N9722

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 597 OF 2021 & OS NO. 260 OF 2021

BETWEEN:
SHIELA SAMAI
Plaintiff

AND:
CATHY SAMAI
Defendant

Waigani: Tamade, AJ
2022: 7th & 8th June

NATIONAL COURT RULES – Order 12 Rule 8 (3)(a) – setting aside or varying judgment or order – the Court may set aside or vary an order – where the order has been made in the absence of a party – defendant seeks to have the order set aside or discharged.

NATIONAL COURT RULES – Order 12 Rule 40 – Frivolity – no reasonable cause of action is disclosed – the proceedings are frivolous or vexatious – the proceedings are an abuse of the process of the Court – plaintiffs’ statement of claim does not disclose a reasonable cause of action – proceedings be dismissed. 

INJUNCTIONS – Interlocutory injunctions – injunctive orders be set aside – requirements for injunctive orders – must make an arguable case to obtain injunctive orders. 

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinean Cases

Bal v Taiya [2003] PGNC 35; N2481 
Akai v Reeves and Anor [2014] SC1393
Employers Federation v Waterside Workers (1982) N393
Robinson v National Airlines Corporation [1983] PNGLR 476

Overseas Cases

American Cyanamid Company v Ethicon Limited (1975) 1 ALL ER 594

Counsel:	

Ms Karen Nugi, for the Plaintiff
Ms Alice Kimbu, for the Defendant

8th June, 2022

1.	TAMADE, AJ: This is a ruling on a Notice of Motion filed by the Defendant on 11 May 2022 seeking the following orders:

a)	Pursuant to Order 12 Rule 8(3)(a) of the National Court Rules, the interim orders of 30 December 2021 obtained by the Plaintiff ex parte be set aside and or discharged.

b)	Pursuant to Order 12 Rule 40(a) (c) and (d) of the National Court Rules that the Plaintiffs Statement of Claim and the entire proceedings is dismissed for disclosing no cause of action and for being an abuse of process.

2.	These are related proceedings instituted by way of a Writ of Summons and an Originating Summons in which the Court had previously ruled that both matters be heard together and therefore I proceed to hear this matter considering the application filed in WS 597 of 2021.

3.	In proceedings OS 260 of 2021, the Plaintiff in that matter Mrs Cathy Samai is claiming that she is the legal wife of the Late Mr Maso Samai of Enga Province and claims for declaratory orders seeking that the marriage with one, Sheila Koraka also referred to as Shiela Samai be declared null and void as it is contrary to the relevant provisions of the Marriage Act 1963 and also seeks custody of the children of Mrs Shiela Samai and the Late Maso Samai as well as orders as to the properties of the deceased under his estate in probate.

4.	In WS 597 of 2021, the Plaintiff Mrs Sheila Samai  is claiming that she is the legal wife through the custom of the Late Mr Maso Samai of Enga Province and claims orders that the Letters of Administration granted to Mrs Cathy Samai over the estate of The Late Mr Maso Samai on 9 December 2021 in court proceedings described as WPA No. 94 of 2021 be revoked and that Mrs Sheila Samai be granted instead these Letters of Administration and other consequential relief as claimed.

5.	After filing WS 597 of 2021, the Plaintiff moved the Court for injunctive orders ex parte in the absence of the Defendant and obtained certain interim orders on 30 December 2021.

6.	The terms of the Court Orders of 30 December 2021 are as follows:

i)	The Plaintiff is granted leave to proceed with her urgent motion for interim orders.

ii)	Orders per Term 2, 3 and term 4 not as an alternative but as an additional order.

iii)	The proceedings under reference OS 260 of 2021 and any enforcement or other steps taken under the WPA 94 of 2021 shall all be dealt with together with this proceeding.

iv)	The interim orders and the substantive proceeding shall next return to the Court on 18 January 2022 at 9:30 am or soon thereafter.

v)	The parties are required to have this and the related proceedings resolved by their direct negotiations by 14 January 2022.

vi)	Failing settlement, the parties are required to return to the Court for Mediation to commence and conclude during the balance of the month of January or early February 2022.

vii)	The time of the entry of these orders is abridged to take place forthwith upon the Court signing these orders.

7.	It is important to state that terms 2, 3 and 4 of the Plaintiff’s Notice of Motion seeking injunctive orders as pleaded in her Notice of Motion filed on 28 December 2021 seeks that the Orders are to operate “pending hearing and determination of the proceedings herein”.

8.	On 16 February 2022, the Court Orders of 30 December 2021 were extended for parties’ full compliance until the next return date and the matter was to return to Court on 23 February 2022.

9.	On 5 May 2022 the Court made orders that the matter was to return to Court on 11 May 2022 or soon thereafter and that parties were to continue their out of Court settlement negotiations and return with agreed orders finalizing these matters or come ready to address the Court on the points in contention for the Court to issue a binding opinion or refer the matter to mediation or a form of ADR process.

