Tulapi v Yer [2010] PGNC 81; N4095 (15 July 2010)

N4095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 115 OF 2010

DANIEL TULAPI
Plaintiff

V

GABRIEL YER, SECRETARY, DEPARTMENT OF FINANCE
First Defendant

CAROLINE JARUGA, PRINCIPAL LEGAL OFFICER,
DEPARTMENT OF FINANCE
Second Defendant

NEVILLE DEVETE,
SOLICITOR-GENERAL
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J
2010: 13, 15 July

PRACTICE AND PROCEDURE – motions – whether a defendant can obtain substantive relief on a motion – Rule 9(1) Motions (Amendment) Rules 2005.

The plaintiff commenced proceedings by originating summons seeking orders for enforcement of orders of the District Court. The defendants responded with a motion seeking declarations that they bear no liability to the plaintiff and that the plaintiff is liable to them. In the alternative they sought leave to file a cross-claim.

Held:

(1) The notice of motion procedure should not be used as a vehicle to obtain substantive relief (John Momis v AG [2000] PNGLR 109; Rule 9 of the Motions (Amendment) Rules 2005).

(2) The defendants' motion sought substantive relief and was an abuse of process and for that reason the primary relief sought by the defendants was refused.

(3) Other relief sought by the defendants was also refused.

Cases cited

The following cases are cited in the judgment:

John Momis v Attorney-General [2000] PNGLR 109
Kenehe v Pearson (2009) N3763
NCDC v Yama Security Services (2003) SC707
Yer v Yama (2009) SC990
Yer v Yama (2009) SC996

Counsel

D Tulapi, the plaintiff, in person
E Hampalekie for the defendants

15 July, 2010

1. CANNINGS J: This is a ruling on a motion by the defendants seeking declarations as to the liability of the State to the plaintiff, Daniel Tulapi. The liability of the State arises, the plaintiff claims, from orders of the Port Moresby District Court.

2. The defendants are seeking declarations that the State bears no liability to the plaintiff and that, in fact, it is the plaintiff who should reimburse the sum of approximately K1.369 million he has received from the State arising from orders of the District Court, made in 1997 and 2005. The defendants' motion seeks, in the alternative, leave of the court to file a cross-claim against the plaintiff.

3. These declarations and orders are sought in the context of an originating summons filed on 17 March 2010 under which the plaintiff seeks:

➢ declarations as to the effect of monies paid to him pursuant to the orders of the Port Moresby District Court;

➢ orders as to calculation and payment of interest he says is due to him pursuant to the Port Moresby District Court orders – the amount claimed being approximately K1.169 million.

4. On the same day that the originating summons was filed the plaintiff filed a notice of motion and statement of charge for contempt of court against the first three defendants:

➢ Gabriel Yer, Secretary for Finance;

➢ Caroline Jaruga, Principal Legal Officer, Department of Finance;

➢ Neville Devete, Solicitor-General.

5. The motion now before the Court was filed about six weeks after the originating summons and motion for contempt, on 29 April 2010.

COMPLEXITY TO SIMPLICITY

6. This case has a complex history, going back 13 years, and a lot of time was spent at the hearing of the motion ascertaining how the case got to its present stage. At the risk of over-simplification the plaintiff acknowledges that he has been paid sums of approximately K1.3 million from the State, under the District Court orders. He says that these are the principal sums that the District Court ordered he be paid, plus costs to which he was entitled; and he is now by originating summons saying that he is still owed the interest component of the District Court orders under which the earlier sums were paid.

7. Having spent an hour or so of court time learning the history of the matter; and then another hour or so hearing submissions, what appears to be a very complex matter has been reduced, in my mind, to a very simple matter.

8. It is clear to me that the defendants have approached the court in an incorrect manner. They are asking the court, through a motion, to make orders in the nature of substantive relief: very substantial orders which would determine the nature and extent of liability between the plaintiff and the defendants, in particular the State. The defendants are asking the court to determine who owes who – and how much they owe. Such substantive matters can only be determined at a trial.

9. That the notice of motion procedure should not be used as a vehicle to obtain substantive relief is a basic rule of practice and procedure which has been well entrenched since the decision of Kapi DCJ in John Momis v AG [2000] PNGLR 109. It has been endorsed by the Supreme Court in cases such as NCDC v Yama Security Services (2003) SC707, Yer v Yama (2009) SC990 and Yer v Yama (2009) SC996. The rule is now expressly stated in Rule 9 of the Motions Rules (the National Court Rules, Order 4, Rule 49-9) which states that except as otherwise expressly provided by the Rules:

motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.

10. This motion is a little outside the ordinary in that it is the defendants who are seeking substantive relief. Usually it is the plaintiff seeking such relief. However I do not consider that that is a relevant point of distinction for the purposes of applying the rule. You are not allowed to shortcut the trial procedure by coming through the side-door of the court, via a motion. Doing what the defendants have done is an abuse of process and for that reason the primary relief they seek will be refused.

11. As to what they are seeking in the alternative – leave to file a cross-claim – I decline leave. If the defendants are serious about their argument that the plaintiff has been unlawfully or improperly paid (he was paid relatively small amounts in 2002 and 2003 and larger amounts in 2006, 2007 and 2008) they ought to file separate proceedings.

12. To sum up, I refuse all the relief sought by the defendants.

COMMENTS

13. Before I pronounce the formal orders of the court, I will make three comments that might assist the parties in resolving this matter.

14. First, it seems to me that the plaintiff's motion for contempt is premature. To successfully prosecute a person for contempt constituted by disobedience of a court order it must be proven that the order that is alleged to have been disobeyed is clear and unambiguous (Kenehe v Pearson (2009) N3763). I cannot see such an order in this case.

15. Secondly, the parties should consider seeking some court-assisted mediation for this sort of complex and protracted matter.

16. Thirdly, this might be an appropriate case, if it does not settle soon, to be continued on pleadings. Mr Hampalekie alluded to this in his submissions and the notice of motion loosely refers to Order 4, Rule 35 of the National Court Rules, which is the rule that allows the court to order that proceedings be continued on pleadings. However, an order of this nature needs to be carefully considered before it is made, and this issue is not properly before the court.

ORDER

(1) All relief sought in the notice of motion filed by the defendants on 29 April 2010 is refused.

(2) Costs of the motion shall be paid by the defendants to the plaintiff, on a party-party basis, to be taxed if not agreed.

(3) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Ruling accordingly.

___________________________
Lawyers for the plaintiff: Nil
MS Wagambie Lawyers: Lawyers for the Defendants