N9473

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO 1334 OF 2013

BETWEEN:

PAIM-KUMBIPARA HOLDINGS LIMITED
Plaintiff

V

MOUNTAIN CATERING LIMITED
Defendant

Waigani: Anis J
2021: 15th December
2022:  9th March

NOTICE OF MOTION – application to dismiss the proceeding – Order 12 Rule 1, Order 10 Rule 9A(15)(1)(a) and (2)(d), Order 12 Rule 40(1)(a)(b) or (c), Order 8 Rule 27(1)(a)(b) or (c) of the National Court Rules – National Court Rules, and s. 155(4) – Constitution – preliminary – whether arguments res judicata and issue estoppel had been raised earlier and dismissed therefore whether application should be dismissed – substantive - whether defences res judicata and issue estoppel should be sustained – principle finality of litigation considered – exercise of discretion

Cases Cited:

Papua New Guinean Cases

Jonathan Paraia v. Mountain Catering Ltd (2017) SC1687
Maip v. Moge Nambuga Milinb Investment Ltd (2020) SC1908
Niugini Building Supplies Ltd v. National Housing Estate Ltd (2020) SC1985
Sunset Rentals Ltd v. Pacific View Apartments Ltd (2020) SC1994
Gawan Kuyan v. Andrew Salle; Andrew Sallel v. Gawan Kuyan (2008) N3376
Kots Investment Ltd (trading as Kots Catering) v. Toa (2020) N8654
Telikom PNG Ltd v. ICCC (2007) SC3144
National Capital District Interim Comm v. Bogibada Holdings Pty Ltd [1987] PNGLR 135
Motor Vehicles Insurance Trust (PNG) Ltd v. Yama Security Services Ltd (2009) SC1004
United Trading Pty Ltd v. David Sode and Ors (1999) N1925
Beecraft No. 20 Ltd v. Minister for Lands (2001) N2125
Lewin v. Westpac Bank PNG Ltd (2020) N8318

Overseas Cases

Bhanu Kumar Jain vs Archana Kumar & Anor [AIR 2005 S 626]
Thoday vs. Thoday [1964] 1 All. ER 341

Counsel:

Mr. J. Haiara, for the Plaintiff
Mr. C. Joseph, for the Defendant

RULING

9th March, 2022

1.	ANIS J:	I heard an application (NoM) filed by the defendant to dismiss the proceeding, on 15 December 2021.  The application was contested and after hearing, I reserved my ruling to a date to be advised.

2.	This is my ruling.  

BACKGROUND

3.	The proceeding concerns a business arrangement between the plaintiff and the defendant (also known as IPI Catering Ltd) that had gone bad.  The plaintiff is owned by one Jonathan Paraia (Mr Paraia).  Mr Paraia owns about 99% of shares in the plaintiff.  The parties had a business agreement before 2013 going back several years whereby the defendant would supply raw material for baking to the plaintiff on credit.  The plaintiff operated a bakery business, and it would use the purchased raw baking material to bake and sell its bakery produce back to the defendant again on credit terms.  The plaintiff’s bakery business was situated in Paiam in Porgera, Enga Province.

4.	In 2012, the plaintiff and Mr Paraia fell into arears from the said arrangement.  The defendant herein filed a Court proceeding against Mr Paraia, at the Lae National Court, that is, WS 771 of 2012, to recover the kina value of the goods that had been advanced on credit to Mr Paraia and his business.  The action was defended.  Mr Paraia and the plaintiff also filed a crossclaim in the matter.  I may use Mr Paraia and the plaintiff’s name interchangeably herein going forward, and I will come to address that later below.  

5.	On 17 April 2013, the National Court in WS 771 of 2012 struck-out Mr Paraia’s defence and crossclaim, and entered judgment in the sum of K1,108,528.01 in favour of the plaintiff (defendant herein).  Mr Paraia appealed the decision to the Supreme Court.  On 30 October 2017, the Supreme Court dismissed Mr Paraia’s appeal and confirmed the National Court’s decision of 17 April 2013.

6.	The plaintiff filed this proceeding on 19 November 2013, that is, about 7 months after judgment was entered against Mr Paraia in WS 771 of 2012.  It should be noted that it was also in 2013 that Mr Paraia had appealed the decision against him to the Supreme Court.  Mr Paraia has recently, on 8 April 2021, filed a new proceeding against the defendant, namely, WS No. 145 of 2021.  In that proceeding, he intends to set aside the National Court’s decision of 17 April 2013 in WS 771 of 2012 based on fraud and misrepresentation. 