10.	I state the above directions of the Court so as to ascertain whether the interim injunctive orders of 30 December 2021 would have been dissolved sometime on 11 May 2022 when the matter did not return to Court for whatever reason, it returned to court soon thereafter as is the wording of the Orders of 5 May 2022. I am satisfied that even if the matter did not return to Court any stage after the injunctive orders were extended by the Court, Ms Kimbu has pointed out to the Court that the injunctive orders as pleaded in the Notice of Motion were to operate “pending hearing and determination of the proceedings herein” and so I accept that the injunctive orders still remain active.

Preliminary objections by Ms Kimbu

11.	Ms Kimbu of the Defendant has raised some preliminary objections to the Defendant’s conduct in the matter and I will address these preliminary matters before going into the Defendant’s application.

12.	Ms Kimbu has raised that the Defendant has not filed any Defence in this matter and is therefore not allowed to lead evidence by way of affidavits in the absence of a pleading in a defence. Ms Kimbu submitted that the Defendant has not filed a Defence and has filed a Notice of Intention to Defend outside the time allowed for under the Rules of Court and therefore she can not take any other step without leave of Court pursuant to Order 7 Rule 6 of the National Court Rules.

13.	The Court queried Ms Kimbu whether the Court has the powers to entertain an application for dismissal at any stage of the proceedings to which Ms Kimbu agreed that the Court does have powers to do so however Ms Kimbu maintained that the Defendants has not filed a Defence and therefore she is precluded from raising an application to dismiss.

14.	Order 7 Rule 6 of the National Court Rules is clear that a Defendant cannot take any other step in any proceeding before first filing a Notice of Intention to Defend. The Defendant has filed a Notice of Intention to Defend in the proceedings.

15.	The Court also has a wide discretion to hear any application before it and make such orders as thinks appropriate under Order 12 Rule 1 of the National Court Rules notwithstanding whether a party specifically asks for those orders or not. To my mind, matters such as statutory time limitations, competency of the originating process, locus standi of the Plaintiff and or matters in a representative capacity and the requirements for such matters etc are matters that go to challenge the competency of a claim that a Court has the discretion to hear at any stage of the proceedings and not strictly at trial.

16.	Her Honour the Late Justice Catherine Davani considered the issue of competency and or regularity of a proceeding and ruled in the case of Bal v Taiya [2003] PGNC 35; N2481 (29 October 2003) that the Court has the discretion to determine the issue of competency or irregularity of a proceeding at any stage of the proceeding and not only at the trial of the matter with or without a party seeking for such a dismissal.

17.	The Supreme Court also said the same for matters before the Supreme Court that it can determine the issue of competency at any stage of the proceeding notwithstanding that the time allowed to file an Objection to Competency has lapsed as in the case of Akai v Reeves and Anor [2014] SC1393.

18.	The preliminary objections by Ms Kimbu are therefore refused in this regard.

Whether the ex parte injunctive orders of 30 December 2021 should be extended on being heard inter parte?

19.	Ms Nugi representing Mrs Cathy Samai strenuously argued for her client that the injunctive orders granted on 30 December 2021 should be set aside as it does not meet the requirements or principles for consideration for a grant of injunctive orders.

20.	Mrs Nugi submits that her client is the legal wife of the deceased and therefore the Plaintiff Mrs Shiela Samai does not have any legal right or standing to claim any benefit to the estate of the Late Mr Samai. Ms Nugi submits that as OS 260 of 2021 is yet to be determined whether Mrs Shiela Samai has any legal right as a beneficiary to the estate of the Late Mr Samai, she should wait until the determination of OS 260 of 2021 before pursuing WS 597 of 2021.

21.	Ms Nugi also argues that her client has filed evidence to state that after the grant of the injunctive orders on 30 December 2021, the Plaintiff has tried to assert herself as an administrator over the business affairs of the estate of the Late Mr Samai.

22.	Ms Nugi further adds that there is no serious issue to be tried, that the grounds for obtaining the injunctive orders were speculative and that the case does not meet the balance of convenience, if anything, the Plaintiff’s claim is one of remedy in damages but not a grant of the injunctive orders.

23.	Ms Kimbu on the other hand vigorously argued that there are serious questions to be tried and that to preserve the status quo of the matter, this matter should be allowed to proceed on to trial for a determination of all issues.

24.	Ms Kimbu has also informed the Court that her client has filed an application for contempt as the Defendant has failed to adhere to the Court Orders of 30 December 2021.

25.	The requirements for the grant of injunctive orders have been set down in this jurisdiction adopted from the case of American Cyanamid Company v Ethicon Limited (1975) 1 ALL ER 594 and expanded in this jurisdiction in the case of Employers Federation v Waterside Workers (1982) N393 and Robinson v National Airlines Corporation (1983) PNGLR 476. These requirements are:

a)	has the Plaintiff delayed in making the application?

b)	is the action frivolous or vexatious.

c)	is there a serious question to be tried- does the Plaintiff have a serious and not a speculative case which has a real possibility of ultimate success.

d)	does the balance of convenience favour granting or refusing the injunction.

e)	if an injunction is not granted, can the Plaintiff’s loss be adequately compensated in damages.

f)	is the Defendant adequately protected by the Plaintiff’s undertaking as to damages.

g)	when all other things are equal, the status quo should be preserved.

