Pukari and Oro Cable TV v Seeto [1996] PGNC 26; N1490 (6 September 1996)

Unreported National Court Decisions

N1490

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 986 OF 1994
BETWEEN:
PAUL PUKARI - 1st Plaintiff
And:
ORO CABLE TV - 2nd Plaintiff
And:
PETER SEETO - Defendant

Waigani

Doherty J
6 September 1996

INTERIM RULING

PRACTICE & PROCEDURE - security for prior judgment and costs - abuse of process.

The Plaintiff was defendant in 2 actions by the defendant and others arising from the same or a related cause of action. Judgement was awarded against them in default of appearance but were not met.

Held:

Taking an action when judgements in the same or related actions have not been complied with amounts to an abuse of process. Stay allowed until judgs mnts met.

Cases Cited:

Asher v The Secretary of State [1974] 2 WLR 466

James McCabe v The Governor; Company of the Bank of Ireland [1889] UKLawRpAC 25; [1889] 14 App. Cas 413

Counsel:

Mr LoMr Lomai & the 1st Plaintiff In Person

Mr Nii for the Defendant

6 September 1996

DOHERTY J: This is an interim ruling of an application for security for costs, alternatively that the plaintiff pay into Court K11,437.13 in respect of two outstandidgments in related proceedings in favour of the defendant plus K3,000.00 as security for coor costs in this proceeding and that the hearing date be vacated until the payment for security is met. I outlined my decision and undertook to publish it in full. I do so now.

To fully understand the application I think it is necessary to outline the events that have had led uphis case.

The plaintiff, Mr Pukari and the defendantndant Mr Seeto, according to plaintiff, had entered into a joint venture called Oro Cable Television to supply television in the Popondetta area, Mr Seeto supplying the dish and the Plaintiffs supplying the cable and the expertise. Tit alleges Mr Seeto to hato have then entered into other arrangements with other persons to supply television, allegedly in competition to Oro Cable Television. The other organisation was called Community Colour TV. As a r the plaintiffs clai claimed damages for breach of contract generally and exemplary damages and loss amounting to over K13700 ag Mr Seeto.

This writ was filed on 13th Dech December 1994. However there had bhad been earlier proceedings between the same parties and other parties. commenced with Mr Pukari kari taking an action in the District Court at Popondetta when anarte injunction prohibiting Mr Seeto and others in the orga organisation, Community Colour Television, from supplying television in the Popondetta Area. As a resulthat particular ular ex parte injunction that was granted to him on the 3rd November 1993 an appion seeking to set iset it aside was taken in the National Court in OS 199/94. That was a succe applicatiication and I undnd from submissions before me (although I have no actual file) that there was no appearancerance by Mr Pukari or on his behalf.

On the 13th December 1994, that is approximately thly three months after the date of the judgment in WS 190/94 at which Mr Puhad not appeared, he issuedssued the present proceedings against Mr Seeto. I do not know when the writ was served as there is no affidavit of service but a notice of intention was filed on 23rd December 1994 and a defence in March 1995. There were severalges of l of lawyers and in May 1996 an application was made to strike out the defence of Mr Seeto and enter judgment for K137,66 That application was unsuccessful and costs were awarded against Mr Pukari. Th0; These have nen taxed axed but Counsel had applied for the sum of K500.00.

None of the amounts awarded by the Court now totalling K11,437.13 against Mr Pukari have beid despite knowing the existence of the judgments and the athe attempts to enforce them. He exp in person that he t he thought his lawyers were appearing on his behalf and he also says in explanation for non payment that he considers the costs should be mot just by him but by himself and Mr Seeto (the defendant) ant) because Oro Cable Television was a joint venture with Mr Seeto. He says he was not the one collecting the money fees for Oro Cable and the original bank account is closed. This appears to beariance ance with the pleadings because he mentions that all monies were collected were to be deposited into the account of Oro Television at Papua New Guinea Banking Corporation and Oro Cable Television is the second cond plaintiff in this action and he appears to represent it.

In support of his application Mr Nii refers to several provisions of the rules. O. 12 R.7 statiCourt may smay stay proceedings for non payment of costs in a new action following “dismissal of earlier proceedings&#8221ch are substantially the same. es not contend the previouevious actions were “d220;dismissed” but points to the powers of the Court vested by the rules. He also refers to the pronisions of O. 14 R.25 empowering the Court to order security for costs. He concedes that the ca nois not strictly within those rules viz the plaintiff is resident in Papua New Guinea is beneficially and there hase has been no misstatement or change of address. It is arguable that the tiaintiff may not be persuing for his own benefit but that is not apparent on the pleadings.

At no time in the previous proceedings have the Plaintiffs erought a counter-claim or appeared before the Court. 160; They not filed a defe defence, not made an appearance, not explained Mr Pukari’s non appearance other than to say he expected his lawyer to appear. He has not any offers of s of settlemor offer of payment into Coto Court. He has not appealed the previous decision or sought to have it set aside. I consider the pleadin thin this case are, or very close to, a counteounter claim against the present defendant’s action in WS 190/94.&#1hilstannot be said it d it is an exact counter claim all claims evolve around a dispute about whut who was entitled to run Cable Television in the Popondetta area and his allegation that it was his business and that the present defendant was taking that business away from him. I consider tha actions of s of the plaintiff come close to an abuse of the process of the Court.

