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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GR5CV 02 of 2021
BETWEEN
FRANCIS MONDO DAU
Complainant
AND
PHILIP TAUBUSO &
DORCAS GAMBU
Defendants
CIVIL PROCEDURES –Application to set aside Ex-parte Orders –Application to dismiss proceedings for abuse of process – Existing National Court matter – Similar claim instituted at District Court for damages.
NEGLIGENCE – seeks damages for negligent acts and inactions of Public servant – application to dismiss for abuse of process and disclosing no cause of action – complainant obtained ex-parte Court orders from District Court without disclosing existence of National Court proceedings – vexatious and frivolous – costs awarded to complainant for failure of defendants to act promptly in defending claim.
Cases Cited
PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85
SC1717; Coconut Products Ltd v. Markham Farming Company Ltd
Anderson Agiru v Electoral Commission and The State (2002) SC687
The State v Peter Painke [1976] PNGLR 210
Kiee Toap v. The State (2004) N2731
Counsel
Francis Mondo Dau, in Person
Walters Malo, for the Defendants
B Tanewan PM: This is a claim for damages done to the Complainant and his family by the defendants through their decision not to reinstate the Complainant to his position as the Local Level Government Manager for Kalia/Kove Local Level Government (LLG) of West New Britain Province.
2. The Complainant filed Summons and Complainant on 9th February, 2021 seeking damages for emotional stress pain and suffering caused to him and his family through the defendants alleged manipulation of the system, corroboration with each other in the ignorance of lawful instructions from Public Service Commission (PSC), the Department of Personnel Management and the Provincial Administrator to reinstate the Complainant to his previous position as the Manager Kalia/Kove LLG.
3. Service of the Summons was affected on the defendants on 21st February, 2021 and matter was set for mention on the 9th March, 2021. On the first mention date none of the parties attended court and thus matter was adjourned to 23rd March 2021. On 23rd March, 2021, the Complainant appeared and successfully ex-parte orders against the defendants as the defendants were found to have failed to file defence within time prescribed by law.
4. The defendants failed to settle the judgment order despite the service of the orders on them so the Complainant obtained a Warrant of Execution and later and order for Oral Examination but still the defendants showed no interest in the matter. Therefore on 29th June, 2021 the Complainant applied for Warrant of Arrest to be issued against the defendants successfully, prompting a knee jerk reaction from the defendants to file and move an urgent application setting aside the warrant of arrest as well the ex-parte orders of 23rd February, 2021 and the substantive matter relisted for interparty hearing on 7th July, 2021. This is now the Court’s decision on the matter.
The Complainant’s case.
5. The Complainants argues that the defendants have personally corroborated with each other, manipulated and intentionally defied lawful instructions from PSC, DPM and Administrator to reinstate him to his previous position. They have done that personally so they should be held personally for their actions and inactions. The defendant stated that because of the defendants’ doing the complainant and his children and family suffered and should be compensated for that.
6. He further submitted to the Court that despite the summons being served on them as well as the Court orders and other proceedings the defendants failed to show any interest in the matter. They have failed to file defence within the time prescribed by law and only reacted when the Warrant of Arrests were issued against them. They basically have forfeited their right to be heard and cannot waste everyone’s time at the eleventh hour. The Complainant stated that the defendants should be punished for wasting everyone’s time in dragging the court back to hear this matter.
The Defendants’ case
7. In reply to the Complainant/Respondents’ submission the Defendants through their lawyer Walters Malo argued that the Complainant has already filed proceedings at the National styled as WS 1312 of 2018 against the same defendants and the West New Britain Provincial Administration seeking damages for the same acts and/or inactions of the same defendants and that matter has not been determined. Whilst that National Court matter is still on foot he has sought same remedies at the District Court. The defendants argue that this amount to abuse of Court process and thus these proceedings should be dismissed for those reasons.
8. The defendants further urged the Court to properly consider the matter on its merits and in doing so must take note of the following in addition to the above, that both Defendants are public servants in the West New Britain Provincial Administration and thus employees of the State.
9. Also the decisions made in the light of the Complainant’s case were decisions made within the scope of their employment and duties as Public Servants and nothing personal against the complainant and the defendants are sued as nominal defendants and the state should be sued on vicarious liability basis.
Issues
10. The Court in considering the arguments of both parties as well as documentary evidence by way of sworn evidence and annexures as well and the oral submissions identify the issues being;
(a) Does filing of the District Court proceedings when there is an existing National Court matter on the same issues by the same parties, amount to an abuse of process?
