N10685
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 6 OF 2022

PAUL WAILAPU
Applicant 

V 

GREG KONJIB
First Defendant

DR SETH FOSSE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2024: 11th, 13th March

PRACTICE AND PROCEDURE – Section 5, Claims By and Against the State Act – whether proceedings are frivolous, vexatious or an abuse of process – National Court Rules, O 12 r 40(1).  

The plaintiff, who spent time in prison after being convicted of the murder of his wife, made an application for enforcement of human rights. He claimed that his former lawyer (the first defendant) was negligent in his handling of a Supreme Court review of his conviction; that he had been unlawfully convicted due to the specialist doctor who gave evidence for the State (the second defendant) deliberately giving false evidence to hide the fact that the deceased had died due to witchcraft; and that the State (the third defendant) was vicariously liable for the breach of human rights committed by the second defendant that had resulted in his unlawful conviction. The State filed a notice of motion seeking summary dismissal of the proceedings, on two grounds: (1) failure to comply with the notice requirements of s 5 of the Claims By and Against the State Act and (2) being frivolous, vexatious and/or an abuse of process. 

Held:

(1)	The plaintiff’s notice to the State of his intention to make a claim gave insufficient details of the occurrence out of which the claim arose and failed to comply with s 5 of the Claims By and Against the State Act. 

(2)	The plaintiff’s case against the second and third defendants was based on the fanciful premise that his deceased wife had been killed by an unnamed witch and not by himself, despite it being proven beyond reasonable doubt at a trial in the National Court that he had assaulted his wife and caused her death. The proceedings were frivolous and vexatious for the purposes of O 12 r 40(1)(b) of the National Court Rules.

(3)	The premise on which the plaintiff’s case was based had been agitated in two previous human rights applications which had been dismissed. It was an abuse of process for the same premise to be agitated again in separate proceedings. The proceedings were an abuse of process for the purposes of O 12 r 40(1)(c) of the National Court Rules.

(4)	The case against the first defendant was based on a separate cause of action. Though there was no motion filed by any party to dismiss the claim against the first defendant, there was no reasonable cause of action disclosed in the statement of claim. The case against the first defendant was dismissed on the own motion of the court.

(5)	The entire proceedings were dismissed. 

Cases Cited

Toap v The State (2004) N2766
Toap v The State [2004] 2 PNGLR 200
Wailapu v The State (2021) SC2170
Wailapu v Wurr (2020) N8438

Counsel

P Wailapu, the Plaintiff, in person
A Kajoka, for the Third Defendant

13th March 2024

1.     CANNINGS J: The plaintiff, Paul Wailapu, spent a number of years in prison after being convicted in 2016 of the murder of his wife. He has recently been released on parole. 

2.     On 30 March 2022, he filed an application for enforcement of human rights against three defendants:

•	his former lawyer Greg Konjib  (the first defendant), who the plaintiff claims was negligent in his handling of a Supreme Court review of his conviction;
•	the specialist doctor, Dr Seth Fosse, (the second defendant) who gave evidence for the State in his criminal trial, who the plaintiff claims gave  deliberately false evidence to hide the fact that the deceased had died due to witchcraft; 
•	the State (the third defendant), which the plaintiff claims is vicariously liable for the breach of human rights committed by its employee, the second defendant. 

3.    The State on 18 December 2023 filed a notice of motion seeking summary dismissal of the proceedings, and that is the motion that is the subject of this ruling.

4.    The State argues that the proceedings should be dismissed, on two grounds:

(1) failure to comply with the notice requirements of s 5 of the Claims By and Against the State Act; and 

(2) being frivolous, vexatious and/or an abuse of process. 

(1)	FAILURE TO COMPLY WITH NOTICE REQUIREMENTS

5.    The plaintiff served a  letter on the Office of Solicitor-General on 6 April 2022. It was headed “NOTICE OF INTENTION TO SUE THE STATE FOR PROFESSIONAL NEGLIGENCE, BREACH OF HUMAN RIGHTS AND MALICIOUS PROSECUTION”. It stated:

Dear Sir,

I am a prisoner intending to sue the State for the above-mentioned subject matter.

Doctor Seth Fosse who is a State employee is alleged to have committed the offence and breached my human rights which resulted in the plaintiff being imprisoned for an offence I did not commit. He admitted failing to conduct a proper forensic test and compiled an uncompleted post-mortem report based on police report and misled the trial judge. His negligent act and omission resulted in the plaintiff being sentenced to prison.

Your acknowledgment and response is highly appreciated. 

6.    The Solicitor-General responded on 12 April 2022 that the plaintiff’s purported notice of intention to make a claim against the State was not in compliance with s 5 of the Claims By and Against the State Act “as it lacks details of the claim you intend to make” and “prejudices the State’s investigation into your claim and hinders our assessment of whether or not your section 5 notice was given within the period of six months as prescribed by law”. 

