N11136
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 195 OF OF 2024

BETWEEN:
PANGU EDWARD
Plaintiff

AND
KAINANTU DISTRICT DEVELOPMENT AUTHORITY
Defendant

LAE: DOWA J
6 DECEMBER 2024; 20 JANUARY 2025

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action and for frivolity and abuse of process - Order 10 Rule 9A (15) of the National Court Rules-Plaintiff lacks standing-similar proceedings between the parties filed earlier in another court raising the same issues- proceedings are an abuse of the process-proceedings dismissed.

Cases cited
Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007
National Provident Fund v Maladina & Others (2003) N2486
PNG Forest Products v State [1992] PNGLR 84
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
Wabia v BP Petroleum (2019)) N4337
Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310

Counsel:
 M. Karu for the plaintiff
 K. Aisi for the defendant

RULING

1.	DOWA J:   This is a ruling on competing applications of the parties.

2.	The Plaintiff seeks interim restraining orders whilst the Defendant seeks dismissal of proceedings for abuse of the process.

Background Facts

3.	The Plaintiff is the President of Agarabi Rural Local Level Government and is a member of the Kainantu District Development Authority. He deposes Agarabi LLG is host to K92 mine and is one of the key Stakeholders of the K92 mine. The Developer, K92 Mining Ltd, under its Infrastructural Tax Credit Scheme approved a project nominated by Kainantu DDA for the Road Upgrade and sealing from Kongua to Billimoia in Agarabi LLG. The Developer after following procurement process appointed a Contractor. The launching was made and just when the project was about to commence, the Member for Kainantu, Hon. William Hagahuno, put a stop to the project. The Plaintiff deposes the road project is a vital service to the people of Agarabi LLG and the stoppage is not done in the interest of the people. Aggrieved by the decision of the Member, the Plaintiff institutes these proceedings seeking various Declaratory and consequential orders.

The Plaintiff’s application

4.	 Pending the determination of the substantive matters, the Plaintiff seeks by Notice of Motion, the following interim injunctive orders:

1.	Pursuant to Order 12, Rule 1 of the National Court Rules, pending determination of this proceedings, the Defendants be restrained from issuing any stop work notice for the Konkua to Bilimonia road Project or interfere, with road project in any form or manner.

2.	Pursuant to Order 12, Rule 1 of the National Court Rules, pending determination of this proceedings, the Defendant’s agents or servants be restrained from threatening, assaulting, harassing, the Developer, K92 Mine Limited, the contractors, or its servants or agents, and the Plaintiff in this proceeding.

3.	The Defendant pay for the costs of this application.

4.	Any other orders the court deems fit.

5.   The Defendant opposes the application on the grounds that the proceedings are an abuse of the process for the following reasons:

1. The Plaintiff as a member of Kainantu DDA has no standing, and the proceedings are an embarrassment. 

2. A Similar proceeding between the parties on the same issue has been instituted in Waigani National Court first in time.

3. No substantive relief is pleaded in the Originating Summons

Consideration

6.   I will deal with the arguments on the competency of the proceedings first. If the proceedings are found to be incompetent, that will end the matter, and it will not be necessary to deal with the Plaintiff’s application.

7.    The relevant Rules of Court are Order 10, Rule 9A (15), Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules, and they are set out below:

a.	Order 8 Rule 27

		“27. Embarrassment, etc (15/26
		(1) Where a pleading— 
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or 
(c) is otherwise an abuse of the process of the Court, 
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1).”

b.	Order 10 Rule 9A (15) (2)  

“15. SUMMARY DISPOSAL 
(1) The Court may summarily determine a matter: 
a. on application by a party; or 
b. on its own initiative; or 
c. upon referral by the Registrar under (3) below. 
(2) The Court may summarily dispose of a matter in the following situations:
a. for want of prosecution since filing the proceedings or since the last activity on the file; or
) b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or
c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.
d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules. 
e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court. 27. Embarrassment, etc (15/26)

b. Order 12 Rule 40

“Frivolity, etc. (13/5)
(1)	 Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
•	(a) No reasonable cause of action is disclosed; or
•	(b) The proceedings are frivolous or vexatious; or
•	(c) The proceedings are an abuse of the process of the Court,
The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

8. 	The case law on Order 8 Rule 27, Order 10 Rule 9A (15)(2) and Order 12 Rule 40 of the National Court Rules is well settled.  Refer:  PNG Forest Products v State (1992) PNGLR 84–85, Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, Wabia v BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007, National Provident Fund v Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310.

