Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Avaukava v Tapat [2020] PGNC 420; N8689 (9 December 2020)

N8689

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 288 OF 2019

BETWEEN:
ANTHONY AVAUKAVA
Plaintiff

AND:
JIMMY TAPAT SITTING AS PRINCIPAL MAGISTRATE IN PORT MORESBY DISTRICT COURT
First Defendant

AND:
NATIONAL HOUSING CORPORATION
Second Defendant

AND:
RAYMOND ISSAC
Third Defendant

Waigani: Miviri J
2020: 05^th November, 9^th December

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of motion –dismissal for want of prosecution Order 16 Rule 13 (1) & (2) (b)(a) NCR – affidavit of service – affidavit of third defendant – Evidence of discontinuance Plaintiff –No abuse of process – balance discharged – motion to dismiss denied – matter adjourned to directions – cost follow the event.

Cases Cited:

Telikom PNG Limited v Independent Consumer & Competition Commission [2008] PGSC 5; SC906
Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Counsel:

I. David, for Plaintiff
L. Tangue, for Third Defendant

M Tukulya, for First Defendant

RULING

09^th December, 2020

1. MIVIRI, J: This is the Ruling of the Court on the third defendant’s application by notice of motion filed 06^th October 2020 pursuant to Order 16 Rule 13 (13) (1) & (2) (b) (a) of the National Court Rules for dismissal of the matter. He is seeking dismissal of the entire proceedings for abuse of process of the Court.
   
2. Abuse of process denotes that proceeding have commenced as they have but not according to law and the rules of court. Reliance in this regard has been sought on Telikom PNG Limited v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008). Effectively the allegation he raises are that the plaintiff here has commenced a number of proceedings relating to the same matter. It is therefore likened to that case and is by the reason susceptible to the same position in law dismissal of the proceedings in its entirety.
   
3. He has filed his affidavit dated 06^th October 2020, second affidavit of the 07^th October 2020 and a third dated 11^th June 2019 which was for the opposition to leave in this proceeding. He deposes that the plaintiff has filed on the 18^th March 2019 WS. 148 of 2019 regarding land at section 27 allotment 1 at Sabama National Capital District annexure “A” to his first affidavit. Then on 4^th April 2019, WS 9/2019 annexure “B” to the same affidavit. Then again, he filed on 30^th April 2019, WS. 379/2019. And on the 30^th April 2019, he filed OS (JR) 228/2019.
   
4. By this fact there is gross abuse of the Courts process with the institution as here of multiplicity of proceedings amounting to abuse of process and therefore dismissal based on the law set out above. He has no excuse because he had engaged lawyers who were responding to his instructions in this way. He provides no good reason for so instituting, and reliance is place on the law set out above added to by the case of Madang Cocoa Growers Export Co Ltd v Gunar [2012] PGNC 177; N4881 (8 November 2012) for the discretion of the court to be accorded on that basis for dismissal of the entire proceedings for abuse.
   
5. The plaintiff on the other hand opposes and has sought reliance upon the affidavit of Issac David sworn of the 04^th November 2020 filed the same day. He is lawyer with the office of the Public Solicitor having carriage of the case on behalf of the plaintiff. On the 03^rd November 2020 at about 11.00am he served on the office of the third defendant’s Lawyers a letter of instant date. It is annexure “A” to his affidavit. It is in the office letter head of the office of the Public Solicitor dated the 03^rd November 2020. The author is the deponent. He encloses with that letter sealed copies of the Notices of Discontinuance filed in WS (HR) No, 09 of 2019 and WS (HR No. 379 of 2019. And places that this settles that there are no other matters before the other Courts in respect of the plaintiff. This present matter becomes the only matter pursued against the third defendant.
   
6. Further he clarifies that there is only one statement sought now by the plaintiff which is the first of the 30^th April 2019 within time allowed and will be pursued. The other two of 19^th June 2019 and 23 November 2019 are outside of the time and so will not be pursued but leave will be formally sought before court to withdraw both. He places the defendant on notice that costs will be sought on a solicitor Client basis if the subject motion is not withdrawn. He is entitled as he does. Parties are entitled to be fair upon each other in the way they address before the matter comes to the powers of determination by the court.
   
7. The affidavit of the 04^th November 2020 is recent and in time will be the latest facts on the matter compared to the third defendants set out above which are in October and initially in June 2019. In determining this issue of fact whether or not there exists other proceeding apart from OS (JR) 228/2019 it is clear by this evidence that these Notices of Discontinuance filed in WS (HR) No, 09 of 2019 and WS (HR No. 379 of 2019 prove that this are no longer open and pending before this Court. It means the plaintiff and the defendants are confined to this proceeding for judicial review against the decision of the National Housing Corporation to sell the property without recourse to sitting tenant the plaintiff to be accorded first right of purchase.
   
8. The court is not unnecessarily brought to severing judicial time in this one matter broken down constituting abuse, but that it is now for all intent and purposes confined to the heart of the decision of the National Housing Corporation to sell as it did. That is properly before the court, there is no abuse constituting and therefore by these facts the action for dismissal is not made out.
   
9. But the costs are awarded against the third defendant in favour of the plaintiff on a solicitor client basis. And the reasons are simply that the matter has been drawn by counsel to the third defendant to desist and proceed with the substantive action. It has not been heeded despite that clear advice; it means the court has been unnecessarily drawn it should not have ended here. There was forewarning, which was not heeded, hence the responsibility is now upon the third defendant to make good the plaintiff. Because he has demonstrated blameworthiness for that fact without just cause and must pay for it. He and his lawyer’s conduct warrant as unreasonable, or blameworthy that cost is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020).
   
10. The formal orders of the Court are:
    
    • (i) The application of the third defendant is refused.
    • (ii) Cost will follow the event on a solicitor client basis if not agreed to be taxed.
      
    • (iii) The Substantive proceedings are adjourned to the next directions date Monday 14^th December 2020 at 9.30am for the allocation of a hearing date.

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff

Office of the Solicitor General: Lawyer for the First Defendant

Tangue Lawyers: Lawyer for the Third Defendant/Applicant