NOTICE OF MOTION

7.	In the NoM, the defendant seeks orders to dismiss the proceeding.  It relies on various provisions including Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules (NCR), and s. 155(4) of the Constitution.  

ISSUES

8.	The main issues are as follows, (i), whether the grounds raised for the dismissal are res judicata, and if so, whether the NoM should be dismissed, (ii), subject to the Court’s findings on issue (i), whether the proceeding should be dismissed because it lacks merit, is frivolous and vexatious or whether it is an abuse process, based on the principles of res judicata and issue estoppel  

COMPETENCE

9.	It is not disputed that the NoM is similar to an earlier one that was filed and moved by the defendant in 2015.   This is confirmed by the parties and in particular, I refer to the affidavit of Mr Haiara filed one 14 December 2021.  Evidence adduced shows that the earlier motion was dismissed by Sawong J on 25 August 2015.  His Honour gave an ex-tempore decision and indicated that a full decision would be published at a later date.  The parties did not refer me to that decision, and I cannot find any evidence to say whether a full decision was ever published after that.  I will therefore proceed herein on that basis.

10.	I have considered the submissions and evidence adduced by the parties in regard to the argument, that is, whether the NoM is the same or similar to the earlier one.  I note that the defendant appears to be raising similar or identical grounds, that is, res judicata and issue estoppel.  The defendant denies the claim and states that there is nothing stopping it from raising the argument given that the earlier motion was an interlocutory decision.  Secondly, it claims that there were certain facts or events that have occurred after the earlier motion was made thus it was at liberty to raise similar grounds.

11.	Having considered the arguments, I am faced with various hurdles.  The first is this.  There is no written decision and or transcript of proceeding, that is or are adduced in evidence, in relation to Sawong J’s decision of 25 August 2015, in regard to the dismissed earlier motion of the defendant.  Without the decision and or the transcript of the proceeding containing the ex-tempore decision of the Court, I am unable to fully appreciate, consider and make a determination on the issue, that is, of whether the grounds res judicata and issue estoppel had been considered and determined by the Court, regardless of the submissions, agreements or positions taken on point by the parties.  It then raises this question.  Which party herein has the burden to furnish evidence or to be more precise, the transcript of the proceeding of 25 August 2015?  To me, the challenge or argument was raised by the plaintiff.  The plaintiff, in my view, has the burden to provide to the Court, a transcript of the proceeding particularly in a situation where there is no written decision of the Court on a contested matter.  It is not sufficient, in my view, for one to simply make an argument merely based on depositions such as affidavits or submissions that had been used in the earlier motion.  I must see what arguments were actually raised at the hearing, what argument were abandoned, considerations by the Court and finally the Court’s reasonings or findings in dismissing the earlier motion, and I cannot do that without benefit of perusing of the transcript of the proceeding.  And these, in my view, would have been relevant to consider the issues of res judicata or issue estoppel.  It is not the role of the Court to second guess or speculate.  But it is the role of the parties and their lawyers to fully assist the Court with such records which may be easily obtained, and which is crucial to the issue at hand.

12.	I therefore dismiss the plaintiff’s claim that the NoM is baseless because the issues had been raised, that is, in regard to the principles, res judicata and issue estoppel.  I find the plaintiff’s argument lacking or untenable for this burden of proof on this issue to shift to the defendant to disprove in response.  I would illustrate or likened this scenario to an appeal.  A party that is appealing has pleaded all the grounds of appeal but fails to attach in evidence, for consideration by the appeal court, the actual decision the subject of the appeal, together with or a copy of the transcript of the proceeding.  No matter what both parties may present, the appeal Court will not be in any reasonable or better position to independently (i.e., regardless of the submissions or positions taken by each or both sides) verify and proceed to consider the merits of the appeal grounds.

13.	In this case, the plaintiff has fallen short of making the preliminary argument.  The argument shall therefore fail.

MERIT

14.	Having reached the above conclusion, I go on to consider the merit of the NoM.

15.	Do I have jurisdiction to hear the matter based on the argument res judicata?  And secondly, is the plaintiff estopped from raising the issue after it has conceded to it or the relevant facts, at an earlier proceeding?  Res judicata debars the Court’s jurisdiction to hear and determine a matter if it has reached a finality, and issue estoppel is invoked against a party where he or she is stopped or prevented from raising the same issue which had been decided against him or her, in a latter proceeding.  See case: Bhanu Kumar Jain vs Archana Kumar & Anr [AIR 2005 S 626] and Thoday vs. Thoday [1964] 1 All. ER 341.  