7.    In my view, the Solicitor-General’s response was reasonable and accurate. The plaintiff’s notice gave no details of the proceedings in which Dr Fosse had allegedly failed to conduct a proper forensic test and compiled an incomplete post-mortem report. The file reference was not specified, the date of Dr Fosse’s alleged acts and omissions are not mentioned. The trial judge referred to by the plaintiff is not named. 

8.    These are all necessary details that would have enabled the State to understand the nature of the proposed claim and to investigate the allegations and, as the Solicitor-General pointed out in his response to the letter, to assess whether the notice was given within six months after the date of the occurrence out of which the claim arose. 

9.    I note that, by virtue of Act No 9 of 2022 the Claims By and Against the State Act, a new s 5A has been inserted. It expressly requires that a s 5 notice contain “full details” of a claim including the date and time and the nature and circumstances of the alleged cause of action. It is not clear whether s 5A had commenced operation before the plaintiff served his notice on 12 April 2022, but I don’t think it matters whether it had commenced. Section 5A is really only stating expressly what s 5 has always required: a person must give sufficient details of the occurrence out of which the claim arises to put the State on notice and appreciate what the claim is about. The plaintiff’s notice falls short of that requirement. He has not complied with s 5 and for that reason alone, these proceedings must be dismissed.

(2)	BEING FRIVOLOUS, VEXATIOUS AND/OR AN ABUSE OF PROCESS

10.    The grounds of frivolity, vexatiousness and abuse of process are different grounds on which a proceeding can be dismissed under O 12 r 40(1) of the National Court Rules (Toap v The State (2004) N2766, Toap v The State [2004] 2 PNGLR 200). 

11.    A proceeding is frivolous if the plaintiff’s claim is so obviously untenable that it cannot possibly succeed or the plaintiff would be bound to fail if the matter went to trial.

12.    Proceedings are vexatious where the case amounts to harassment of the defendant  or the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed.

13.    If there is a multiplicity of proceedings involving the same grievance, where the plaintiff is having a second bite at the cherry, that is one example of an abuse of process. 

14.    I uphold the submission of Ms Kajoka for the State that these proceedings are frivolous and vexatious and an abuse of process for the following reasons:

•	The plaintiff’s case against the second and third defendants is based on the fanciful premise that his deceased wife was killed by an unnamed witch,  not by himself, despite it being proven beyond reasonable doubt at his trial in the National Court that he assaulted his wife and caused her death. The plaintiff’s case is bound to fail if it were allowed to go to trial. It is a frivolous case. A waste of time.

•	The State would be put to unnecessary time and expense in defending this case, which cannot possibly succeed. It is a vexatious proceeding.

•	The premise on which the plaintiff’s case is based has been agitated in two previous human rights applications, both of which were dismissed: HRA 70 of 2017, Wailapu v Fosse and HRA 171 of 2019, Wailapu v Wurr (2020) N8438. It is an abuse of process for the same premise to be agitated again in separate proceedings. The plaintiff is having a second, or third, bite of the cherry. This is unacceptable and an abuse of process. 

15.    On each of the grounds of frivolity, vexatious and abuse of process, the proceedings against the second and third defendants must be dismissed. 

DOES THE CLAIM AGAINST THE FIRST DEFENDANT SURVIVE?

16.    The motion on which I am ruling has been brought only by the third defendant and appears only to seek dismissal of the proceedings against the second and third defendants. What about the proceedings against the first defendant? Should the claim against him survive? 

17.    The claim against the first defendant is particularly vague. There is a general allegation in the statement of claim that the first defendant’s law firm was paid to pursue a review application in the Supreme Court regarding the plaintiff’s conviction by the National Court of the offence of murder and that “they failed to pursue the review application which resulted in the review application being dismissed by the Supreme Court when the plaintiff took the matter in his own hands”. This appears to be a reference to an unsuccessful application for leave for review that was argued by the plaintiff in person and refused by Hartshorn J sitting as a single Judge of the Supreme Court on 2 November 2021 (Wailapu v The State (2021) SC2170). Other than that, there are no particulars. 

18.    The elements of a cause of action in negligence or breach of human rights are not pleaded. I see no point in allowing such a vague and poorly articulated claim to proceed to trial. I will exercise the discretion available to me under O 12 r 40(1)(c) of the National Court Rules to on my own motion dismiss the proceedings against the first defendant for failure of the statement of claim to disclose any reasonable cause of action against the first defendant. 

COSTS

19.    The motion for dismissal of the proceedings has been brought only by the third defendant, the State. The motion has succeeded and the State should have its costs. 

ORDER

1.	The proceedings are entirely dismissed.

2.	The plaintiff shall pay the third defendant’s costs of the proceedings on a party-party basis which shall if not agreed be taxed. 

3.	Other parties shall bear their own costs.

__________________________________________________________________
Solicitor-General: Lawyer for the Third Defendant