SC2146

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 183 OF 2017

BETWEEN:
THOMAS SEROWA trading as T SEROWA & CO Registered Public Accountants
Appellant

AND:
PACIFIC HIRES LIMITED
First Respondent

AND:
RICHARD TENGDUI, as Managing Director & Shareholder of Pacific Hires Limited
Second Respondent

AND:
PAULUS KOIM KUNAI as former Board Chairman and Subsequent & Current Lawyer for Melpa Properties Limited, trading as Kunai & Co.  Lawyers
Third Respondent

Waigani: Gavara-Nanu, Miviri JJ
2020:  20th July & 27th August

APPEAL – Practice & Procedure – Objection to competency – Parties named as respondents not parties in the National Court proceeding – Whether appeal competent – Whether appeal an abuse of process – Issue Estoppel – Res judicata.

APPEAL – Practice & Procedure – Objection to competency – Grounds of appeal – Whether grounds of appeal competent. 

APPEAL – Appeal against ex tempore ruling by the primary judge – Whether ex tempore ruling sufficient for a decision of the primary judge.

Cases Cited:
Papua New Guinean Cases
	
Anderson Agiru v. Electoral Commission and The State (2002) SC687 Application by Anderson Agiru (2003) SC704
Elias Towaipi v. Wilson Kamit (2015) SC1474
Isidore Kaseng v. The Independent State of Papua New Guinea (No.2) [1995] PNGLR 481
Jacob Popuna v. Ken Owa (2017) SC1564.  
Kawaso Ltd v. Oil Search (PNG) Ltd (2012) SC1218 
Michael Wilson v. Clement Kuburam (2016) SC1489
Muriso Pokia v. Mendwan Yallon (2014) SC1336 
Telikom (PNG) Limited v. Kila Rava & Other Ex-employees of Telikom (PNG) Limited & Ors (2018) SC1694.

Oversea Cases

House v. King [1936] HCA 40; (1936) 55 CLR 499
Hunter v. Chief Constable of the West Midlands Police and Others [1982] A.C. 
 529.

Counsel:

Appellant In person
P. Kunai, for the Respondents

27th August, 2020

1.	BY THE COURT: This decision is given by two members of the Court, the third member of the Court having passed on and the parties having agreed for the remaining members of the Court to give the decision of the Court pursuant to s. 3 of the Supreme Court Act, Chapter 37.

2.	The appellant appeals against the ex tempore ruling made by the National Court in Mt. Hagen on 22 November, 2017, in proceeding WS 1228 of 2003, in which Pacific Hires Limited, (the first respondent) was the plaintiff and Mr. Thomas Serowa, (the appellant) was the defendant.

3. 	In the proceeding, the first respondent sought to recover monies owed to it by the appellant for hire of vehicles. The proceeding was issued on 27 August, 2003.  On 11 May, 2011, the first respondent filed an amended Statement of Claim, in which it provided further and better particulars of its claims.  In the amended Statement of Claim, the amount claimed in the original Statement of Claim was reduced to K23, 635.34.   

4.	There were eleven invoices issued to the appellant for a total sum of K73,362.24 for hire of its vehicles.  From that amount the appellant made a part payment of K49,761.90. The balance owing was K23,600.34, but a sum of K35.00 was added for a fee for a dishonoured cheque, thus the final total amount owing was K23, 635.34.  This amount was claimed with 8% interest.

5.	Thus, the first respondent’s claim was for debt owed.  The claim was denied by the appellant, but the learned primary judge found for the first respondent based on invoices provided by the first respondent.

6.	Three affidavits filed by the appellant were rejected by the primary judge for being filed late.  The learned primary judge also found the affidavits “irrational” for the determination of the issues. This effectively left the first respondent’s claims undefended.

7.	In his ruling the primary judge said:

“This is an unusual case in that it went to trial on affidavits but the defendant led no evidence.  That situation came about as a result of my disallowance of those affidavits filed by the defendant. The bases for disallowance of three affidavits are immaterial to the determination of the action. The plaintiff sued the defendant for debt arising from an agreement or a series of agreements between the parties for the defendant to hire cars from the plaintiff over a period of time between 24 December, 1999 and 12 June, 2002, 11 vehicles in all. The particulars of those vehicles and the total amounts charged on each are contained in paragraph two of the amended Statement of Claim filed on 11 May, 2011”. (Our underlining)
 
8.	The primary judge found that the Managing Director of the plaintiff company, Mr Richard Tengdui (first respondent) provided true copies of all the invoices issued for each of the 11 vehicles hired by the appellant, in his affidavit sworn on 15 March, 2005. His Honour said: 

“In his (Managing Director) affidavit sworn on 11 August, 2017, and filed on the same day, he further deposed to documents he 	discovered as a result of the search undertaken – forced to be undertaken of the plaintiff’s business records, attaching true copies of all but one of the relevant carbon copies of the receipts issued to the defendant for payments made for the vehicles hired.