9.	The principles of law settled in the above cases are:
		
a.	A claim may be disclosing no reasonable cause of action if the facts pleaded do not clearly show all necessary facts and legal elements to establish a claim known to law.

b.	A claim may be frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.

c.	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case.
 
d.	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse. 

e.	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even if it proceeds to trial.

Whether the Plaintiff has standing to challenge the decision by Kainantu DDA

10.    The decision to terminate the contracts for the road project was made by Kainantu DDA on 7th July 2024. The Plaintiff is a member of the Kainantu DDA who made the decision. I accept the arguments of the Defendant that it is an embarrassment for the Plaintiff to institute the current proceedings which is against the resolution of the governmental Authority he is a member of. The decision of the Kainantu DDA did not affect the personal interest or proprietary rights of the Plaintiff. He has no standing to challenge the decision of Kainantu DDA. The people or entities immediately affected or likely to be affected by the decision are K92 Mining Ltd and the Contractor, R & Sons Ltd. Although the Plaintiff says he represents the people of Agarabi LLG, there is no resolution by Agarabi LLG appointing the Plaintiff to challenge the decision of the Kainantu DDA. After all, the Plaintiff is a member of the Kainantu DDA, which also represents the interest of the people of Agarabi LLG, and he is going against the decision of his own governmental Authority. For this reason, I find the proceeding is prejudicial and tends to cause embarrassment and thus be dismissed.

Similar Proceedings in OS 23 of 2024

11.  The Defendant, Kainantu DDA, filed proceedings in OS No 23 of 2024 in Waigani against K92 Mining Ltd and R& Sons Limited concerning the same road project. In that proceeding, Kainantu DDA seeks to nullify the contract for noncompliance of statutory and procurement requirements and for the restarting of the procurement process. OS 23/2024 was filed on 1st August 2024, first in time while OS 195 of 2024 was filed on 4th September 2024. The substantive issue raised in OS 23/2024 proceeding is whether the contract for the road project awarded to R & Sons by K92 Mining is valid and legitimate. The substantive issue raised in the Plaintiffs OS 195/2024 proceeding is whether Kainantu DDA has the power to stop the road construction project. The issues are related. The issue raised in the Plaintiff’s proceeding can be easily subsumed in the earlier OS 23/2024 proceeding. The Plaintiff can be a witness for the Defendants in the earlier proceedings if he wishes. For the Court to run this proceeding parallel to the earlier proceeding in Waigani is an abuse of the process. This proceeding will therefore be dismissed for abuse of the process.

Lack of substantive Relief

12.     Finally, Order 4 Rule 3 of the National Court Rules provide for the choice of the mode of proceeding and the kind of reliefs that are open to a party. The substantive relief sought in the proceedings is for a declaration that Kainantu DDA does not have the power to stop the road construction project. In my view, the substantive issue is the validity of the contract and the legality of the decision of the Kainantu DDA. The substantive relief sought in the proceeding presupposes that the contract for the road project is valid and that the decision of the Kainantu DDA is a nullity. In other words, the relief sought by the Plaintiff is not a primary declaration. Without a primary relief in a declaratory form, the reliefs sought by the Plaintiff are not the kind that Order 4 Rule 3 envisages. This is an abuse of the process and the proceeding shall be dismissed.

Conclusion

13.  In the end, I have reached the conclusion that the Plaintiff’s proceeding is an abuse of the process for the reasons given and must be dismissed.

The Plaintiff’s application

14.  As I have reached a decision to dismiss the proceedings, it will not be necessary to consider the Plaintiff’s Notice of Motion.

Costs

15.  The issue of costs is discretionary. The Defendant has successfully defended the proceedings and is therefore entitled to the costs.

Orders

16.      The Court orders that:

1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiff shall pay the costs of the proceeding to be taxed, if not agreed.
3.	Time be abridged
_______________________________________________________________
Lawyers for the plaintiff: Daniels & Associates Lawyers
Lawyers for the defendant: Aisi Lawyers