I have not been referred to any case law on the powers of the Court to stay proceedings in circumstances such as these nor can I find any precedents in our jurisdiction.

In considering this I have looked at some of the precedents outlined at Pages 142-144 in the text Odgers Principles of Pleading and Practice 21 Edition on the subject of payment of security in costs. I quote in pular from a ca a case cited therein Asher v The Secretary of State [1974] 2 W.L.R. 466: “Where the plaintiffs appealed agaa decision of a District Auditor without challenging the validity of the decision and lost,lost, the Court of Appeal held that it would not be allowed to raise the issue of validity in fresh proceedings involving further parties. Strictly the matter is no rei judicata but these Courts have ample power to prevent any abuse of their process. These pdings are in my opiy opinio an abuse. These (plaintiffs) are se king by one shift or another to escape the conseconsequences of their own wrongdoing&#8221>

Halsbury’s Laws of England 4th Edition Vol 37 at37 at Para 332 lists the following as situations when:

under its inherent jurisdiction, the court has power to order the stay of proceedings or further proceedings:

(1) & where there has been an a an abuse of the process of the court;

(2) ҈ by stri striking out a nopi appeere iplaint competent;

(3) &#160ess less and uand unti until ntil the pthe plaintiff in a claim for damages for pal ins subhimselfmself to a medical examination of a reasoneasonable able character which is reasonably required;

(4) & unless less and until the plaintiff gives security for costs as ordered;

(5) &##160;; where tere the cose costs of a previotion eviouceediave not been paid;

(6)p>(6) &ـ where here here thre the pthe proceeroceedings are instituted or continued witlawfuhority by the plae plaintifintiff;

(7) upon an agreetent fe rehe the matter to a foreign court or tribunal;

(8) ;ټ where tere the pare parties have concluded an agreement for the compromise or settlement of a ng ac

) where anoacti b is begun bgun by a minor or mental patient without a ut a next next friend;

(10) ـe thee crotionseen teen tme parties.

But adds:

“The cour court hast has an i an inherenherent junt jurisdiction to adjourn proceedings forated time, but not generally or for an unreasonably long ting time.”

The text continues at para 443 to say:

“The most important ground on which the court exercises its inherent jurisdiction to stay proceedings is that of abuse of process. This is a power which,as bhas been emphasised, ought to be exercised sparingly and only in exceptional cases. It is nnfined to cases whes where the indorsement of the writ or the pleading is an abuse of process, but may be exercised where the abxtends beyond the indorsement or pleading and is demonstrated by almost incontrovertible fale facts and circumstances proved by affidavit evidence, if necessary...

It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.”

As authority the case of James McCabe v The Governor and Company of the Bank of Ireland [1889] UKLawRpAC 25; (1889) 14 App Cas 413 is cited. That wdecision of the Hous House of Lords relating to the provisions of the Rules of the Court of Chancery of Ireland but I consider certain principles therein are applicable to our jurisdiction.&#1he only question before thee their lordships was whether McCabe could be allowed to proceed with an action in the Chancery Division against the respondents without having paid the taxed costs of a former action brought by him against them for the same matter in which judgement was given for the respondent bank. The apnt argued his case wase was dismissed only because he had commenced his action in the wrong division of the court. This was met a motion that that his new action be stayed as vexatious, lous and an abuse of the prhe process or until he paid the costs of the first action.

It was held:

“The rule is eished that where a plaintifintiff having failed in one action commences a second action for the same matter the second action must be stayed until the costs of the first action have been paid; and even although the actions were not between precisely the same parties or persons suing in the same capacity, the case was held to be within the rule inasmuch as the plaintiff there was ‘suing substantially by virtue of the same alleged title’.”

It was considered the power to stay arose out of the inherent power which resides in the Court to prevent a second suit being brought upon the same cause of action until the costs incurred in the first action have been paid.

Further it was held that:

“Has been part of the inherent jurisdiction, and never doubted, of every Court (.....) to stay proceedings in an action before it, where a prior action has been brought substantially asserting the same rights against the same parties in the same or another Court, until the costs of that prior action have been paid.”

I consider such principles apply to the inherent jurisdiction of this court to enable its decisions to be respected and upheld.

Here the plaintiff has not honoured nor taken cognisance nor obeyed two orders of this court and instead of presenting his case at the original hearings by way of a counter claim he has now brought a further action evolving the same sequence of events. I consider thashould at leat least show his bona fides by meeting the order of the Court before seeking to use the process of the Court spaces a process which he ignored himself in the other court cases spao take action against the sthe same defendant.

I rule that he should pay the former judgments of the Court and until that is done I consider the powers of the Court to stay further proceedings in O. 12 R. 7 (2) (e) following dismissal also apply where the Court has ordered the party to pay costs. I combine that the orders ders which Mr Nii has referred to in O. 14 R. 25 also vesting power to stay pending payment of the previous judgments. Both of these rules indicate the Courts inherent power event abuse of its own proc process.

I order that the plaintiff pay into Court the amount of the previous judgments together w sum of K300.00 in respect of costs (yet to be taxed) follofollowing the striking out of a motion in this matter and a sum of K1,800.00 in respect of costs for WS 986/94. The matter is stayedl the the judgments are met.

Lawyers for the Plaintiffs: B Lomai

Lawyers for the Defendant: Nii & Mirupasi Lawyers