He also deposes to the fact that, the (sic) despite his searches, he was unable to find a copy of the receipt issued for some K5,000.00 paid on 24 January, 2000.  As I said above, the defendant’s amended defence amounted to no more than a flat denial.  Moreover, he for reasons given tendered no evidence in support of his defence.  Rather, he has made submissions directed to blaming the plaintiff and its employees for errors in their application of what he perceives to be accounting principles, which in them has led to the conclusion by the plaintiff that he owes the plaintiff money in the sum of K23,634.34.  The whole carriage of this action by him has in my view led to it being undetermined for greater than 15 years.  This has been brought about by what I will refer to as an extremely inordinate number of interlocutory applications on parts with little or no substance.

…In the event, I find that the plaintiff has made out its case on a balance of probabilities and there is no substance in the defendant’s case”. (Our underlining)

9.	The proceeding was titled - “Pacific Hires Limited v. Thomas Serowa trading as T. Serowa & Co. Registered Accountants.”

10.	However, in this appeal the appellant has joined the second and the third respondents who were not parties in the proceeding. The second respondent has since passed on.  The third respondent was the lawyer for the first respondent (plaintiff) in the proceeding. The third respondent has filed an objection to competency of this appeal, claiming that the appeal is an abuse of process because persons who were not parties in the proceeding are joined as respondents.  So, the issue before this Court is whether this appeal is an abuse of process and incompetent.

11.	The appellant has raised forty-nine grounds of appeal. The appeal lies without leave because the appellant claims the appeal is based on questions of mixed fact and law. The appeal was filed under s. 14 (b) of the Supreme Court Act, Chapter No. 37 and Order 7 r 9 (a) of the Supreme Court Rules, 2012.

12.	In all the grounds of appeal the appellant claims the primary judge was either bias against him or had wrongly exercised his judicial discretion in his decision.  The appellant seeks the following orders:

(a) – Appeal be allowed. 	
(b) – WS No. 1228 of 2003, proceeding be dismissed for abuse 
of process, for being statute barred, for disclosing no reasonable cause of action and for being frivolous and vexatious.
(c)	Quash the National Court decision given on 22 November, 2011.
(d)	Costs of both WS No. 1228 of 2003, proceeding and this appeal be awarded to the appellant on full indemnity basis.

13.	The third respondent argued that the appeal is an abuse of process because the appellant has joined persons (second and third respondents) who were not parties in proceeding WS No. 1228 of 1228 of 2003, and claims damages against them.  He argued that appellant has made serious unfounded allegations against them. 

14.	In the grounds for Objection to Competency, the third respondent claims the appellant has in his grounds of appeal made defamatory statements against him and late Richard Tengdui.  He argued that this is an improper use of court processes and is an abuse of process and the appeal should be dismissed.

15.	The third respondent argued that the only respondent to this appeal should be the first respondent who was the plaintiff in the National Court proceeding. He was the lawyer for the plaintiff, but he has been joined as the third respondent and is forced to defend himself.

16.	The third respondent also argued that the appeal is an abuse of process because the appellant is raising the same issues he raised in another Supreme Court Appeal titled SCA No. 34 of 2015, involving same parties. The issues in this appeal are therefore res judicata.  The parties in that appeal were the appellant and the first respondent in this appeal.  That was an appeal against a single judge interlocutory ruling to dismiss an application by the appellant to strike out a Statement of Claim which made same claims as those made in this appeal. viz; claims for monies owed by the appellant to the first respondent for hire of vehicles.

17.	In its decision in SCA No. 34 of 2015, the Supreme Court noted among others, that the total amount of invoices issued to the appellant was K73,362.24. An amount of K49,761.90 was paid in 12 instalments and the outstanding amount was K23,635.14.  These are same amounts being considered in this appeal.

18.	The Supreme Court in its decision in SCA No. 34 of 2015, noted that the appellant claimed he was prevented from doing business because of demolition and destruction of his professional practice (as an accountant) by Melpa Properties Ltd, Wamp Nga Holdings Ltd and Paulus Koim Kunai, (the third respondent) on 30 November and 27 March, 2003.  The Supreme Court also noted that an order was made for the first respondent’s claim against the appellant to be mediated. However, no mediation took place.  After the appellant’s application was dismissed, the presiding judge ordered mediation which was previously ordered to proceed but did not proceed. That was the order this appellant appealed which the Supreme Court dismissed, as discussed above.

19.	In its concluding remarks in SCA No. 34 of 2015, the Supreme Court among others said:

“…Fourth, there is no merit in grounds of appeal (d), (e), (f), (g) and (h) which are referrable to the appellant’s complaint of failure by the respondent to comply with orders of 14 August, 2014.

It is of great concern to us in this appeal that orders and material explaining the entire relevant procedural history of this matter are not before this Court.  It is the responsibility of the appellant to compile an appeal book containing documentation of relevance to the appeal…” (See p. 2117 of the Appeal Book (Vol. 7).