16.	I will address the first point.  The former proceeding which we are concerned with is WS 771 of 2012.  The change of the defendant’s name (i.e., from Mountain Catering Ltd to IPI Catering Limited as it is now known as) is not disputed.  The issues, however, for our purpose, are (i), the name of the plaintiff herein compared to the name of its owner Mr Paraia who was the defendant in WS 771 of 2012 and (ii), the nature of the claims in both proceedings.

17.	It is not disputed that Mr Paraia owns the plaintiff company in that he holds about 99% of shares in the company.  It is also not disputed that Mr Paraia, and not his company which is the plaintiff herein, was named as the defendant in proceeding WS 771 of 2012.  Evidence adduced also confirms that Mr Paraia filed a defence and crossclaim in WS 771 of 2012.  At paragraph 1 of his crossclaim, he pleaded this, The Defendant/Cross-Claimant operates a bakery business at Porgera in Enga Province known as Paiam Kumbipara Holdings Limited t/a Paiam Bakery.  He also alleged breaches of these various agreements, namely, (i), the Warehouse and Management Agreement between Ipili Porgera Investment Ltd and Crocodile Catering PNG Pty Ltd, (ii), Joint Venture Agreement between Operating Company and Paiam Kumbipara Holdings Pty Ltd, (iii), Management Agreement between Mountain Catering Limited and Paiam Kumbipara Holdings Ltd, and (iv), Agreement for Settlement dated 24 January 2007 (4 related agreements).  He claimed, amongst others, that the plaintiff owed him a total of K6,386,575.94.

18.	On 17 April 2013, His Honour Gabi J, however, struck-out Mr Paraia’s defence and crossclaim of K6,386,575.94, and entered judgment in the sum of K1,108,528.01 against Mr Paraia in favour of the plaintiff (the defendant herein).  On 17 May 2013, Mr Paraia appealed against Gabi J’s decision to the Supreme Court in SCA 49 of 2013.  Mr Paraia also applied to stay WS 771 of 2012 pending his appeal.  Makail J, sitting as a single Supreme Court judge, refused his stay application in his decision dated 11 August 2014.  His Honour’s decision is adduced in evidence.  Mr Paraia did raise the issue of whether he was the correct party being sued before Makail J.  His Honour, however, dismissed the argument on various grounds including the reason that the argument was not raised before the trial Court.  Also, and when addressing the issue, His Honour stated:

Thus, it seems to me that both parties know who they are and despite the use of the name Paiam Kumbipara Holdings, the person who entered into the contract is Mr Paraia.  He has been named as Paiam Kumbipara Holdings and in my view the argument as to the uncertainty in the name of the appellant in the Court below and who is to settle the judgment debt is more or less an academic one.

19.	The substantive appeal was later dismissed by the Supreme Court on 30 October 2017.  The decision is reported as Jonathan Paraia v. Mountain Catering Ltd (2017) SC 1687.  It should be noted that at the said substantive appeal hearing, Mr Paraia sought leave and abandoned all his appeal grounds.  Mr Paraia also unsuccessfully raised a new ground of appeal which was also dismissed by the Supreme Court.  What is also, in my view, relevant and should be highlighted here, is what the Supreme Court said at paragraph 4 of its judgment, which is this, In submissions Mr Jurth conceded on behalf of the appellant (Mr Paraia) that, other than this technical issue, there was no flaw in the primary judgment.  

CONSIDERATION

20.	I have considered the arguments of the parties on the 2 legal issues.  In my view, the answer to the issues, based on the uncontested facts and background, appears straight forward.

21.	There is no doubt in my mind that the background or dispute as pleaded in the present proceeding and in WS 771 of 2012, are the same.  We are talking about the same business arrangement between the plaintiff, Mr Paraia and his company which is the plaintiff, and the defendant.  The main business arrangement was for Mr Paraia and his company to supply bakery products to the defendant.  That relationship turned sour when Mr Paraia and his company began failing to pay the defendant its outstanding invoices in a timely manner or at all.  The defendant then successfully commenced WS 771 of 2012 and obtained judgment in the sum of K1,108,528.01 against Mr Paraia.  Mr Paraia went as far as the Supreme Court but was unsuccessful.  

