Walep v John Nombri trading as Waghi Klos Pty Ltd [2004] PGDC 54; DC480 (27 July 2004)

DC480

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 184 OF 2003

BETWEEN

Victor Walep
Complainant

V

John Nombri trading as Waghi Klos Pty Ltd
Defendant

Mt. Hagen: Appa, P.M
2004: 23rd March, 27th July

Counsel
R. J. Yer For Complainant/Respondent
D. Gonal For The Defendant/Applicant

RULING

This is an application by way of Notice of Motion to dismiss this proceeding for there being no cause of action known in law. The application was filed by Dowa Lawyers on 01/10/03. Both lawyers argued for and against the application and was adjourned for ruling but due to my urgent transfer to Mendi, ruling was delayed.

I must say from the outset that this is a simple case with identified issues and should have been disposed off quickly but has been allowed to drag on for a very long time since its inception in 1999 at Minj District Court. The history of the case is known to both parties so no need for me to reiterate it.

The significant part of it was that rather than the complainant/respondent exercised the option of applying for Judicial Review to the Supreme Court on the dismissal of Appeal in the National Court as suggested by another National Court, they have applied to the Mt. Hagen District Court by way of Motion and successfully obtained restraining orders against the defendant John Nombri from dealing with the property. That was on 20/06/01.

Then there was another application (Notice of Motion) filed on the 16/05/02 for same restraining orders against Waghi Klos Pty Ltd and the orders were granted ex parte against respondent on 21/08/02. There is nothing on court records as to what happened to the orders made on 20/06/01 above. On 27/11/02 the respondent/defendant’s Lawyers successfully applied to set aside the ex parte orders of 21/08/02 and the substantive case was adjourned for re-listing on 13th January, 2003.

It was also noted on court file that there was another ex parte application made for default judgement but that was refused on 11th June 2003 and the court again ordered for a full hearing of the substantive case.

While the substantive case was yet to be dealt with as directed by this court, the present application was made for the whole proceeding to be dismissed for there being no cause of action to warrant a trial proper, which is the subject of this ruling. The application was contested by lawyers for the complainant/respondent.

I don’t think it is necessary for me to go further into the status of the case but on the issue of whether or not there was a cause of action was apparently resolved by the court in those many applications I have referred to above. The direction was for the substantive matter to go for a full hearing and resolve the many serious issues raised and up until now the substantive case has not been dealt with.

In my view, to stop the case here would he premature and may be prejudice to the other party. I realized there were some interesting issues of law raised by defence lawyers in their written submission which relates to the competency of the proceeding but I would rather that those issues were resolved at trial proper. The most obvious issue is whether or not John Nombri had the authority to contract on behalf of Waghi Klos and for clarity sake, is the naming of "John Nombri" trading as Waghi Klos Pty Ltd" as the defendant correct. This may require proper company search to resolve.

I have now decided to refuse the application to dismiss this proceeding for some of the reasons I have stated above and allowed both parties and their lawyers to consult the Mt. Hagen District Court to obtain a date for proper trial of the substantive case. No orders as to cost. The Registry re-list the case for the next call over.

Kopunye Lawyers: Complainant
Paulus M. Dowa Lawyers: Defendant