Rageau v Kina Finance Ltd [2015] PGNC 269; N6175 (16 December 2015)

N6175

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 253 of 2015

BETWEEN:

DR. ONNE RAGEAU
Plaintiff

AND:

KINA FINANCE
LIMITED
Defendant

Waigani: Hartshorn J
2015: 18th August,
: 16th December

Application to dismiss the proceeding

Cases cited:

Papua New Guinea Cases

Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported
National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 2) [1988-89] PNGLR 425
Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278
Tolom Abai v. The State (1995) N1402
Titi Christian v. Rabbie Namaliu (1996) unreported OS No. 2 of 1995, 18.7.06
TS Tan v. Elcom (2002) SC683
Bougainville Copper Ltd v. Commissioner General of Internal Revenue and Chief Collector of Taxes (2008) N3331
Simon Ekanda and Ors v. Rendle Rimua and Ors (2015) N6174

Overseas Cases

The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438
Counsel:

Mrs. M. Saroa, for the Plaintiff
Mr. D. Bidar, for the Defendant

16th December, 2015

1. HARTSHORN J: This is a decision on an application to dismiss the proceeding by the defendant and an application by the plaintiff to file a statement of claim.

Originating Summons

2. The plaintiff commenced this proceeding on 12th May 2015 by originating summons, and seeks amongst others declaratory relief in regard to an alleged purchase price of K1.8 million for a property and in regard to the calculations and assessment of the debt due by the plaintiff to the defendant. The plaintiff claims amongst others that the alleged purchase price and the calculations of the debt due are incorrect.

Application to dismiss

3. I now consider the dismissal application as it was filed first in time. The defendant applies for the proceeding to be dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious and an abuse of the process of the court pursuant to Order 12 Rule 40 and Order 12 Rule 1 National Court Rules.

4. The defendant submits that the proceeding should be dismissed as:

a) the originating summons does not disclose a reasonable cause of action on its face;

b) the proceeding is also frivolous and vexatious and an abuse of process of the court as the plaintiff is estopped pursuant to the doctrine of res judicata from raising issues concerning the debt owed to the defendant as these have been determined by a judgment in another proceeding;

c) there is no utility or purpose in this proceeding;

d) the plaintiff does not come to court with clean hands.

5. The plaintiff submits that:

a) the originating summons is properly before the court;

b) its purpose is to question how the judgment in the other proceeding was complied with;

c) he is aggrieved as to the calculation of the debt and interest ordered in the judgment.

Consideration

6. The relief sought in the originating summons is:

"1. A Declaration pursuant to the inherent jurisdiction of the Honourable Court and Section 155 (4) of the Constitution, that the purchase price of the Property known as State Lease Volume 8 Folio 1808 and described as Section 51 Allotment 61, Granville, Touaguba, Port Moresby, National Capital District in the sum of K1.8 million referred to in letter (sic) dated 5 May 2015 is not the current market price of the Property and grossly undervalued.

2. A Declaration that the calculations and assessment of the debt due and owing by the Plaintiff to the Defendant under letter of offer dated 12 January 2010 and executed on 13 January 2010 between the Plaintiff and the Defendant (the Agreement) is grossly miscalculated and is:

(i) Harsh and oppressive pursuant to Section 41 (1) (a) of the Constitution; and

(ii) is tantamount to deprivation of property pursuant to Section 57 of the Constitution."

7. As to the doctrine of res judicata, I gave consideration to it in Bougainville Copper Ltd v. Commissioner General of Internal Revenue and Chief Collector of Taxes (2008) N3331 and recently in Simon Ekanda and Ors v. Rendle Rimua and Ors (2015) N6174. I referred to the doctrine being recognised in Schedule 2.8 (1) Constitution, and to the Supreme Court case of Titi Christian v. Rabbie Namaliu (1996) unreported OS No. 2 of 1995, 18.7.06, and the two National Court decisions of Tolom Abai v. The State (1995) N1402 and Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported. In Herman Gawi (supra), Bredmeyer J. reproduced the following passage from The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed p1, as in his view it stated the law clearly and succinctly:

"In English jurisprudence a res judicata, that is to say a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is twofold. In the first place, the judicial decision estops or precludes any party to the litigation from disputing against any other party thereto in any other litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment decree or order necessarily established as the legal foundation or justification of the conclusion reached by the Court. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. Transit in rem judicatam. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies."

