) (2) (a) (c) and (d) of the National Court Rules applied for by the Respondents for dismissal of this appeal in its entirety for non-compliance of Court orders of 12th March 2020.
  2. And which orders are:
  3. The summary is that this is a very clear concise and unambiguous order curtailed primarily to see out expeditiously this Appeal, so that Justice is served all with efficiency and diligence. More than enough time has been accorded to ensure that the appellant is not derailed from the Judgement seat without proper exercise of caution and restraint by the court: Takori v Yagari [2007] PGSC 48; SC 905 (28th February 2007), which states, “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.”
  4. It should therefore be at the prime and underpinning for all who are before the Court, whether plaintiff, appellant, or respondent, defendant, all are obligated to ensure it is in their uttermost best to comply forthwith without any recourse to faulter the order. Justice is according to and incompliance of fulfillment of the law. The directions are intended in that regard and so here where the appeal is from a decision of the District Court, demarking whether or not the appellant’s or the respondents rights, obligations and duties in law were given effect to, it is all the more incumbent here, at the forefront here upon the appellant to see out with efficiency the proceedings at law.
  5. Because it is, He who saw fit to drag the respondent into court, it is upon him to ensure it is not frivolous or vexatious account that is pursued of. It is not light-heartedness, or being superficial, very shallow, and lacking seriousness, or of being irresponsible, and thoughtlessness, flagrantly lacking in sense, and feather brained. But that justice has drawn blood and so the pursuit. It must be attended to because life will wither if not accorded. And that is the flip of being vexatious being annoying or just irritating upsetting troublesome upon the other side to the proceedings, here the appeal and the respondent. He who asserts must prove and it follows that all reliable comprehensive evidence is placed here to demonstrate the vigour of the appellant to accede to the orders set out above.
  6. Hence reliance is drawn by the respondent upon Order 12 Rule 40 of the National Court Rules that the appeal be dismissed for being frivolous and vexatious and for being an abuse of the process. Further in the alternative and pursuant to Order 18 Rule 13 (12) (4) of the National Court Rules the appeal be summarily disposed of. And consequentially the Orders of the District Court dated the 15th November 2019 be given effect forthwith. And costs of the application and the entire appeal be borne by the appellant on an indemnity basis. And such other orders as deemed appropriate by the court. Time be abridged to the time of settlement by the Registrar which shall take place forthwith.
  7. Order 10 Rule 9A (15) (2) (a) (c) and (d) is in the following terms that the court may summarily determine a matter on the application of a party as is the case here. Or it may be on the initiative of the court or by the registrar. This is for want of prosecution since the filing of the proceedings or since last activity on the file. Or for failure to appear at any listing directions or hearing by the party. And this is the fundamental that runs through Order 12 Rule 40 which is specifically engulfed by the language of sub rule (d) of Order 10 Rule 9A (15)(2)(d). Therefore, the effects of Order 12 Rule 40 are applicable here that there is no reasonable cause disclosed in the proceedings here. Or that the proceedings are frivolous, vexatious or an abuse of process. And dismissal is appropriate where the balance is discharged in this regard.
  8. This is not a mechanism intended for which the object is to deny the litigant from the seat of Judgement, but is measure resorted to at the discretion of the Court, properly invoked by the facts to warrant distilling to ensure that directions, orders, issued by the court either on the application of the parties, or on its own initiative are fully satisfied. So that what is brought out before the court is served what is pleaded and which meets the hands discretion of the lady Justice. In so stating the court is fortified by Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). Relevant and essential in there were directions of the primary court to include averment that the action was in representative authority properly detailed out in accordance with Order 5 rule 13 (1) of the Rules of Court. That was not done and so the court on the application dismissed the proceedings reasoning that court orders and directions must be complied with. Failure is detrimental to the survival of the appeal before the court.
  9. The appellant seeks reliance on an affidavit dated the 11th September 2020 sworn by Randolph Lains Lawyer principle of the Firm Hardy & Stocks Lawyers that there was no activity on the file because from the 2nd April to the end of August 2020 and in particular 22nd April 2020 the hearing could not eventuate because of closure due to covid-19. That is an assertion relied by annexure “B” a photograph allegedly of the protocols that were set in place at the District Court. It is not clear and is unreadable and does not make sense, because the full text is not disclosed so as to get the principle intended. Further it is not verified by a proper officer such as the clerk of that court who has submitted certified all documents of this appeal, Paul Sarevela, Clerk of the Port Moresby District Court, Officer In Charge of the Records. In my view the totality is it is evidence not beyond the balance of preponderance and therefore will not extend the arm of Justice to save what is asserted by the appellant.