22.	He has now commenced the present proceeding.  This time, he is suing the defendant (plaintiff in WS 771 of 2012) using or under his company’s name.  I have perused his crossclaim which had been filed in WS 771 of 2012.  In my view, Mr Paraia’s pleading in the crossclaim is very similar to the pleadings herein.  This include his pleadings in relation to the 4 related agreements.  That said, the noticeable differences I observe in the 2 proceedings are, (i), that Mr Paraia, in the present proceeding, is suing using the name of his company, (ii), the plaintiff has included additional claims in the present proceeding, but which primarily arose from the same facts or factual background as those that had been pleaded and disposed in WS771 of 2012.

23.	My first finding is this, that the present proceeding arose from the same factual background and events that had been alleged in WS 771 of 2012.  With that, I must say that had all the names of the parties in WS 771 of 2012 and this present proceeding been the same, my said finding would have decided this case in favour of the defendant without the need for further considerations.  However, in this case, the plaintiff’s main argument in response, as I understand it, is that Mr Paraia was not the party that had entered into the business arrangement or the 4 related contracts with the defendant; that it was the plaintiff who had contracted with defendant; that in cases where Mr Paraia had acted or participated in, he did so only for or on behalf of the plaintiff.  The plaintiff essentially argues that it is a separate legal entity under s. 16 of the Companies Act 1997 (the Companies Act).  

24.	Section 16 of the Companies Act states, and I quote, A company is a legal entity in its own right separate from its shareholders and continues in existence until it is removed from the register.  I must say, with qualification, that I uphold the plaintiff’s argument in that regard, that is, of it being a separate legal entity from Mr Paraia.  I would remark that Mr Paraia may have signed the contracts or entered into contractual arrangements with the defendant, but he may have done so for or on behalf of the plaintiff.  Similarly, Mr Paraia, despite being the majority shareholder in the plaintiff, is separate from the plaintiff company; and that the plaintiff is a legal person with its own rights and interests.  See case:  Maip v. Moge Nambuga Milinb Investment Ltd (2020) SC1908, Niugini Building Supplies Ltd v. National Housing Estate Ltd (2020) SC1985, Sunset Rentals Ltd v. Pacific View Apartments Ltd (2020) SC 1994 and Gawan Kuyan v. Andrew Salle; Andrew Sallel v. Gawan Kuyan (2008) N3376.

25.	However, there are dilemmas or obstacles that I have or am faced with despite the legal positions of Mr Paraia and the plaintiff company.  I will address some of them.  Firstly, both proceedings (i.e., the present proceeding and WS 771 of 2012) arose from the same background and concern that same dispute, that is, regarding the contractual arrangements, the purported breaches, and the outstanding invoices as claimed by the persons or parties, namely Mr Paraia, the plaintiff, and the defendant.  Mr Paraia was fully involved in WS 771 of 2012.  Secondly, what is pleaded herein as the plaintiff’s cause of action had been pleaded by Mr Paraia in his crossclaim in WS 771 of 2012.  The crossclaim had been challenged, amongst others, filed out of time.  The challenge was upheld, and the crossclaim (including the defence) was dismissed by Gabi J.  In his written decision, His Honour did address the crossclaim ‘in protest’ as he puts it.  And despite acknowledging that there existed a crossclaim, His Honour found that Mr Paraia did not adduce any material evidence to support the said pleadings.  His Honour found that Mr Paraia only made mere vague accusations against the plaintiff (the defendant herein).  Further, His Honour found credible or sufficient evidence on the part of the plaintiff (defendant herein) in regard to its claim for its outstanding debts.  These considerations had formed part of the decision of the Court when it struck out the defence and crossclaim and entered default judgment in favour of the plaintiff (defendant herein) in WS 771 of 2012.  

26.	The other dilemma is as stated above in my judgment where Mr Paraia had claimed in his pleading in WS 771 of 2012 that he operated the plaintiff and was trading as Paiam Bakery.  To me, these raises questions such as these.  Did the plaintiff instruct Mr Paraia to act on its behalf for Mr Paraia to make such pleading in his crossclaim?  Or did Mr Paraia breach or ignore provisions under the Companies Act and solely operated the plaintiff company under his own terms where he made decisions on the plaintiff’s behalf on an ad hoc basis?  If no permission was obtained from the plaintiff, does that give rise to a possible cause of action by the plaintiff against Mr Paraia?  I must say that I doubt whether plaintiff would take any actions against Mr Paraia.  There is, in my view, overwhelming evidence that have been adduced by both parties as well based on the undisputed background of WS 771 of 2012, that Mr Paraia was running the plaintiff company, or should I say the plaintiff and Mr Paraia were operating in a rather unorthodox or peculiar manner, against company norms, laws, practices or requirements that are or would normally be observed under the Companies Act.  Mr Paraia himself, as deposed to in his various affidavits filed in the present and previous proceedings, expressly states that he owns and runs or operates his company which is the plaintiff.

