Tole v Pill [2005] PGDC 15; DC121 (24 March 2005)

DC121

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2700 OF 2004

BETWEEN

ALBERT WASO TOLE
Complainant

AND

GABRIEL PILL

First Defendant

AND

P.K. RHYM

Second Defendant

AND

PAUL KUNJIL

Third Defendant

Port Moresby: C Bidar

2005: 22 & 24 March

District Court - Practice and Procedure - Notice of Motion by defendants seeking dismissal of proceedings - Similar proceedings filed and pending in Mt. Hagen National Court District Court Act (Ch No. 40) s.22 Motion refused

JUDGMENT

24 March 2005

BIDAR, PM: Defendants filed notice of motion on 19th January 2005 and seeks the following orders:

1. The within proceedings be dismissed.
2. The complainant pays the costs of the proceedings.
3. Any other or further orders the Court deems fit.
   

The brief background which leads to the defendants seeking the above orders is this.

The complainant filed proceedings against the defendant in this Court on 28th June 2004. Among other things, complainant claims damages which he says the defendants were responsible for.

Briefly, he says on the 6th May 2004 complainant was driving his motor vehicle Mitsubishi L200 Reg. No. SAA:932 and whilst giving way to the pedestrians at the crossing at Koki adjacent to Big Rooster, a PMV bus Toyota Coaster white and green 25 seater Reg. No P776B owned by defendants crashed into the left rear of the complainant's vehicle. Soon after the accident the driver abandoned the PMV bus and avoided giving or reporting accident to the Traffic Police.

On the 8th May 2004 defendant searched for the offending bus and located it at Mosquito Street Morata at someone else's residence. He reported the same to Waigani Police Station. Whilst at the station, someone claiming to be the owner of the PMV bus presented himself to the station. At the station he proposed to the complainant about his willingness to repair and meet the costs of damage to complainant's motor vehicle. Complainant obliged and on 9th May he drove his vehicle to the premises of that person to be repaired. He also left him with two separate quotes.

After a week, he realized that no repair work was done to his vehicle; he then took his vehicle as well as the PMV bus in question and towed it to his premises also at Morata. The intention was for owners to pay up for damages done to his vehicle before he releases the PMV bus.

Whilst these proceedings were on foot defendant Peter Kak who claims to be the owner of the PMV bus filed writ of summons at Mt. Hagen National Court on 29th June 2004, claiming among other things immediate release of the PMV bus. Motion filed on the same day was moved and order for release of PMV bus was made and entered on 30th June 2004.

The substantive matter at Mt. Hagen National Court is pending. Basically in that proceeding, there is a claim for loss of business or profit, when the PMV bus was in complainant's possession.

Counsel Mr. Koi's submission is basically that, similar proceedings are pending in Mt. Hagen National Court and that the proceedings in this Court should be dismissed, as it would amount to duplication of proceedings. Counsel submits that this Court can invoke its powers under Section 22 and 23 of the District Court Act to grant orders sought.

Miss Lau for respondent submitted that the cause of action arose in Prot Moresby and the respondent filed proceeding in this Court seeking among other things damages. Pleadings have closed and the matter is ready for trial. The summons in Port Moresby District Court was filed before the writ of summons at Mt. Hagen National Court.

The proceedings in Mt. Hagen National Court was filed simply because the complainant in these proceedings towed the PMV bus away and kept it at his place for sometime. The reason was that someone who claimed to be owner offered to maintain and repair the damage done to the complainant's vehicle but did not do so. The owners did not report accident to Police or even felt responsible and talked to complainant. He kept the bus to ensure that the owners showed up and pay for damages.

Having heard both counsel and having considered the circumstances which led to proceedings filed in this Court as well as proceedings in Mt. Hagen National Court, I find that there is really no legal basis for seeking the orders applicants seek. The proceedings filed in this Court by the complainant are genuine and not frivolous or vexatious. The proceedings in Mt. Hagen National Court appear to be consequential proceedings. In this motion, I am unable to be satisfied with the reasons advanced for dismissal of the proceedings. I would therefore refuse the motion. I dismiss the motion and order costs to be in the cause.

Lawyers for the Applicant: Amet Lawyers
Lawyers for the Respondents: Patterson Lawyers
Counsel: Ms. S. Lau