Barava Ltd v Mamaliu [2013] PGNC 38; N5085 (4 February 2013)

N5085

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O. S. NO. 587 OF 2007 & 433 OF 2008

BETWEEN:

BARAVA LIMITED
Plaintiff/Applicant

AND:

AUGUSTINE MAMALIU, JOSEPH BUIDAL, ROBERT RAPRAP & JOSEPH RAITE
Defendant/Respondents

Kokopo: Lenalia, J.
2012: 12th December
2013: 4th February

PRACTICE & PROCEDURE – Application to set aside for irregularity –Order Rule 9 & 10 – National Court Rules.

Practice & Procedure – Action to set aside – Jurisdiction basis of Constitution Section 155(3).

Cases cited:

Green & Company Pty. Ltd (Receiver Appointed)-v-Green [1976] PNGLR 73 Barker-v-The Government of Papua New Guinea & 2 Ors [1976] PNGLR 340
Mt. Hagen Airport Hotel Pty Ltd-v-Gibbes and Another [1976] PNGLR 216
Gobe Hongu Ltd-v-The National Executive Council & 4 Ors (1999) N1920
Peter Meng & Others-v-Timbers (PNG) Ltd & Others (2008) N3317
Thomas Rangip & Or-v-Peter Loko & Or (2009) N3714

Counsel:

N. Motuwe, for the Applicant/Plaintiff
N. Saroa, for the Respondent/Defendants

4th February, 2013

1. LENALIA; J. In these proceedings, the parties have been to this Court on numerous occasions in previous years. The back ground history of this case dates back to 2007 apart from other OS or WS proceedings.

2. After this claim had gone through various stages, on 9th November 2012, the plaintiff's Notice of Motion containing an application to review the decision of the Taxing Officer was dismissed. The matter came before Kariko, J on the above date and after dismissing the Motion, His Honour ordered the Directors of the Plaintiff/Applicant to pay the bill of costs.

3. It was against the above order that, Mr. Motuwe of counsel for the Plaintiff/Applicant file the instant application seeking orders to set aside the orders of 9th November last year for being irregularly entered as the Directors of the Plaintiff/Applicant Company were never a party to these proceedings.

4. The application is brought pursuant to Order 1 Rule 9 and 10 of the National Court Rules. Rule 9 & 10 of Order 1 of the Rules state:

"9. Application to set aside for irregularity.

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or If made after the party applying has taken any fresh step with knowledge of the irregularity.

10. Objection of irregularity.

Where an application is made to set aside any proceeding for irregularity the several objections intended to be insisted on shall be stated in the notice of motion."

5. On arguing this application, Mr. Motuwe put emphasis on the issue that, the current directors were not the party to these proceedings and therefore they cannot be liable for any orders made against them. Counsel submitted that the Defendant /Applicant being a company has legal capacity to sue and be sued on its own name and the Directors are separate persons altogether charged with the administration of the company.

6. Mr. Saroa of counsel representing the Defendant argued in reply that, the orders relates to costs since 2007. Counsel argued that, this Court is not a Court of appeal and if the plaintiff/applicant had any issues with the orders, they could have appealed to the Supreme Court there and then. It is some five years now since the orders for costs were made and the issue of costs had been through various stages and if the plaintiff/applicant wanted to appeal to the Supreme Court it could have done that, however they did not do anything and that the current application is frivolous and an abuse of the Court process.

Jurisdiction

7. Under Order 1 Rule 9 and 10 of the National Court Rules, does this Court have the jurisdiction to set aside the orders that were made last year against the directors of the plaintiff/applicant? If there was such an application, it would have been on the instance of or by the Defendant/Respondents. Order 1 Rule 9 talks about setting aside "any proceedings for irregularity" and not "setting aside or varying judgment or order" as provided for in Order 12 Rule 8(1)(2)(a)(b)(c), (3)(a)(b), (4) & (5) of the National Court Rules.

8. The very wording of Order 1 Rule 9 says "An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time" convinces this Court that, the above provision may not be an appropriate provision and which is not applicable in the circumstances of the current application.

9. The second issue affecting this application is that the plaintiff/applicant is challenging the decision on costs made against its directors who are charged with the administration and business of the applicant/defendant. If the company wanted to challenge the decision on costs made against it on 7th December 2007, they should have appealed. It is now a little over five years since those orders were made. As Mr. Saroa pointed out in his submission, this Court is not a Court of Appeal to hear the legal argument advanced by Mr. Motuwe on the issue of the legal standing of the plaintiff/applicant and its directors.

10. The third issue is, according to the Motions (Amendment) Rules 2005, Rule 8 any Motions brought before the Registry office, must concisely cite the Court's jurisdiction. It states:

"8. Form of Motions.

All Motions must contain a concise reference to the Court's jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form."

11. The plaintiff/applicant's Motion does not seek orders to set aside orders as usually is the case with cases where orders have been and an application to set aside or vary is pursuant to Order 12 Rule 8 of the National Court Rules.

12. The applicant's counsel has not made any concise reference to this Court's jurisdiction on their Notice of Motion.

13. The Notice of Motion contains two alternative orders and counsel for the applicant /plaintiff quoted Section 155(3) of the Constitution as the basis for this Court's jurisdiction. Counsel for the defendant/respondents did not raise any issues with what I want to say now. I am of the view that Section 155(3) or (4) of the Constitution may only be applied to protect the primary rights of parties in absence of other relevant laws.

14. I am also of the view that, s.155(3) or (4) of the Constitution cannot be applied to do anything contrary or inconsistent with provisions of the National Court Rules, the Constitution or legislations: Peter Meng & Others-v-Timbers (PNG) Ltd & Others (2008) N3317, see also Thomas Rangip & Or-v-Peter Loko & Or (2009) N3714.

15. I distinguished the instant application from cases such as Green & Company Pty. Ltd (Receiver Appointed)-v-Green [1976] PNGLR 73 or the case of Barker-v-The Government of Papua New Guinea & 2 Ors [1976] PNGLR 340 where applicants applied to set aside judgment for being irregularly entered or cases involving applications to set aside ex parte orders dismissing proceedings for want of prosecution taken out under Order 12 Rule 8(3) setting aside injunctive relief orders such as Mt. Hagen Airport Hotel Pty Ltd-v-Gibbes and Another [1976] PNGLR 216 or the case of Gobe Hongu Ltd-v-The National Executive Council & 4 Ors (1999) N1920.

16. For the foregoing reasons, I dismiss the application for lack of jurisdiction. The Court makes the following orders:

1. The application be dismissed.
   
2. The costs of and incidental to this application shall be paid for by the Plaintiff/Applicant forthwith.
   

______________________________________________
Motuwe Lawyers: Lawyer for the applicant/plaintiff
Nelson Lawyers: Lawyer for the respondent/defendants