N10087

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 379 OF 2021

BETWEEN:
SIGINIKA SECURITY SERVICE LIMITED
Plaintiff

AND:
DR. JOSEPH APA as the CHIEF EXECUTIVE OFFICER of the EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
First Defendant

AND:
MICHAEL SINGIP as the DIRECTOR, CORPORATE SERVICES of the EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Second Defendant

AND:
EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Goroka: Mugugia, AJ 
2022: 22nd November, 21st December

PRACTICE AND PROCEDURE – Motion for dismissal of proceedings – Grounds - Fraud pleaded in the Originating Summons - Wrong mode of proceedings utilised – Judicial review proceedings ought to have been filed to challenge administrative decision - Non-compliance of Court Orders – Ground of utilisation of wrong mode of proceedings established - Exercise of discretion - Proceedings dismissed. 

Counsels:

No appearance, for the Plaintiff 
Mr G. Gendua, for the First, Second & Third Defendants 
No appearance, for the Fourth Defendant 
 
DECISION

21st December, 2022

1.   MUGUGIA, AJ: An agreement for provision of security services at the Goroka Provincial Hospital was made on 16th October 2018, between the Plaintiff company and the Provincial Health Authority. The Plaintiff rendered the security services. The Third Defendant’s Board then made a decision for the Plaintiff to cease operations. The Plaintiff filed its Originating Summons on 9th December 2021, alleging fraud. It sought declaratory orders.  

2.   The First, Second and Third Defendants applied for dismissal of the proceedings in their Notice of Motion filed on 26th October 2022. The grounds relied on where that, the Plaintiff applied the wrong mode of proceedings, because fraud is alleged in its Originating Summons, the Plaintiff failed to file a judicial review proceeding to challenge the administrative decision of the Eastern Highlands Provincial Health Authority Board, and the Plaintiff failed to comply with Court Orders to file a responding affidavit.

3.  The application was made ex parte on 22nd November 2022 by the First, Second and Third Defendants’ lawyer Mr Gendua of Gendua and Associates Lawyers. The law firm had received a formal brief out letter from the Attorney General to act for the First, Second and Third Defendants. 

4.   Pursuant to Order 4, Rule 46 (b) of the National Court Rules, the Court may hear and dispose of a motion in the absence of any party where the notice of the motion has been duly served on the absent party. I was satisfied that the Plaintiff was duly served with the motion, and its lawyer Mr Amoiha was aware of the motion and the hearing date. He made no appearance at the hearing, so I proceeded to hear the motion in his absence. 

FIRST, SECOND AND THIRD DEFENDANTS’ EVIDENCE AND SUBMISSIONS  

5.   The supporting affidavit is the Affidavit in Support of Gabriel N. Gendua sworn and filed on 26th October 2022. Reference was made to the evidence contained in the Affidavit of Dr. Joseph Apa sworn on 28th June 2022 and filed on 29th June 2022.

6.   Mr Gendua relied on his Extract of Submissions filed on 7th November 2022. On the ground concerning the allegation of fraud and use of the wrong mode of proceedings, Mr Gendua submitted that fraud is alleged in the Originating Summons. Particulars of fraud are pleaded. Order 4, Rule 2 (1) of the National Court Rules allows proceedings to be commenced by way of writ of summons. In the present case, the Plaintiff has applied the wrong mode of proceeding contrary to the Rules of the Court. Hence, the proceeding must be dismissed in its entirety with costs to the Defendants. This is a discretionary matter.  

7.    Mr Gendua relied on Order 12, Rule 1 of the National Court Rules to invoke the Court’s jurisdiction to make the dismissal order sought.   