26.	In considering all the requirements stated above, I find that based on the submissions by both Ms Nugi and Ms Kimbu, there is an arguable case to be tried at the final hearing of this matter and that there is also an Undertaking as to Damages given by the Plaintiff in this matter.

27.	In looking carefully at the Notice of Motion filed by the Plaintiff on 28 December 2021 in WS 597 of 2021, it seems the Plaintiff misstated the parties in her orders in Terms 2 and 3. The Orders as read refers to the Plaintiff seeking orders to restrain herself and where it should refer to the Defendant in the logical sense, it refers to the Plaintiff. I will therefore set aside those orders for this reason in term 2 and 3 as they are incorrect and replace the wording of the injunctive orders accordingly.

Whether the proceedings should be dismissed for disclosing no reasonable cause of action and for being an abuse of process?

28.	Ms Nugi of the Applicant states that the Plaintiff’s pleadings in her statement contains so many paragraphs that it is like she is stating matters of evidence in her Statement of Claim rather than a succinct statement of facts. Ms Nugi, therefore, submits that the Defendant is unable to file a Defence as the pleadings are convoluted and are confusing and therefore are an embarrassment under the Rules of Court.

29.	Ms Nugi submits that the pleadings do not disclose a cause of action as pursuant to section 65 of the Wills, Probate and Administration Act 1966, the Plaintiff’s claim does not fall under the grounds for the removal of the appointed Administrator of a deceased estate. 

30.	Ms Kimbu however states that under Order 19 of the National Court Rules, the Plaintiff is correctly before the Court challenging the grant of Letters of Administration over the Estate of the Late Mr Samai to the Defendant and seeking orders as to revocation of the Letters of Administration granted to the Defendant. Division 7 of Order 19 of the National Court Rules deals with the revocation of grants of Letters of Administration.

31.	Ms. Kimbu, therefore, submits that this is not a clear case where the Court should dismiss for failure to disclose a cause of action as the Plaintiff should not be driven off the judgement seat and that the matter should proceed on to trial proper for determination on the issues.

32.	Having found in the first leg of Ms Nugi’s application that there is an arguable case by the Plaintiff, I retain this position that this is a matter that should not be dismissed in an interlocutory manner, and I will therefore refuse the application by the Defendant for dismissal of the matter.

Mediation

33.	How then should parties progress this matter to arrive at a determination? I take due notice that the Court had made Orders on 30 December 2021 granting injunctive orders and also imploring parties to have direct negotiations as to resolving the matter between themselves and or come prepared for the matter to be resolved through ADR.

34.	Matters involving family disputes involving property and custody of children etc to my mind are best resolved through mediation. Where matters concerning family and the law, most times, Court Orders don’t fully resolve all matters as between the relationship of parties, those are matters where the Court’s hands are harsh and firm on the law, parties are able to deal with their emotions and achieve a better outcome in a win/win situation in a mediation rather than a winner and loser outcome in a Court of law.

35.	I am firmly of the view that the parties in these proceedings should be directed by the Court to go for Court annexed mediation under the ADR Rules before a Certified Mediator and if that process does not fully resolve all issues, the matter shall proceed to trial before the Court. Even though mediation was suggested by the Court as it is not a compulsory process under the Rules, pursuant to Order 12 Rule 1 of the National Court Rules and Rule 5(2) of the ADR Rules, I will order that this matter shall proceed to mediation under the ADR Rules and if there is no complete resolution, the matter shall proceed on to trial.

36.	The following are therefore the Orders of the Court:

i)	The Defendants application filed on 11 May 2022 is refused.

ii)	Term 2 of the Court Orders of 30 December 2021 is varied to read:

a)	Both the Plaintiff and the Defendant and their servants and agents are restrained from harassing, intimidating, threatening and or interfering with each other until the resolution of all issues in this matter and OS 260 of 2021.

b)	The administration of the Estate of the Late Mr Maso Samai is stayed pending the outcome of these proceedings together with OS 260 of 2021.

i)	This matter shall proceed on to mediation under Rule 5(2) of the ADR Rules to be mediated by a Certified Mediator. In the event that mediation does not resolve all issues, these matters shall return to Court to proceed to trial.

ii)	The parties shall return to Court on 17 June 2022 with agreed Mediation Orders under the ADR Rules as to an agreed mediator and terms of the mediation for endorsement by the Court and such mediation shall be finalised by or before 1 August 2022 and or such time as is required for mediation to be completed.

iii)	Each party shall bear their own costs of this application.

iv)	Time is abridged to the date of these orders take effect forthwith.

Orders accordingly.
________________________________________________________________
PANG Legal Services:  Lawyers for the Plaintiff
Kimbu & Associates:  Lawyers for the Defendant