20.	The appellant argued before us that the second respondent and third respondents were properly joined because the second respondent was the Managing Director of the first respondent and third respondent was the lawyer for the first respondent.  The appellant also raised issues about the first respondent filing an amended Statement of Claim without leave and the primary judge not hearing him out and rejecting his affidavits for being filed late.

21.	Mr Kunai of counsel for the respondents, argued that the appellant has failed to demonstrate error in the primary judge’s ruling. He submitted that the appellant had also filed an amended defence to the amended Statement of Claim which he has complained about, so his hands are not clean to be complaining about the amended Statement of Claim. He also told the Court that the primary judge rejected the appellant’s affidavits because they were filed late.  The appellant also chose not to rely on his earlier affidavits and was given the opportunity to cross-examine the second respondent on his affidavit, although the trial was supposed to have been conducted on affidavits only.

22.	Mr Kunai submitted that the primary judge rejected the appellant’s affidavits after the respondents filed objections to those affidavits for being filed late. 

23.	Having considered the material before the Court, we have come to a conclusion that this appeal is an abuse of process because the issues raised in this appeal are res judicata, the issues are same as those upon which this Court had made determinations in SCA No. 34 of 2015.  The parties and the relief sought in that appeal are also same as those in this appeal.   In SCA No. 34 of 2015, the Court in dismissing the appeal held that the appellant had failed to adduce evidence to support the grounds of appeal and concluded that the appeal had no merit.

24.	It follows that issue estoppel lies against the appellant from raising the same issues. See, Isidore Kaseng v. The Independent State of Papua New Guinea (No.2) [1995] PNGLR 481. There must be finality to litigation.  By raising the same issues, the appellant is having “a second bite at the cherry”, to reagitate and rehash the same issues. See, Anderson Agiru v. Electoral Commission and The State (2002) SC687; Application by Anderson Agiru (2003) SC704; Jacob Popuna v. Ken Owa (2017) SC1564.  See, also Muriso Pokia v. Mendwan Yallon (2014) SC1336 and Telikom (PNG) Limited v. Kila Rava & Other Ex-employees of Telikom (PNG) Limited & Ors (2018) SC1694.

25.	We also find that the appellant has used the processes of the Court for improper purposes in that he joined the second and third respondents without any legal basis, as they were not parties in the National Court proceeding between the first respondent and the appellant in WS 1228 of 2003.  Given the unsubstantiated claims of fraud made against both second and third respondents, it is plain to the Court that the appellant has used this appeal to discredit them and to harm their reputations. In Michael Wilson v. Clement Kuburam (2016) SC1489, this Court in commenting on these types of abuse of process said:

“The types of abuses of process many vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied; defeated or prejudiced. National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v Peter Painke  [1976 PNGLR 210.”

26.	The Court has the duty to protect its processes from being abused in this way.  In Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529; Lord Diplock in discussing the exercise of the inherent power of any court of justice to prevent its processes from being abused said:

“…the inherent power which any court of justice must possess to prevent misuse of its procedure in an way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied;……….It would, in my view, be unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power”. (Our underlining).

27.	These principles were adopted by the Supreme Court in Telikom (PNG) Limited v. Kila Rava & Other Ex-employees of Telikom (PNG) Limited & Ors (supra).  The Supreme Court found that it was an abuse of process for an applicant who had exhausted his right of appeal to seek review under s. 155 (2) (b) of the Constitution, of the same decision involving the same parties.  The Supreme Court reiterated its legal duty to protect its processes from being abused in that way and dismissed the application.

28.	It would amiss of us not to comment on the primary judge’s rejection of the appellant’s affidavits for being filed late. We cannot find any error in the decision of the primary judge. The decision was made following an application by the respondents objecting to the use of the affidavits by the appellant. Thus, it was not an arbitrary decision, the primary judge gave reasons for his decision, he said the affidavits were irrational for the determination of the issues before him. The ruling was consistent with the duty of the court to prevent abuse of its processes and to ensure fair trial. The decision also protected the respondents from being prejudiced and ensured proper and fair dispensation of justice.  	

29.	In the result, the appellant has failed to show any error in the primary judge’s ruling upon which we can interfere with the ruling. See, Elias Towaipi v. Wilson Kamit (2015) SC1474; Kawaso Ltd v. Oil Search (PNG) Ltd (2012) SC1218 and House v. King (11936) HCA 40; (1936) 55 C.L.R 499. 

30.	For all these reasons the appeal is dismissed.

31.	The appellant will pay the respondents’ costs of and incidental to the appeal, which are to be taxed if not otherwise agreed.

Orders accordingly.

________________________________________________________________
Lawyers for the Appellant		:  Appellant in Person	
Kunai & Co. Lawyers: Lawyers for the First Respondents	: