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Palie v The Chairman, Mt Diamond Adventist School Board of Governors [2024] PGNC 209; N10874 (5 July 2024)

N10874

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 28 OF 2024

BETWEEN
ALEX PALIE on behalf of himself and his two infant sons Arega Yemo Palie and Kiluweilze Palie
Plaintiff

AND
THE CHAIRMAN, Mt Diamond Adventist School Board of Governors
First Defendant

AND
THE PRINCIPAL, Mt Diamond Adventist Secondary School
Second Defendant

AND
SEGAL POTANG, Education Director of Central Papua Conference of Seventh Day Church
Third Defendant

AND

CENTRAL PAPUA CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH
Fourth Defendant

AND
THE CHAIRMAN, Central Provincial Education Board
Fifth Defendant

AND
CENTRAL EDUCATION BOARD
Sixth Defendant

AND
TEACHING SERVICE COMMISSION
Seventh Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

Waigani: Makail, J
2024: 3^rd & 5^th July

PRACTICE & PROCEDURE – Motion to dismiss proceeding – Disclosing no reasonable cause of action – Frivolous or vexatious – Abuse of process – National Court Rules – Order 12, rule 40(1)

PRACTICE & PROCEDURE – Deed of release – Parties signed deed of release – Deed of release bar to further proceedings – Proceeding dismissed

PRACTICE & PROCEDURE – LITIGANTS – Vexatious litigant –Commencement of multiple proceedings – Same dispute of employment and accommodation against the defendants – Litigating same dispute over a period of ten years in multiple proceedings – Conduct of the plaintiff – Harassment, distressful, annoying, troublesome, and disturbing to the defendants – Plaintiff declared vexatious litigant

Counsel:
Plaintiff in person
Mr P H Pato, for First to Fourth Defendants
No appearances, for Fifth to Sixth Defendants
Mr O Gilbert, for Seventh Defendant
Ms E Wungin, for Eight Defendant

RULING

5^th July 2024

1. MAKAIL, J: This is a ruling on the 1^st to 4^th defendants’ notice of motion filed 24^th May 2024 seeking dismissal of the proceeding pursuant to Order 12, rule 40(1) of the National Court Rules for:

(a) disclosing no reasonable cause of action.
(b) being frivolous or vexatious.
(c) being an abuse of process.

2. According to the originating summons filed by the plaintiff on 21^st February 2024, he seeks the following orders:

“1. A declaration that the Plaintiff’s consecutive displacement by the Fourth and the Sixth Defendants for thirteen times with no disciplinary reasons is unlawful and therefore is (sic) no effect.

2. An Order that the Fifth and the Sixth Defendants appoint the Plaintiff at Mt Diamond Adventist Secondary School on position no. 10901583884 or any other borrowed position pursuant to section 36(1)(g)(i) of the Education Act 1983 and sections 35, 37 and 71 of the Teaching Service Act, 1988.
   
3. A declaration that the Fourth Defendant’s notice to the Plaintiff on 22.11.22 to not provide accommodation for the Plaintiff and his two infant sons is unlawful and is of no effect pursuant to the Court Orders of 24 December, 2014 and 6 March, 2015 (OS 886 of 2014) and the Plaintiff’s recommencement of teaching and ministering at Mt Diamond Adventist Secondary School on 16.03.23 on position no.10901583884, which is still currently valid.
   
4. Any other order the court deems fit.
   
5. Costs to be borne by the defendants.”
   

3. From my reading of the plaintiff’s affidavit filed 21^st February 2024, affidavit of Pastor George Paki filed 19^th April 2024, submissions of the plaintiff and having heard the plaintiff and counsel for the 1^st to 4^th defendants, it is abundantly clear that the plaintiff and the defendants had been litigating disputes going as far back as 2014 where the plaintiff sued the defendants for failure to provide accommodation to while he was teaching at the Mt Diamond Adventist Secondary School.

4. On 24^th December 2014 in proceeding OS No 866 of 2014, the National Court granted an interim order for the Central Papua Conference of Seventh Day Adventist Church and Papua New Guinea Union Mission of the Seventh Day Adventist Church to provide accommodation to the plaintiff and further, they and the Teachers Service Commission and OIC Education Salary Section restore the plaintiff on the payroll. Subsequently, on 6^th March 2015 the National Court ordered that:

“1. The substantive matter is resolved in the Plaintiff’s favour.

2. Plaintiff will be at liberty to file fresh proceeding against the persons who he claims interfered with his family and employment.”
   

5. The plaintiff does not explain why the proceeding was resolved in his favour, nor is there a transcript of the National Court hearing to enlighten this Court as to why the proceeding was concluded in that manner. However, according to the plaintiff, he filed two further proceeding WS No 1180 of 2020 and OS No 20 of 2020. These proceedings were related to the plaintiff’s employment at Mt Diamond Adventist Secondary School as a minister and teacher. By virtue of his employment, he claims for accommodation. He asserts that he litigated these matters because his wife had been taken away from him and was harboured by the staff members of the 4^th defendant at Mt Diamond and PAU campuses.