27.	These dilemmas drew me to the principle of finality of litigation, and I therefore ask myself these.  What should or ought to have been the correct process for addressing the issue of correct party given the Court’s finding that the present proceeding arose from facts that were the same as those that had been relied upon in WS 771 of 2012, and also given my view that Mr Paraia was operating the plaintiff company in a peculiar manner?  The correct process, as has been the established practice, should have been to address the issue (i.e., want of correct party) at the time when WS 771 of 2012 was still pending.  There has to be finality in litigation, and issues that are raised on or in relation to a dispute must or ought to be raised together and be addressed in the same proceeding rather than on a piece meal basis.  See cases:  Kots Investment Ltd (trading as Kots Catering) v. Toa (2020) N8654, Telikom PNG Ltd v. ICCC (2007) SC3144, National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Motor Vehicles Insurance Trust (PNG) Ltd v. Yama Security Services Ltd (2009) SC1004.  That did not, however, occur and now we have this proceeding, and the question of correct party has resurfaced.  But interestingly or should I say crucially, Mr Paraia had named his company (the plaintiff herein) at paragraph 1 of his crossclaim in WS 771 of 2012.  And the plaintiff (defendant herein), in response, had denied the existence of Mr Paraia’s company (plaintiff herein) in its Rely and had pleaded that the plaintiff did not exist or that it was not registered at the material time.  

28.	All these, to me, shows that either Mr Paraia and his company (which is the plaintiff herein) knew or ought to have known of the naming issues but had waived their rights to raise or address that in the National Court in WS 771 of 2012, or that Mr Paraia and his company did not see that as an issue; that they knew that the plaintiff (defendant herein) was suing the correct party or persons.  The later position was also regarded by Makail J as I have quoted above.  And I note that His Honour’s decision has not been appealed or reviewed.  However, that is now irrelevant given that the substantive appeal, that is, SCA 49 of 2015, has been determined.  I also take into account part of what was said by the Supreme Court at the substantive appeal hearing.  Mr Paraia, through his counsel, informed the Supreme Court that he had decided to abandon all his 7 grounds of appeal.  Mr Paraia also acknowledged that, except for a procedural issue re service of the originating process (which he was seeking leave to include as a ground of appeal), that there were no errors or flaws committed by the trial Judge Gabi J.  The Supreme Court reflected that at paragraph 4 of its decision as quoted above earlier.

29.	Therefore, given my second finding on issues that surrounds correct party or parties and of the appropriate time to address that, I therefore uphold the defendant’s submissions in general.  Mr Paraia had, at the material time, claimed to also operate the plaintiff in the crossclaim in WS 771 of 2012.  If the plaintiff, as a separate legal entity disputed that, it should have raised that in the said proceeding.  That did not occur.  Mr Paraia is also the majority shareholder of the plaintiff and evidence adduced shows that he was and still is unilaterally running the affairs of the plaintiff himself.  The plaintiff, as evidence shows, knew or ought to have known of and had also participated in WS 771 of 2012.  Such evidence and conducts cannot simply be ignored by this Court.  Also, cannot be ignored was the finding by Makail J that the parties knew who they were dealing with in WS 771 of 2012.  Therefore, it is wrong, in my view, for the plaintiff to now in this proceeding deny its involvement or change its position from that which it and Mr Paraia had portrayed in WS 771 of 2012, the position which had been recognized by the parties therein as well as by the National and Supreme Courts, and to now make or treat this claim as new or fresh.  I find this claim to be caught by the principles, res judicata and issue estoppel.