11. The defendant filed the National Court proceedings back in 2018 and the matter has not been determined fully. This means that the matter is still much alive and thus sub-judice in nature.
12. From evidence, the same remedies sought at the National Court are again sought at the District Court. This may amount to the Complainant trying to “have a second bite at the same cherry” so to speak. In such circumstances, the court must be vigilant in protecting its process from abuse by vexatious litigants and this approach has been from time to time echoed by National and Supreme Court judges.
13. In the case of PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85, the Court stated;
“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced”
14. In the Supreme Court case of SC1717; Coconut Products Ltd v. Markham Farming Company Ltd, the Court stated:
“The decision of the High Court of Australia in Williams v. Spautz [1992] HCA 34; (1991-92) 174 CLR 509 was another example of a case where a claim of abuse of process was raised in a counter-claim to the proceedings. The facts are that, an appeal was made to the High Court against the orders of the Court of Appeal of New South Wales which set aside orders obtained by the appellants from Smart J in the Supreme Court staying the prosecutions instituted by the respondent against the first two appellants and another (now deceased) for criminal defamation and conspiracy. It was on the ground that the proceedings constituted an abuse of process of the Court. Regardless of whether the proceedings would succeed or not, the question the High Court had to consider was whether the institution of the prosecution proceedings and maintained by the respondent was for an improper purpose and constituted an abuse of process where a stay should be ordered. Another case of abuse of process alleged in a cross-claim is Ballina Shire Council v. Ringland: see also Ballina Shire Council v. Ringland (1999) NSWSC 110.
15. In the National Court case of State v Peter Painke [1976] PNGLR 210, O’Leary AJ emphasized that: “mere motive, however reprehensible, will not be sufficient” (to constitute abuse of process) “it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable”.
The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding.”
16. In the light of the above, it is clear that the Complainant in filing a District Court proceeding when a National Court matter is on foot amounts to abuse of Court process as the process of the Court has been improperly used.
17. Furthermore, for the District Court to decide and award damages would be akin to “putting the cart before the house or counting the chickens before they hatch”, so to speak, thus in such a scenario it is clearly and Abuse of the Court process.
(b) Is there a cause of action or the claim is frivolous and vexatious?
18. In this particular case, the Complainant is suing the defendants for damages arising out of alleged inactions and actions and decisions made in not following the lawful directions made by PSC, DPM and the Provincial Administrator with regards to his reinstatement. He claims for damages for anxiety, emotional stress pain and suffering which are general in nature.
19. He has not specifically pleaded what each defendant has done to cause him pain and suffering so as to create the opportunity for the defendant to defend himself or herself. The claim is too vague and ambiguous and cannot stand in law.
20. In Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8, the Court in addressing the issue of frivolity and vexatious claim said;
“Frivolous", by its ordinary meaning means, "not worth serious attention or manifestly futile." Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, "vexatious" means, "causing vexation or harassment." It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed. As to the abuse of process argument, it is said on p131 that the use of the Court process to pursue proceedings which disclose no reasonable cause of action, or which are frivolous or vexatious, is clearly an abuse of that process.”
21. Similarly, in Kiee Toap v. The State (2004) N2731 Canning J summarised the principles as follows;
If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable”. (PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85, National Court, Sheehan J.)
If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out. (Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915, National Court, Kirriwom J.)
If the statement of claim just leaves a defendant guessing as to what the plaintiff’s allegations are, it should be struck out. (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001, National Court, Sevua J.)
22. Therefore, it is my view, the Complainant is not entitle to what he is asking for until and unless the issue of whether there were irregularities or some breach of the laws done by the Human Resources Division of the West New Britain Provincial Administration in not reinstating the Complainant to his position. That can only be done by the National Court. Not only that but he can only be entitled to damages if certain constitutional rights are breached and the District Court is deprived of jurisdiction in dealing with Constitutional breaches.
23. This claim is also ambiguous and lacks particulars thus makes it difficult for real issues to be identified and dealt with. It also leaves the defendants guessing as to what the complainant’s allegations are.
Therefore, based on the case precents and the law, the claim by the Complainant is frivolous, vexatious and a total abuse of the process
of the Courts and should be dismissed in its entirety.
Orders
_______________________________________________________________
Francis Mondo Dau: Plaintiff In Person
In House Lawyers : Lawyer for the Defendants
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URL: http://www.paclii.org/pg/cases/PGDC/2021/107.html