Coconut Products Ltd v Kokonas Indsatri Koporasen [2012] PGNC 123; N4837 (11 April 2012)

N4837

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1090 OF 2011

BETWEEN:

COCONUT PRODUCTS LIMITED
Plaintiff

AND:
KOKONAS INDASTRI KOPORASEN
First Defendant

AND:
PRISTINE CO. NO. 101 LTD
Second Defendant

AND:
HENRY WASA as Registrar of Titles
Third Defendant

Waigani: Kariko, J
2012: 10th & 11th April

PRACTICE AND PROCEDURE – application to dismiss proceedings – similar proceeding dismissed earlier – appeal pending against the earlier dismissal – abuse of process - Order 12, Rule 40(1) National Court Rules

PRACTICE AND PROCEDURE – costs – solicitor-client basis – principles

Facts:

An application was made to dismiss the proceeding for being an abuse of process as:

(1) The plaintiff had filed a similar proceeding the previous year which was dismissed; and

(2) The dismissal was appealed against to the Supreme Court and the appeal is pending.

Held:

(1) The proceeding is dismissed as an abuse of process.

(2) Costs ordered on a solicitor/client basis as the conduct of the plaintiff's lawyers was considered improper, unreasonable and blameworthy.

Cases cited:

Rex Paki v MVIL (2010) SC1015

Counsel:

Mr D Gavara-Nanu, for the plaintiff
Ms M Apawa, for the first defendant
Ms E Suelip, for the second defendant
No appearance for the third defendant

11th April, 2012

1. KARIKO J: Coconut Products Limited (CPL) filed this action in relation to the possession of a property on Buka. The first defendant Kokonas Indsatri Koporasen (KIK) has applied to have this proceeding WS No. 1090 of 2011 (WS 1090) dismissed pursuant to O12 r40 of the National Court Rules for:
   
   • (a) failing to disclose a reasonable cause of action;
   • (b) being frivolous and vexatious; and
   • (c) being an abuse of process.
     

Abuse of process

2. The facts in support of the application are set out in the affidavit of Emmanuel Asigau and briefly summarised, these are:
   
   • On 22 June 2011, CPL filed identical court proceeding against the same defendants in WS No. 622 of 2011 (WS 622).
     
   • On 11 August 2011, that proceeding was dismissed by this Court upon a similar application as the present.
     
   • On 18 August 2011, CPL filed an appeal to the Supreme Court against the dismissal (SCA No. 96 of 2011).
     
   • CPL was initially granted certain interim injunctive orders and a stay order but these orders were later discharged and refused on 15 September 2011.
     
   • The appeal SCA No. 96 of 2011 is still pending determination.
     
3. CPL has not contested these matters deposed to by Mr Asigau except to state that the present Writ of Summons is not properly before the court as part of Mr Asigau's affidavit for comparison with WS 622 which is annexed to the affidavit.
   
4. This Court is entitled to look at the writ of summons filed in this matter which is on the court file, and I have done so and compared it with WS 622. The parties are the same, and except for some changes in words used and structure of a couple of paragraphs, the claims by CPL and the relief sought in the present WS 1090 are otherwise the same as in WS 622.
   
5. The appeal against the dismissal of WS 622 is yet to be heard and determined by the Supreme Court. Clearly the present proceeding is an abuse of process and I would dismiss it.
   

Costs

6. KIK has also asked for costs on a full indemnity or on a solicitor/client basis. Awarding costs is a discretionary matter, and costs on a solicitor/client basis may be awarded against a party whose conduct has been improper, unreasonable and blameworthy; Rex Paki v MVIL (2010) SC1015.
   
7. By letter dated 14 November 2011 KIK through its lawyers urged CPL's lawyers to withdraw the proceedings for being an abuse of process within 7 days and warned that if not, it would apply to have the proceeding dismissed and seek costs on a full indemnity basis. The warning was not heeded and this application for dismissal of the proceedings has really not been contested. I cannot understand how the plaintiff's lawyers could not see that it was irregular and improper to file an identical action to a matter that was pending determination in the Supreme Court.
   
8. I view the conduct of the plaintiff's lawyers as improper, unreasonable and blameworthy and therefore consider payment of costs on a solicitor/client basis as appropriate.
   
9. In considering costs, I note that the second defendant has appeared whenever this matter has been set down while the third defendant has not entered any appearance.
   

Orders

10. The orders of this Court are:
    
    1. This proceeding is dismissed as an abuse of process.
       
    2. The plaintiff's lawyers shall pay the first defendant's costs of and incidental to this proceeding on a solicitor/client basis.
       
    3. The plaintiff shall pay the second defendant's costs of and incidental to this proceeding on a party/party basis.
       

___________________________________________________

O'Briens Lawyers: Lawyer for the plaintiff
Pacific Legal Group: Lawyer for the first defendant
Mirupasi Lawyers: Lawyer for the second defendant