6. His latest displacement from Mt Diamond school is the thirteenth time. The defendants had been colluding and hiding his wife from him. He does not have accommodation at the school campus at Mt Diamond and is living off campus with relatives and going to school to teach and minister to the students.

7. Meanwhile, on 4^th November 2022 the plaintiff and the Central Papua Conference of the Seventh-Day Adventist Church signed a deed of release. The deed of release included sixteen named persons and that the plaintiff is to receive a sum of K150,000.00 in complete settlement of the actions. The plaintiff confirmed that he received this sum of money.

8. The 1^st to 4^th defendants stood on the deed of release and submitted that the plaintiff is estopped from bringing further proceedings including the within proceeding. The deed of release operates as a bar to this proceeding. Consequently, the proceeding is an abuse of process. Also, it is frivolous or vexatious because the same issues had been litigated in the earlier proceedings and have been settled between the parties by way of a deed of release. Furthermore, no reasonable cause of action is disclosed because there is nothing in the memorandum of understanding between the National Department of Education, Teachers Service Commission and PNG Union Mission of SDA Church dated 18^th May 2006 that allocation of a teacher’s house for accommodation is a condition of employment and automatic. Given this, it is at the discretion of the school.

9. The Court upholds the 1^st to 4^th defendant’s submissions. It is abundantly clear from the deed of release that it is the same defendants the plaintiff has sued in this proceeding. Conversely, it is the same defendants that he had released from “all such actions, suits, claims, costs, and demands including but not limited to a claim made by any person claiming to be the next of friend of the Releasor (plaintiff) .............and the Releasor DOES HEREBY CONVENANT TO INDEMNIFY and to keep any other persons, from or indemnified the Releasee against all actions, suits, claims, costs, and demands by any other person, firm or corporation whatsoever and however and howsoever arising in respect of the losses suffered by him/her.”

10. By law, the deed of release ends the dispute between the plaintiff and defendants in relation to the employment of the plaintiff as a teacher and minister and accommodation at Mt Diamond Adventist Secondary School. Furthermore, it supersedes the Court orders of 24^th December 2014 and 6^th March 2015 in proceeding OS No 866 of 2014. This means these Court orders have outlived their purpose and the plaintiff cannot rely on them to force the defendants to employ and provide accommodation to him. For this Court to accede to his request and order the defendants to employ and accommodate him at the school campus will not only be in breach of the deed of release but also an abuse of the process of the Court.

11. In the circumstances, while the 5^th to 8^th defendants did not file a motion to dismiss the proceeding, they supported the 1^st to 4^th defendants’ motion, and given the reasons outlined at [10] above, the Court is of the view that it is an abuse of process of the Court for the plaintiff to litigate the same dispute in this proceeding against the defendants.

12. Furthermore, no reasonable cause of action is disclosed because there is nothing in the memorandum of understanding between the National Department of Education, Teachers Service Commission and PNG Union Mission of SDA Church dated 18^th May 2006 that allocation of a teacher’s house for accommodation is a condition of employment and automatic. Given this, it is open to find that allocation of accommodation is at the discretion of the school.

13. For the foregoing reasons, the 1^st to 4^th defendants’ notice of motion is upheld, the proceeding is dismissed for disclosing no reasonable cause of action, being frivolous or vexatious and being an abuse of process of the Court pursuant to Order 12, rule 40(1) of the National Court Rules.

14. As to costs, the general rule is that costs will be awarded to the successful party. It follows that the plaintiff shall pay the defendants’ costs of the proceeding, to be taxed, if not agreed.

15. Finally, as the plaintiff has commenced multiple proceedings in relation to the same dispute of employment and accommodation against the defendants over a period of ten years (2014 to 2024), this Court is satisfied that the plaintiff is a vexatious litigant. A vexatious litigant is a person who repeatedly files legal proceedings and abuses the process of the Court. The proceedings have no merit but are filed because the person overacts that there is merit in the complaint against a defendant. Generally, a vexatious litigant is often unrepresented by legal counsel because he or she is either unable to afford legal costs or unwilling to accept legal advice. Consequently, where a vexatious litigant files multiple proceedings which are held to be without merit, it is considered as a harassment, is distressful, annoying, troublesome, and disturbing to the defendants.

16. In this case, the Court views the conduct of the plaintiff in filing these multiple proceedings as a harassment, is distressful, annoying, troublesome, and disturbing to the defendants. The plaintiff must immediately cease this conduct. For this reason, and to discourage the plaintiff from filing further proceedings in relation to the same dispute so that there is finality to litigation, the Court declares the plaintiff, a vexatious litigant.

17. The final terms of the order of the Court are:

1. The 1^st to 4^th defendants’ notice of motion is upheld.
   
2. The proceeding is dismissed for disclosing no reasonable cause of action, being frivolous or vexatious and being an abuse of process of the Court pursuant to Order 12, rule 40(1) of the National Court Rules.
   
3. The plaintiff is a vexatious litigant.
   
4. The plaintiff shall pay the defendants’ costs of the proceeding, to be taxed, if not agreed.

________________________________________________________________
Parker Legal: Lawyers for First to Fourth Defendants
In-house counsel: Lawyers for Seventh Defendant
Solicitor General: Lawyers for Eight Defendant