8.    On the ground that the Plaintiff failed to file a judicial review proceeding to challenge the administrative decision of the Eastern Highlands Provincial Health Authority Board, Mr Gendua submitted that on 10th December 2020, the Eastern Highlands Provincial Health Authority Board passed a resolution in its Meeting held at Kainantu, and appointed Manaka Security Services to provide security to the Eastern Highlands Provincial Health Authority (EHPHA). This effectively terminated any arrangement for the Plaintiff company to provide security services to the EHPHA. The EHPHA’s resolution is an administrative decision. The Plaintiff has not utilised Order 16 of the National Court Rules. The Plaintiff should have filed a judicial review proceeding to challenge the decision. Hence, there is no basis or utility for the Plaintiff to pursue this proceeding. Pursuant to Order 12, Rule 1 of the National Court Rules, the proceeding must be dismissed in its entirety.
    
9.     On the ground that the Plaintiff failed to comply with Court Orders to file a responding affidavit, Mr Gendua submitted that two separate orders were made on 6th September 2022 and 22nd September 2022 for Mr Amoiha to file a responding affidavit which he failed to do so. This failure constitutes a breach of the Court Orders. For this reason, the proceeding must be dismissed in its entirety pursuant to Order 10, Rule 9A(15)(1)(a) and 2(c), and Order 12, Rule 1 of the National Court Rules, with costs to the Defendants.    

ISSUE 

10.    Whether the entire proceedings should be dismissed. 

COURT’S CONSIDERATION 

Ground 1: Fraud alleged - Wrong mode of proceedings utilised 
 
11.     The Plaintiff’s allegation is that the First and Second Defendants’ action in signing a Security Contract on 11th October 2021 but dated 11th October 2019 is illegal and fraudulent. The Plaintiff sought a declaratory order that this action is illegal and fraudulent. Particulars of fraud are pleaded in paragraphs 2(a) to 2(e) of the Plaintiff’s Originating Summons. 

12.      Order 4, Rule 2(1)(b) is in mandatory terms. It reads:

“Proceedings shall be commenced by writ of summons where a claim made by the plaintiff is based on an allegation of fraud.”

13.   I find that the Plaintiff utilised the wrong mode of proceedings. It should have filed a writ of summons to plead fraud. 

Ground 2: Judicial review proceedings ought to have been filed 

14.    I am not persuaded by Mr Gendua’s submissions on this ground. 

15.   It appears from the Originating Summons that the Plaintiff is not seeking a review of the decision-making process involved. I considered the substantive relief in the Plaintiff’s Originating Summons. I am of the view that this is not a case appropriate for an application for judicial review under Order 16 of the National Court Rules. Why I say this is because the Plaintiff is not seeking one of the prerogative orders, quashing order, a mandatory order or a prohibiting order. 

16.   I find that judicial review proceedings is not appropriate. 

Ground 3: Failure to comply with Court Orders 

17.    The Court records show that on 6th September 2022 and 22nd September 2022, the Plaintiff’s Lawyers Javati Lawyers were ordered by the Court to file a responding affidavit to the affidavit filed by Gendua and Associates Lawyers. I find that the Plaintiff’s lawyer failed to comply with the specific orders of the Court. 

18.    The First, Second and Third Defendants sought dismissal pursuant to Order 10, Rule 9A(15)(1)(a) and 2(c), and Order 12, Rule 1 of the National Court Rules. I am of the view that Order 10, Rule 9A(15)(1)(a) and 2(c) are not relevant here because the matter was not going through the listing process for this Order and Rules to apply. The matter had returned to Court on both occasions for the hearing of the Plaintiff’s motion filed on 9th December 2021. Order 12, Rule 1 of the National Court Rules is the relevant Rule. 

CONCLUSION

19.   The ground of utilisation of the wrong mode of proceedings has been established by the First, Second and Third Defendants. In the exercise of my discretion, I shall dismiss the entire proceedings pursuant to Order 12, Rule 1 of the National Court Rules. An order for costs shall be made against the Plaintiff.  
 
COURT’S FORMAL ORDERS

20.   I make the following orders:

1. The entire proceedings is dismissed. 

2. The Plaintiff shall pay the First, Second and Third Defendants’ costs of the proceedings, which are to be taxed if not agreed.
  
3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

Orders accordingly. 
________________________________________________________________
Gendua & Associates Lawyers: Lawyers for the First, Second & Third Defendants