Meuro v Terra [2005] PGDC 85; DC457 (7 June 2005)

DC457

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1547 OF 2003

BETWEEN

Tanoi Meuro
Complainant

V

Mark Terra
First Defendant

Kumul Hotels Limited
Second Defendant

Port Moresby: Bidar, PM
2005: 2nd & 7th June.

District Court - Practice and Procedure – Submission by defence counsel that no reasonable cause of action before Court to be tried – Complainant given opportunity to file and serve amended statement of claim – He has not done so – Pleadings filed previously struck out – Complainant still relies on the same pleadings – If cause of action is assault – he has filed no amended statement of claim to that effect – No reasonable cause of action before Court for Court to proceed to trial – Statement of claim struck out – and proceedings dismissed.

Cases Cited
There are no cases cited

Counsel
Complainant appeared in Person.
Mr. G. Gileng for defendants.

RULING ON DEFENCE SUBMISSION

7th June, 2005.

BIDAR PM: On 23rd June 2003 complainant filed summons upon complaint against the defendants, Mark Terra, Jim Burton, General Manager, Holiday Inn and Kumul Hotels Limited. In his statement of claim he alleges that on the 10th March 2003, first defendant was at all material times employed as security guard by the second and third defendants and that Henry Waabina the bottleshop attendant, Peter Makeu the waiter, collaborated with Ivan Kae and uttered the words that the complainant "Conman get out of here."

By reason of calling him conman denied him access to the hotel to visit his friends. As a result argument ensured prompting security guards Mark Terra, Paul Mbagaman coming in aid of Ivan Kae and used unreasonable force to drag complainant by neck and hands to the main gate in the presence and hearing shot of members of the public. The complainant was saved by calls from members of public.

As a consequence he allegedly suffered shame, humiliation and embarrassment and continues to suffer physically and emotionally particulars of loss are:

Loss of pride, prestige and dignity wherefore complainant claims the sum of K10,000.00 for harassment and for personal damages, including exemplary damages pursuant to the provisions of Defamation Ac t (Ch. No. 293). Interest pursuant to Statute and costs.

Since the filing of these proceedings, it has been adjourned for many times for various reasons. I note from record, that the matter had been set down for hearing on several occasions but the hearing did not eventuate.

On 18th July 2003 a motion was filed and served. On 31st July 2003 motion was heard and adjourned to 4th August 2003 for ruling. On 4th August 2003 motion was granted in part. Court ordered that the second defendant Jim Burton was removed or struck out. Other defendants remain and complainant was directed to file and serve amended statement of claim and matter was returnable on 18th August 2004 at 9:30am.

Since making of these Orders, the second defendant’s have remained and no amended statement of claim was filed. A letter to defendants lawyer, Mr. Gileng dated 12th August 2003 stated that complainant has changed his mind and would proceed with DC1545 and not DC 1547. The case DC 1545 names Ivan Kae as the defendant. Whatever it was, the fact remains that no amended statement of claim was filed and served.

As to the submissions by Mr. Gileng for defendants, the thrust off his submissions is that there is no cause of action currently on foot to proceed to trial. Statement of claim filed on 23rd June 2003 does not properly plead any cause of action. The statement appears to allege defamation but that has been struck out and if complainant intended to proceed for assault, then no pleadings have been filed. Pleadings are essential so that the issues are clear and that the other party knows what he has to meet so as to defend himself.

Complaint was given opportunity to file amended statement of claim. I accept that, he did not have a benefit of services of a lawyer to assist him but to come to Court one must play by the rules.

The issue really is whether there is a cause of action which can be pursued to trial.

I have heard Mr. Gileng counsel for defendants and complainant and having perused the Court file thoroughly, I am inclined to accept the submissions by Mr. Gileng, that the statement claim as it when it was first filed, does not disclose any reasonable cause of action. If complainant intended to pursue damages for assault, then I find no pleadings filed to that effect. In all the circumstances, I accept the submissions by Mr. Gileng that no reasonable cause of action is on foot for complainant to pursue. He was given opportunity to file amended statement of claim but has not done so. I sympathise with his predicament but it is not for Court to assist him. Court is supposed to be neutral referee to the proceedings before it. In the result, I order that these proceedings are dismissed with costs to the defendants.

Rules accordingly.

In Person: Complainant
Mr. G. Gileng: Defendant