8. Bredmeyer J. goes on to consider consider the six probanda postulated by Turner, all of which must be established by the party setting up res judicata. For our purposes they are:

a) was the earlier decision a judicial decision?

b) was the judicial decision pronounced?

c) did the judicial tribunal have competent jurisdiction?

d) was the judicial decision final?

e) did the judicial decision involve a determination of the same question?

f) are the parties the same?

9. In this instance, the second declaration sought concerns the amount of the debt due by the plaintiff to the defendant. In evidence in the plaintiff's own affidavit, is a copy of the writ of summons and statement of claim in proceeding WS 1141/14 and the Order in that proceeding by which default judgment was entered against the plaintiff in this proceeding. A perusal of the statement of claim confirms that it specifically pleads the letter of offer referred to in the second declaration sought in this proceeding and amongst others that the plaintiff defaulted on the repayment of the loan. The particulars of what the defendant alleges is owing and the interest are also set out in the statement of claim.

10. When the six probanda referred to above are considered in relation to the second declaration, it is clear that they are all satisfied. Specifically as to whether the judicial decision in WS1141/14 involved a determination of the same question, I am satisfied that it did as it determined amongst others, that the plaintiff owed the debt to the defendant and the amount. The plaintiff cannot now advance argument or adduce evidence to the contrary. Consequently for the above reasons the doctrine of res judicata is applicable here and for the plaintiff to seek the relief that it does in the second declaration is an abuse of process.

11. As to the remainder of the originating summons, in the first declaration sought, it simply is that the purchase price in a letter of a property is not its current market price and is a gross undervalue. There is no claim in the originating summons for instance, as to any entitlement to the property or to possession of the property or that the property cannot be sold, or any particulars concerning the allegation of gross undervalue. As stated by Sheehan J. in Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278, it is no answer to say that the affidavits in support make such a claim. No cause of action is disclosed.

12. Further, no consequential relief is sought in the originating summons. As to this requirement, I refer to the statement of Kapi DCJ (as he then was) in Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 2) [1988-89] PNGLR 425 at 428 where his Honour said that in his opinion an objection may now be made to a mere declaratory order on the basis that it does not seek any consequential relief.

13. Another aspect is that as judgment has already been entered in respect of the defendant's claim against the plaintiff in WS 1141/14, the issues that the plaintiff seeks to litigate are of academic interest only. That no consequential relief is sought, supports this view. In this regard I refer to the celebrated case of The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438, referred to in Ok Tedi Mining Ltd v. Niugini Insurance Corporation & Others (No. 2)(supra). This case sets out the factors that are required to be established before a declaratory order can be made. These factors include that there must exist a controversy between the parties and the issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.
14. Lastly, the relief that is sought in the originating summons in my view, falls within the category referred to in the Supreme Court decision of TS Tan v. Elcom (2002) SC683 and the National Court decisions of National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Ok Tedi Mining Ltd v. Niugini Insurance Corporation (supra). That is, it is relief that will not resolve all of the issues between the parties and it is not relief that will finally settle the real dispute between the parties. The issues between the parties concerning the loan from the defendant to the plaintiff, the default, the amount owed and the relief have been determined in proceeding WS 1141/14. On the authority of these decisions, in my view, the declaratory relief sought is an abuse of process.
15. Consequently for the above reasons, I am satisfied that the defendant is entitled to the relief that it seeks in its notice of motion. Given this it is not necessary to consider the other submissions of counsel and the application of the plaintiff to file a statement of claim.

Orders

16. The Orders of the Court are:

a) This proceeding is dismissed.

b) The plaintiff shall pay the defendant's costs of and incidental to this proceeding.

c) Time is abridged.

_____________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiff
O'Briens Lawyers: Lawyers for the Defendant