SC1618 
 
Papua New Guinea
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 23 of 2015

BETWEEN:
REI LOGONA
First Appellant

AND:
AIR NIUGINI LIMITED
Second Appellant

AND:
CLARK PIOKOLE
First Respondent

AND:
PNG NATIONAL PILOTS UNION
Second Respondent

Waigani: Injia CJ, Poole & Frank JJ
2015: 27th, 30th October

APPEAL- National Court practice and procedure- Abuse of court process- Similarity of proceedings- Multiple proceedings brought involving the same parties - Cause of action dissimilar- No abuse of process- Principles discussed- Appeal dismissed

Counsel:

Mr Jurth with Mr Tame and Ms Matiabe, for the Appellants 
Mr Murray with Mr Mail and Mr Otto, for the Respondents 

30th October, 2015 

1.	     BY THE COURT: This is an appeal from the interlocutory judgment of the National Court that refused the appellant's application to dismiss proceedings brought by the respondents. The appellants were granted leave by this court to appeal the judgment. 

2.	     In proceedings OS No. B24 of2014 Captain Allan Vele - in his capacity as president of PNG National Pilots Union (NAPU), acting individually and jointly, and as the duly authorised representative of 59 other members of NAPU, who are employed as airline pilots by Air Niugini Limited, and who have given their consents and authority and, whose names appear on the Schedule 1 to the Originating Summons (First Plaintiffs); and Captain Paul Andrews- in his capacity as President of PNG Air Pilots Association (PNGAPA), acting individually and jointly, and as the duly authorised representative of 87 other members of PNGAPA, who are employed as airline pilots by Air Niugini Limited, and who have given their consents and authority and, whose names appear on the Schedule 2 to the Originating Summons (Second Plaintiffs) v Simon Foo, in his capacity as Chief Executive Officer of Air Niugini Limited (First Defendant) and Air Niugini Limited (Second Defendant) (hereinafter referred to as the first proceedings), the first respondent joined other plaintiffs that comprised the first plaintiffs. The plaintiffs in those proceedings sought various declaratory orders including an order that the agreement between Air Niugini and Air Niugini National Pilots 2012 (2012 National Pilots Agreement) was valid and enforceable. They sought injunctive orders to stay the Air Niugini Pilots Contract 2015 (2015 Agreement) proposed by the appellants pending negotiations for new agreements between the appellants and the respondents. They also sought an injunction to stay imminent disciplinary action being taken by the defendants against the plaintiffs. 

3.	     Whilst the first proceedings were pending, the first respondent commenced fresh proceedings under his own name in these OS No.6 0f 2015 Clark Piokole (First Plaintiff) and PNG National Pilots Union (Second Plaintiff) v Rei Logona (First Defendant) and Air Niugini Limited (Second Defendant) (hereinafter referred to as the second proceedings). In the second proceedings, the plaintiffs sought various declaratory orders including an order that certain actions taken by the defendants including the issue of employment termination notices were in breach of the 2012 National Pilots Agreement and contravened ss 47 and 48 of the Constitution and ss 33 and 34 of the Industrial Organizations Act. 

4.	     The appellants moved to dismiss the second proceedings claiming the second proceedings were the same or similar in nature to the first proceedings and that the second proceedings were an abuse of the court's process. The trial judge having found that the second proceedings were "similar" to the first proceedings declined to dismiss the proceedings and granted leave to the first respondent to amend the second proceedings and ordered the matter to proceed to mediation under the National Court Mediation Rules 2010. The appellants appeal from that decision. 

Grounds of appeal 

5.	      There are three grounds of appeal which relate to the reasons upon which the application to dismiss the proceedings was based. The first ground is the primary ground whilst the second and third grounds deal with consequential matters. The primary ground is that the trial judge having correctly found that the two proceedings were similar erred in not dismissing the proceedings for abuse of Court process. The second ground is that the trial judge erred in ordering mediation. The third ground is that the trial judge erred in granting leave to amend the second proceedings to include a claim for damages when such leave was not sought by the parties. 

6.	      Extensive arguments, written and oral, were made before us by counsel representing the parties. Our deliberation on those arguments are embodied in our reasons for decision. 

Abuse of Court process
 
7.	     With regard to the first ground, the trial judge did find that the second proceedings "were similar" to the first proceedings but fell short of specifying in what way the two proceedings were similar. The appellants urged us to accept this finding and in turn find that the trial judge erred in refusing to dismiss the proceedings. 

8.	     Counsel for the respondents sought to demonstrate the difference between the nature of the relief claimed in the two proceedings in terms of the factual and legal foundations of the claims and to show us that although the two proceedings involved the same parties, they were different in a number of respects. 

9.	     It is clear to us that although the parties in the two proceedings were the same, the nature of the relief claimed were different. The relief claimed in proceedings commenced by Originating Summons is the main part of the claim and which should be the primary criteria by which the similarity in proceedings involving the same parties should be measured. In the case before us, the trial judge fell short of engaging in any meaningful analysis of the relief claimed in the two proceedings and drew a sweeping conclusion that the two proceedings were similar. In those circumstances, it falls on us to revisit the same pleading of the relief in both proceedings and reach our own conclusion as to whether or not the two proceedings are in fact similar or the same in nature. This we now do. 