  10. Lawyers are officers of the Court and in the pursuit to serve justice it is upon them to so see by the rules of the Court that all is done to ensure what is sought has proper basis in law and the rules and not otherwise. The court does not operate at the convenience and dictate of the parties but by law. Here the evidence relied in affidavit set out above pursuing lacks particularity of the dates alleged in the affidavit deposed. The affidavit will be self- serving if it is not corroborated by independent evidence. Just as adjournments are accorded by proper evidence so accounted before court: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) the same cannot be said of the affidavit that is relied here. And so are proceedings that are intended to be brought out of time into the hands of Justice by section 155 (4) of the Constitution: Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981) which has been followed in many other decision including Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346 (1 September 1989). Primarily it must be demonstrated by material properly filed before the court that there are cogent and convincing reasons for so opening even in the face of clear evidence breach in adhering to time limitations imposed for compliance of the court orders made set out above.
  11. In this regard the respondent has placed before in support of its motion the affidavit of Laura Wawun Kuvi who is one of the respondents. It is her evidence that the District Court trial concluded on 11th October 2019. On the 15th November 2019, the decision of the court was handed down. It was in favour of the respondents. The appellant and his family associates were ordered out and to vacate the property of the respondents within 14 days which is annexure “A” to her affidavit.
  12. The order was blatantly disregarded and not heeded to by the appellant and his family and associates. On 22nd November 2019, the respondents forewarned through their lawyer’s annexure “B” of the consequences in law due on failure which was the case then. The 14th day was the 29th November 2019 also the day that the appellant filed this appeal. He sought an ex parte hearing before this court and secured interim orders preserving status. They were interim to the 05th December 2019 but no inter party appearances eventuated and when it finally got around to an appearance on the 12th March 2020 it had elapsed and the Court commented that the appellant had nothing covering his backside. That order legitimate current and pending against him has not been stayed or set aside or varied even in the hearing of this appeal. It is open current and in force for all intent and purposes. Should the application for dismissal be granted that order must be affected its full force against the appellant.
  13. It is therefore an action that was frivolous because title to the subject property by the findings of the orders made from the primary court clearly in law showed that the appeal was nothing other than to frustrate the already clear position in law of the respondents to the subject property. And what was done in the appeal did not derive from proper basis at law. Its intent given this backdrop was to annoy and frustrate the movement of the respondents onto the property. It is therefore a frivolous and vexatious action without the sanction of the law and must be on that reason dismissed forthwith with costs: Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020).
  14. Given all there is nothing identifiable against or apparent to sway otherwise. It is clear that the court must protect the orders it makes and the process it sets in place upon the parties. Because as the Supreme Court said in Philip case’s (supra), “....(1) Court orders and directions must be complied with and non-compliance shows disrespect to the Court and is at the peril of the defaulting party; and (2) the defaulting party must provide a reasonable explanation for the default.” Because the power to dismiss is discretionary and the facts must warrant that there has been a blatant disregard and unexplained failure to adhere to the directions or the orders of the court: Kakaraya v Somare [2004] PGSC 11; SC762 (1 October 2004). As it is there is nothing substantial either on fact or law other than the demise due and warranted both in fact and law dismissal of this appeal and action in its entirety for non-compliance of the directions and orders of this court of the 12th March 2020.
  15. Costs will follow the cause on an indemnity basis because of the reasons set out above that there was no adherence observance of the direction and the orders of this court. I am mindful that costs are a discretionary matter. It is by the facts and circumstances will be awarded where conduct of party or lawyer is so improper, unreasonable, or blameworthy that punishment is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020). Here there is clear unexplained defiance of the orders of this court. The reasons that have been placed are not substantial nor do they deviate what is clear that there was no professionalism shown out to the requisite balance by the appellant and his counsel. This is not to say or to suppress a Lawyer from serving his client to the best and of discharging his duty without fear or favour but to ensure that the wheels of Justice run without abuse. Costs will therefore be on an indemnity basis against the appellant to follow the event. Lawyers are advocates officers of the Court and owe allegiance to the Court not to the dictate of the client stepping into the arena would have the dust of the arena cloud proper and professional discharge.
  16. Here is clear case of a stay that has outlived its invite and should be liquidated to the dictate of what the law is. The formal orders of the court are therefore:
  17. Costs will follow the event.

Orders Accordingly.

__________________________________________________________________

Hardy & Stocks Lawyers: Lawyer for the Plaintiff/Applicant

Elemi Lawyers: Lawyer for the Defendant

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2020/415.html