Bray v Derks [2008] PGNC 141; N3483 (26 September 2008)

N3483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 298 OF 2008

BETWEEN:

JOHN BEDFORD BRAY and HENDRICUS DERKS
in their capacity as executors and trustees of the will of late Arnold T. Derks.
Plaintiffs

AND:

SUSAN KUPA DERKS
First Defendant

AND:

SETH DANIELS
Second Defendant

AND:

PAULINE U. YALEHEN
Third Defendant

AND:

NICK GAVERA
Fourth Defendant

AND:

G. WARI
Fifth Defendant

AND:

CHIEF SERGEANT ISAAC MOL
ROYAL PAPUA NEW GUINEA CONSTABULARY
Sixth Defendant

AND:

URSULA ANN DERKS
Seventh Defendant

In the matter of the will and testament of Arnold Theodorus Derks deceased on 11th May 2008.

Lae: Manuhu, J.
2008: 3, 17 & 26 September

RULING

PRACTICE AND PROCEDURE – Consent order obtained in Lae National Court declaring appointment of Plaintiffs as executors and trustees of will of late Arnold Derks –Subject company of deceased is Lae based - Seventh Defendant instituted action in Waigani and obtained ex parte orders declaring Plaintiffs’ appointments null and void – Contradiction is gross abuse of process – Court has duty to protect its integrity, its independence and its processes from corruption and abuse – Waigani proceeding quashed – Counsel referred to Lawyers Statutory Committee – Solicitor client cost against counsel personally.

No case cited.

J. Bray, in person.
Mr. Karu, for Ursula Derks

26 September, 2008.

1. MANUHU, J: This is a motion moved by John Bray against Ursula Derks. In the substantive proceeding, John Bray and Hendricus Derks in their capacity as executors and trustees of the will of the late Arnold Derks take action against Susan Kupa Derks and others seeking declarations principally that the will executed by Arnold Derks on 8 June 2006 is his last will and that any other will is null and void. Consequently, they seek a declaration that they are the duly appointed executors and trustees of the will of the late Arnold Derks. Accordingly, they further seek to secure and protect the assets and premises of Cartrans Limited, which company was owned by late Arnold Derks, and they also seek protection for them to carry out their functions as executors and trustees. That is the essence of the substantive matter.

2. On 5th June 2008, the Court sanctioned a consent order appointing John Bray and Hendricus Derks as executors and trustees or as administrators of the estate of Arnold Derks. The consent order also appoints the accounting and auditing firm for Cartrans Ltd and Susan Derks was permitted in the consent order to examine the books of Cartrans Ltd. The consent order also made provision for John Bray and Hendricus Derks to do everything necessary to raise funds and sell assets of Cartrans Ltd to meet liabilities of Arnold Derks and Cartrans Ltd.

3. Despite the consent order, Ursula Derks instituted another proceeding 2 and half months later in August 2008 in Waigani seeking orders, among others things, first, that John Bray and Hendricus Derks are not the duly appointed executors and trustees or liquidators of Cartrans Ltd, and; that Ursula Derks be declared as the legitimate director and shareholder of Cartrans Ltd.

4. On 22nd August 2008, the Court in Waigani made ex parte orders declaring Ursula Derks as the legitimate director and shareholder of Cartrans Ltd, and; restrained John Bray and Hendricus Derks from performing their functions by virtue of their appointment in relation to the estate of late Arnold Derks.

5. John Bray and Hendricus Derks (and the parties in the Lae matter) are obviously aggrieved by the Waigani ex parte order. I am now dealing with their motion essentially to set aside the Waigani order and have Ursula Derks joined in the Lae proceeding. A number of issues were raised and argued at length but there is none as important as whether it is decent for the two proceedings, one in Lae and one in Waigani, both of which relate to Cartrans Ltd, should be maintained simultaneously.

6. The two proceeding are a contradiction. Consequently, the respective orders, the consent orders of Lae and the ex parte orders of Waigani, are an obvious contradiction. The former appoints John Bray and Hendricus Derks and enables them to perform their functions. The latter nullifies the appointments and removes the powers of John Bray and Hendricus Derks.

7. It is an embarrassing state of affairs to me as a Judge and as a person. It is inconceivable and unconscionable that lawyers would allow such contradiction in the National Court of Justice. It is a mockery, an insult, and a corruption of administration of justice for two contradictory orders to be made in relation to the same subject matter, a Lae based company. I say this because Ursula Derks and her lawyers, and Mr. Karu, in particular, have engineered this confusion. The Waigani proceeding was commenced in deliberate ignorance of the Lae proceeding and a deliberate defiance of the consent order in Lae. It was a blatant gross abuse of process.

8. Ursula Derks, through Mr. Karu, should have applied for her to be joined as a party in Lae but Mr. Karu chose otherwise. Mr. Karu should have instituted proceeding to set aside or appealed against the consent order in Lae but he chose not to. Mr. Karu sought to commence a separate proceeding on a subject matter that is in Lae and secured a contradictory order in the process. Ursula Derks is entitle to seek redress in any court of law but when the Lae proceeding had commenced it is improper, and wrong when a lawyer is involved, for her to knowingly sneak to another court and obtain another order as she did in this case.

9. While John Bray has moved this application, the Court has also been belittled and demeaned by this incident of gross abuse and it cannot be a mere spectator. The Court has the duty to intervene and protect its integrity, its independence and its processes from corruption and abuse.

10. It is appropriate, therefore, that the Waigani proceeding and all related orders must be quashed and Ursula Derks should be joined with the other parties in the Lae proceeding. Cartrans Ltd is based in Lae. The parties in Waigani and Lae are interested in the very same company. They should all be together in one forum for the Court to properly conduct and complete its determination on the estate of late Arnold Derks. At the same time, Mr. Karu must be punished appropriately for spearheading the corruption of the judicial process. He cannot point his fingers at Ursula Derks. As an officer of the Court, he is responsible for the gross abuse of the court’s process.

11. For the foregoing reasons, the Court grants the application and orders as follows:

• That the Waigani proceeding OS 479 of 2008 Ursula Derks & Anor v John Bray and others is quashed for being a gross abuse of process,
  
• That all orders arising from the Waigani proceeding are quashed forthwith,
  
• That Ursula Derks is joined as a party to the Lae proceeding,
  
• That Ursula Derks shall provide to John Bray and Hendricus Derks a précis of the facts, matters and circumstances upon which she relies on to substantiate her claim as shareholder and director of Cartrans Ltd,
  
• That all orders and interim orders made in the Lae proceeding shall remain effective and are extended until the court orders otherwise.
  
• Cost in the Waigani proceeding is awarded personally against Mr. Karu on a solicitor client basis.
  
• Cost in relation to this application is against Mr. Karu personally on a solicitor client basis.
  
• Mr. Karu is hereby referred to the Lawyers Statutory Committee to be dealt with and the Court further directs John Bray to facilitate the referral.
  

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No representation for the Applicant
Manu & Associates Lawyers: Lawyer for Seventh Defendant