10.	     We have carefully studied the relief claimed in the two proceedings and find that the primary relief as well as the consequential relief claimed in the two proceedings are in essence different. In the first proceeding the primary relief claimed were declaratory orders affirming the validity and enforceability of the 2012 National Pilots Agreement. In the second proceedings, the validity of the 2012 National Pilots Agreement was accepted. The plaintiffs primary relief claimed were declaratory orders that actions taken by the defendant were in breach of the 2012 National Pilots Agreement, that those actions were in breach of the plaintiffs' Constitutional rights given by ss 47 and 48 of the Constitution and that those actions also contravened s33 and 34 of the Industrial Organisations Act. The consequential relief by way of injunctive relief claimed in the two proceedings is also different. The primary and consequential relief claimed in the second proceedings reflected the different execution phase of the 2012 agreement that occurred between 2014 and 2015 and further disciplinary and other actions threatened against the plaintiffs. The cause of action and the factual basis in support thereof are in our view different. For this reason, we are of the view that there was no proper basis to support the trial judge's finding that the two proceedings were similar. We are satisfied that the proceedings though involving the same parties and based on the 2012 National Pilots Agreement were in fact different and the respondents were entitled to bring the second proceedings in the manner they did. 

11.	     We assume for argument purposes that the two proceedings were similar. Multiple proceedings arising in which similar cause of action and claim for relief are prosecuted from the same factual circumstances and involving the same parties can amount to abuse of process of the Court and stand liable to be dismissed for that reason. Yet the decision to dismiss an action for abuse of process in such circumstances is the ultimate penalty and should not be readily granted unless there are clear grounds warranting dismissal. It is impractical to prescribe the type of actions which would constitute a clear case of abuse of process. Without being exhaustive, we would suggest that an example of a case that would call for the ultimate penalty of dismissal of proceedings would be in a case where the plaintiff chose to increase his chances of success if the earlier proceedings were found to be unsuccessful by mounting multiple proceedings in the same court, arising from the same set of factual circumstances, adopting the same or different mode of commencing proceedings, under the veil of different name (personal or corporate), splitting the cause of action into similar causes of action that in essence are similar, claiming in essence the same or similar relief. If the plaintiff hopes to achieve some unfair advantage in that if the earlier proceeding is dismissed by one judge, the action will be maintained before the same or another judge of the same court, the proceedings are clearly an abuse of court process and stand to be dismissed for that reason. 
12.	We are versed with judicial pronouncements of principles concerning abuse of court process made by this Court and in some overseas cases that have been cited to us by the appellants' counsel, some of which have been followed in this jurisdiction. Those cases include this Court's decision in Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906. These principles that we have alluded to do not depart from the pronouncements of principles in those cases. The principles do not say that duplicity of proceedings that raise similar claim for relief between the same parties per se do not necessarily lead to dismissal of the subsequent proceeding, rather there is a judicial discretion to be exercised and exercised judicially. For instance even in the extreme situation where the two proceedings are similar in nature, the Court may still decline to dismiss the subsequent proceeding if the subsequent proceedings is genuine and commenced in good faith and the Court is not inconvenienced or embarrassed by the similarity in the two proceedings. If the similarity in the pleadings of the relief in the two proceedings commenced by Originating Summons can be easily crystallised and merged into some common relief by way of amendments or consolidation of the proceedings, the Court should adopt this approach instead of dismissing the proceedings in its entirety. 

13.	     In the case before us, we do not find anything in the material before the trial judge and the trial judge's reason for decision that suggests the plaintiff was not genuine in commencing the second proceedings. The second proceedings does not fall into the type of case that we have described above that warrants dismissal. We are satisfied that the trial judge properly exercised the discretion in opting to retain the two proceedings and granting leave to the plaintiffs to amend the second proceedings to include an additional relief (damages). 

14.	     It has now been brought to our attention that the first proceeding has been disposed off after this appeal was filed. There are conflicting versions as to whether the proceedings were dismissed by the Court or discontinued with leave. The order dismissing the proceedings or granting leave to discontinue the proceedings has not been placed before us. Whatever the correct mode of terminating those proceedings may be, we accept that those proceedings are no longer on foot and that neither party has challenged the termination of those proceedings by appeal. This is a relevant development to which this Court cannot turn a blind eye. 

15.	     The appellants contend the dismissal of those earlier proceedings confirms that the subsequent proceedings were in fact similar and an abuse of court process. The respondents maintain the first proceedings having been removed, the question of duplicity does not arise with regard to the second proceedings. The respondents argue that the current proceedings stand on their own and can be maintained on its own. 
16.	     We are of the view that the effect of the dismissal or discontinuance of the first proceedings after this appeal was filed is that it has rendered obsolete the duplicity and abuse of process argument. The current proceedings (the second proceedings) remain on foot and the question of duplicity and abuse of court process does not arise. 

17.	     For the forgoing reasons, we dismiss the first and primary ground of appeal. 

Mediation order
 
18.	     It follows from our determination of the primary ground of appeal in favour of the respondents that the second ground of appeal must also fail. The mediation order, though appealed against, has not been stayed and we would have to assume that the mediation order has been complied with. 

19.	     The trial judge has wide powers under the National Court Act and the National Court Mediation Rules to order mediation in an appropriate case on application or of the court's own motion. We find no error on the part of the trial judge in ordering the matter to go to mediation.
 
Orders made not sought by the parties 

20.	     The trial judge allowed the pleadings in the second proceedings to be amended to include claim for damages. Irrespective of whether or not a directional order is applied for by the parties, the judge has a wide discretion to issue such directional orders that the trial judge thinks necessary to achieve a convenient, fair and prompt resolution of the issues in the case. We do not see any error in the trial judge's exercise of discretion in this respect. 

Orders of the Court 

21.	     For the foregoing reasons, we dismiss the appeal with costs to the respondents. 

22.	     The formal orders of this Court are as follows: 

(1) The appeal is dismissed. 

(2) The appellants shall pay the respondents' costs of the appeal. 

___________________________________________________________
Nicholas Tame Lawyers: Lawyer for the First Appellant    
Kuman Lawyers: Lawyer for the Second Appellant  
Murray & Associates Lawyers:  Lawyer for the Respondents