Lau v Ambil [2014] PGDC 3; DC2050 (9 October 2014)

DC2050

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 19 OF 2014

BETWEEN

REGINA LAU
Complainant

V

DIAN AMBIL
Defendant

Port Moresby: TATAKALI DCM
2014: 09th October

Notice to withdraw, may be made within certain time, costs associated with withdrawal.

No substantive matter filed, vexatious frivolous case . Order to strike out possible, Dismissal more appropriate

Case cited:
Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585,

Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419

Counsel
S.Kamutas/In person (Mr) for the complainants
J. Kolo (Mr) for the defendants

RULING

TATAKALI DCM The complainant has filed a Notice to withdraw these proceedings. Although both parties are represented, there was no counsels for todays notice of withdrawal proceedings. It was presented by the complainant herself who stated that she has sacked her lawyer and is looking for new one, although there was no notice to this effect filed by her counsel.

As a brief background, the substantive matter to this case is laid in a complaint dated the 31st of January 2014, seeking the following orders.

1. That the defendant is not the legitimate person to conduct any official and/or business transaction for and on behalf of the Enga Searching and Recovery Women’s Association
   
2. A Permanent Restraining order, restraining the defendant and. or any other unauthorized person from representing the Enga Searching and Recovery Women’s Association in any official or business dealings
   
3. Cost
   

This case started in January of this year 2014 and has been adjourned for a number times for a variety of reasons. However on the 12th of September 2014, the complainant has given notice that she wishes to withdraw the proceedings, She gives no reasons to withdraw. The withdrawal was heard on the 09th of October 2014.

The defendant in person, argues that so far, she has spent so much time and money to defend this case and asks the court to dismiss these proceedings as it is a meaningless and with no clear cause of action and award her the costs. The complainant states that there is a clear cause of action and that she too has also spent a lot in this matter and will not pay for the costs.

The right to withdraw a case lies with the complainant but she can do so before a case has progressed to such an extent that withdrawal is not possible.

In this case the defendant has in fact, filed a notice of motion to dismiss these proceedings as being frivolous, vexatious and an abuse of process, however both counsels are not present in court today to assist the court on how best to deal with these situations.

The complainant is adamant that she will withdraw her proceedings today and does not really care if the court has an opinion on it or not. This is my case and I can do as I please seems to be her attitude and behavior. She says that she has already filed fresh proceedings against the defendant at the Grade 5 court and will pursue that new case.

The defendant has had to defend this case at considerable expense to herself and it is clearly unfair for the complainant to withdraw the proceedings at this stage without just cause. It is only fair and proper that the complainant must meet the costs of the defendant who has been forced to defend the case.

The court notes that the complainants substantive case is seeking permanent restraining orders and a declaration that the defendant is not a legitimate person for purposes of officially representing an entity referred to as Enga Searching and Recovery Women’s Association

It is trite law that only the National court that is able to, and may, if satisfied, issue such orders as sought by the complainant. The District can only deal with interim restraining orders when there is in fact a substantive matter pending at the District Court

The law is clear in our jurisdiction on application for restraining orders A number of judgments have been delivered by the higher court including the cases of Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585, and Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419

All these cases state that at least four main conditions must be satisfied before a restraining order can be considered which are that

1. He must have a substantive or main action already filed on foot.

2. He must establish that he has a serious, not speculative case, which has a real possibility of ultimate success.

3. He must also establish that he has a legal or equitable right, title or interest which might be jeopardized if the restraining order is not granted

4. He must show that "irreparable damage" or "injury" would result if a restraining order is not granted.

All of the above criteria are not established in our case and although the case has not been properly argued by both parties, the court has been forced to make a ruling based on the evidence before the court which includes the complaint, summons and supporting affidavits that has been filed . This forced consideration has been made because of the complainants adamant decision to withdraw these proceedings at this stage of the case.

Therefore having considered all that is before me I am satisfied that there is no genuine or substantive matter before this court to consider and therefore conclude that the case in its current form should be discontinued at this stage.

COURT ORDER

The Notice to withdraw is noted and the court makes the following orders

1. That the case is STRUCK OUT and the complainant is ordered to pay the full costs of these proceedings which shall be agreed if not taxed
   
2. TO GIVE EFFECT to the above order this case SHALL BE CONSIDERED AS DISMISSED, IF,
   
   1. the complainant does not settle the issue of costs within 30 working days or at any reasonable time period agreed to by both parties from the date of this order, but shall not exceed a period over 90 days or
      
   2. if the complainant files fresh proceedings at the District Court raising the same or related issues that have been raised in this case WITHOUT FIRST, complying with the above order for costs.
      

By the Court

Dated at Port Moresby this Thursday the 09th of October 2014