Guma v SP Brewery Ltd [2008] PGDC 60; DC737 (9 April 2008)

DC737

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT’S GRADE FIVE CIVIL JURISDICTION]

GFCi 339-329 of 2007 & GFCi 330 – 331 of 2007

BETWEEN

STICKSON GUMA
Complainant

AND

S.P. BREWERY LTD
First Defendant

AND

PIUNDE LTD
Second Defendant

AND

BETWEEN

MARGARET KAWAGE
Complainant

AND

S.P. BREWERY LTD
First Defendant

AND

PIUNDE LTD
Second defendant

Kundiawa: M. Gauli, PM
2008: April 03rd, 09th

CIVIL - Application by defendants to dismiss the proceedings for abuse of process of Court – Earlier proceedings discontinued by the Complainant with no reasonable explanations.

Cases Cited:
Nil

References:
Nil

Counsel:
For the Complainants - Mr. K. Sino of Sino Lawyers.
For the First Defendant - Ms. R. Kot of Warner Shand Lawyers In person
For the Second Defendant - Mr. T. Bongere

09 April 2008

DECISION OF THE COURT

M. Gauli; PM: The two causes of actions by the complainants Stickson Guma and Margaret Kawage against the defendants the South Pacific Brewery Limited and Piunde Limited are heard jointly together because the same defendants were sued and the date of incident and the nature of the complaints in each case are the same or similar both in form and time. There is no provision in the District Courts Act that allows the District Court to joint the parties or causes of actions. However the decision of Justice Sakora is the case of AGC (Pacific) Ltd –v- Sir Albert Kipalan, James Pambeni, Kuri Lakau, Paul Depo and Patterson Lin N1944 (Unreported) is the authority in our jurisdiction for jointer of parties and causes of actions that may be joined so that the appropriateness of joining various parties and causes of actions to ensure that all proper and necessary parties are able to join. In the present proceedings, since the Complainants have sued the same defendants and the cause of actions are same both in nature and time; I see no problems in joining these proceedings.

Nature of Complaints

Both complainants claim that on the 15th of February 2007 they bough the beers product of the SP Brewery Ltd from the second defendant’s shop at Piunde Service Station in Kundiawa. The beer was contaminated. After consuming the contaminated beer the complainants suffered health problems, experienced abdominal pains cormitting and diarrhoea for seven (7) days. They were treated at Kundiawa general hospital. And they each claim K10,000.00 in compensation as damages.

Preliminary Matters

Counsel Mr. K. Sino of Sino Lawyers for the Complains informed the Court to have the action against the second defendant Piunde Ltd be withdrawn except for the cause of actions against the S.P. Brewery Ltd (first defendant). Court granted the application and the case against the defendant Piunde Limited are withdrawn.

The complaint’s counsel Mr. K. Sino and the counsel Ms. R. Kot for the defendant S.P. Brewery Ltd have agreed not to cross-examine the opponents witnesses. They asked the Court to read the affidavit evidence and the submissions from both parties and make a decision. I accepted to proceed as suggestions by both counsels and proceeded by affidavit evidence.

Defendant’s Application

The defendant SP Brewery Ltd had a Notice of Motion on foot filed on 01st May 2007 seeking orders to dismiss the substantive matter of the proceedings against the defendant. The Defendant / Applicant rely on the affidavit of Michael Wilson filed on 01st May 2007 and the submission filed on 03 April 2008. The Complainants / Respondents have not filed any affidavits except the submission by their counsel in response to the defendant’s notice of motion.

Basically the defendant’s application seeks for two orders. First is to dismiss the proceedings pursuant to Order 12 Rule 40(1)(c) of the National Court Rules. He says that the Complainant / Respondent’s earlier actions against the defendants in the proceedings DC Nos. 251 & 252 of 2007, the gist of which are the duplicates of the current proceedings, were discontinued with the leave of the Court on 10th April 2007. Then a day after discontinuation order the complainant filed these fresh proceeding where the nature and the content are the same. And the defendant submitted that this amount to a abuse of the process of the Court.

The second order the defendant seeks in his notice of motion is for the complainant to pay the defendants cost in respect of DC Nos. 251 & 252 of 2007 persuant to Order 8, Rule 67(b) and (c ) of the National Court Rules. The best the Complainant should have done was to have the proceedings adjourned sine die then retrive it at the time convenience to him rather than discontinuing the matter. The 0.12 R.40 and 0.8 R.67 of the National Court Rules are the practice rules for the National Court, they are not for District Court.
The s.147 of the District Courts Act allow the complainant to discontinue the cause of action in order to avoid dismissal. And when the proceedings are discontinued he can file a fresh. When the complainant decides to withdraw or discontinue the proceedings in my view, he should only do so if one of the following situation arises –

1. The matter had been settled out of Court.

2. The complainant decides not to further pursue the matter against the defendant.

3. The complaint and summons are poorly drafted that if the proceedings continue in that form there is a real risk of the case being dismissed.

4. The defendant may be a wrong person or entity sued.

5. The complainant wants to include another person entity as a party either as a complainant or as a defendant in the proceedings.

The above listed situations are not specifically listed under s.147 of the District Court Act. The list is not finite. When the complainant decides to withdraw or discontinue the cause of action there must be some convincing reason for taking that course in order to avoid a dismissal. The whole point behind discontinuing the proceedings is to avoid possible dismissal. Where the proceedings are discontinued on the application of the complainant and where none of the a above situations arise and with no reasonable explanation for the discontinuance and where the complainant files fresh proceedings which are similar or same in content and form as in the earlier proceedings that was discontinued then in my view that amount to abuse of the process of the Court. The complainants gave no reasons or explanations why they applied to discontinue the earlier proceedings. I could not be convicted that the complainants would rely on s.147 of the District Courts Act to file fresh proceedings as is the case here.

Having satisfied that the complainant did not have any reasonable explanations for discontinuing the earlier proceedings, the filing of the current proceedings are abuse of the process of the Court. And I must grant the defendant’s application and hereby ordered that the complainant’s substantive proceedings be dismissed with costs for the defendant SP Brewery Ltd. The proceedings against the defendant Piunde Ltd are withdrawn on application by the complainants counsel.

For the Complainants - Mr. K. Sino of Sino Lawyers.
For the Defendant - Ms. R. Kot of Warner Shand Lawyers.