30.	Even if I were to refuse the application and allow this proceeding to continue to a full hearing, the trial Court would obviously consider issues or matters that would impinge upon the final decision of the Court in WS 771 of 2012.  This Court would have no jurisdiction to do that, thus the defence res judicata shall be sustained.  The plaintiff is also estopped from raising matters, including the 4 related contracts, which had been pleaded in WS 771 of 2012.  I should also make specific reference to the fact that Mr Paraia, who had claimed to operate the plaintiff at paragraph 1 of this crossclaim in WS 771 of 2012, had, at the final hearing in SCA 49 of 2015, informed the Court that the decision of Gabi J was not flawed.  This means that the defendant herein, who was the plaintiff in WS 771 of 2012, had adduced evidence to the satisfaction of a Court of competent jurisdiction that Mr Paraia and his company or business owed it money to the tune of K1,108,528.01.  It means that the Court of competent jurisdiction had rejected Mr Paraia and his company’s defence and crossclaim.  It also means that the Court in WS 771 of 2012, by its decision, did not regard the plaintiff company herein as a legitimate or registered entity at the material time.  Whether that was rightfully decided or otherwise, that concluded the matter and that is that.  

31.	There is therefore no real distinctions between the 2 cases for the reasons I have stated above in my decision.  The claim arose from the same facts, the parties are no different to each other despite the application of s. 16 of the Companies Act.  The conduct of Mr Paraia in not observing the legal propriety of his company including his manner of pleading in WS 771 of 2012, proves, in my view and to my satisfaction, that we are talking about the same claim; that all the parties knew what and who they were dealing with at all material times.  This proceeding therefore cannot be allowed to continue, and I will therefore dismiss it.

ABUSE

32.	Apart from my above findings, I also find that this proceeding may be regarded as a blatant abuse of the Court process for the reasons stated above in my judgment, and the proceeding will also be dismissed for this reason. 

33.	There is also a further reason I wish to add here. Proceeding WS 771 of 2012 is concluded.  In the pleadings therein, Mr Paraia denied that he was trading in the manner as pleaded by the plaintiff (defendant herein) or in the manner in which he was named in the said proceeding.  He instead pleaded that he operated the plaintiff and traded as Paiam Bakery.  The plaintiff, the defendant herein, denied that and pleaded that the plaintiff was not registered as a legal entity.  The Court, having these material facts before it, ruled in favour of the plaintiff (the defendant herein).  And the Court ordered Mr Paraia, not the plaintiff, to pay the judgment sum.

34.	The concluded ruling and facts at the material time by the Court in WS 771 of 2012 was, amongst others, on the premise that the plaintiff did not exist at the material time.

35.	With these known concluded facts and ruling of the Court, the plaintiff herein is now attempting to proceed on a clean slate, and with a view, based on its pleading, that it existed at the material time.  This again, is an abuse of the Court process.  Secondly, the status quo of this whole matter is that the business or bakery deal, was between Mr Paraia and the defendant, and the plaintiff did not exist or was not registered at that time.  These facts were sealed with the conclusion of WS 771 of 2012.  As such and therefore, the plaintiff would have no standing, interest, or business to refer to these facts to make out its claim herein.  To do so as in this case, in my view, is also an abuse of the Court process.

EXERCISE OF DISCRETION

36.	This proceeding shall be dismissed with costs.

COST

37.	Cost is of course a discretionary matter, and so I ask myself this.  How should I exercise my discretion?  I will say this.  I find the actions of the plaintiff and Mr Paraia, or should I say Mr Paraia, to be disingenuous.  Such an action has seen wastage of the Court’s time and resources.  It has also, without basis, caused the defendant to incur costs to defend itself in this matter.  The National Court is a high Court and must be vested or tasked to hear matters of merit or relevance.  It should not be abused by persons or parties such as the plaintiff and Mr Paraia like in this case, who continue to file same or similar proceedings to have a second bite of the cherry, so to speak, or to rehearse issues that have been determined.

38.	With that, this is a case where I consider it appropriate and I will, as a form of punishment, order cost of the proceeding against the plaintiff on a solicitor/client basis which may be taxed if not agreed.  See cases:  United Trading Pty Ltd v. David Sode and Or (1999) N1925, Beecraft No. 20 Ltd v. Minister for Lands (2001) N2125 and Lewin v. Westpac Bank PNG Ltd (2020) N8318.  This is a case where I see it fit to exercise my discretion accordingly or in this manner.

ORDERS OF THE COURT

39.	I make the following orders:

1.	The proceeding is dismissed in its entirety.
2.	The plaintiff shall pay the defendant’s cost on a solicitor/client basis which may be taxed if not agreed.
3.	Time for entry of these orders is abridged to the date and time of settlement of these orders which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Plaintiff
Ashurst PNG: Lawyers for the Defendant