N7237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 653 of 2017

BETWEEN:
DICICEL (PNG) LIMITED
Plaintiff

AND:
ALEX TONGAYU 
as the Registrar of Companies
First Defendant

AND:
DIGIVOIP COMMUNICATIONS LIMITED
Second Defendant

AND:
DIGITEC PNG LIMITED
Third Defendant

Waigani: Hartshorn J.
           2017: 15th September, 
    2018: 19th March 

PRACTICE AND PROCEDURE - Application to dismiss proceeding – proceeding not pleading primary right, for being frivolous and vexatious and for abuse of process -  grounds of – plaintiff contests defendants application to dismiss - law concerning application under Order 12 Rule 40 National Court Rules discussed – defendants application upheld – proceedings dismissed – costs to be paid by defendants

Cases Cited:
Papua New Guinea Cases

PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85
United States of America v. WR Carpenters (Properties) Ltd [1992] PNGLR 185 Michael Gene v. Hamidian Rad [1999] PNGLR 444
Kerry Lerro v. Stagg & Ors (2006) N3050
Takori v.Yagari & Ors (2008) SC905 
Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906 
Rabaul Shipping Ltd v. Rupen (2008) N3289
Gabriel Yer v. Peter Yama (2009) SC996 
Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107
Puri Ruing v. Allan Marat (2012) N4672
Wan Global Limited v. Luxurflex Limited (2012) SC1199 
Bernard Kosie v. John Kapi Natto (2015) N6263
Obert Laka v. Stan Nekital (2016) N6557
Amos Ere v. National Housing Corporation (2016) N6515
Bernard Kosie v. John Kapi Natto (2016) unreported SCA 55/15 delivered 6/5/16

Overseas Cases

Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86

Counsel:

Mr. P. Lowing, for the Plaintiff 
Mr. L. Manua, for the Defendants

19th March, 2018

1. HARTSHORN J. This is a decision on a contested application by the defendants to dismiss this proceeding.

Background

2. The plaintiff seeks declaratory relief to the effect that the actions of the Registrar of Companies, the first defendant, to change the names of the second and third defendants was not proper and is therefore illegal for want of process under s. 24 Companies Act. Ancillary orders for permanent injunctions and in the nature of mandamus are also sought.

This application

3. The defendants’ submit that this proceeding should be dismissed pursuant to Order 12 Rule 40(1) National Court Rules and alternatively pursuant to s. 408 Companies Act as amongst others: 

a)	The plaintiff has not pleaded its primary right to seek the declaratory relief in the originating summons;

b)	Any controversy between the parties has not been pleaded and the issues are hypothetical;

c)	The decision of the first defendant that is being challenged is only amenable to appeal pursuant to s. 408 Companies Act, and so the proceeding is an abuse of process. The plaintiff should have exhausted its remedies under s. 408 Companies Act first;

d)	This proceeding is frivolous and vexatious as it cannot succeed.

4. The plaintiff submits that the defendants’ application for dismissal should be refused as:

a)	The originating summons sufficiently sets out the nature of the relief sought;

b)	The facts are undisputed. There is clearly an error of law committed by the first defendant in not complying with the Companies Act;

c)	There is not an abuse of process as the plaintiff is entitled to seek the 	declaratory orders it does pursuant to Order 4 Rule 3 National Court Rules, even when judicial review might be more appropriate;

d)	Section 408 Companies Act does not preclude this proceeding and as there is no provision prescribing how an appeal should be brought under s. 408 Companies Act, this proceeding can be considered an appeal by an aggrieved party.
Consideration

5. The law concerning an application under Order 12 Rule 40 National Court Rules is well settled and does not require repetition here. I make reference to Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. Further, notwithstanding all of the various judicial pronouncements since, the position is succinctly summarised in Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86. At 90-91 the Court of Appeal said:
“The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands, is insufficient, even if proved, to entitle the plaintiff to what he asks.”
6. During the hearing of the application I raised with counsel whether the relief sought in the originating summons was such that this proceeding should have been commenced by way of judicial review. Counsel for the plaintiff submitted that the plaintiff was entitled to bring this proceeding in the manner that it has been commenced and by seeking the relief that it does. Counsel for the defendants submitted that the relief claimed should have been brought by way of judicial review. I note also that the plaintiff has made reference to this issue in its written submissions. In any event this court has inherent power to dismiss proceedings which are an abuse of process: PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85, and is able to dismiss a proceeding of its own volition: United States of America v. WR Carpenters (Properties) Ltd [1992] PNGLR 185. I consider this issue first.
7. The first and primary declaration that the plaintiff is seeking concerns the actions of the first defendant in directing and authorising the subject change of names. The declaration seeks that the direction and authorisation are improper and of no effect for lack or want of process. This in essence is challenging the decision or decisions of the first defendant that he has purportedly made pursuant to the Companies Act. Further, the first declaration is in effect seeking to achieve what should be achieved by seeking orders in the nature of certiorari, after applying and being granted leave for judicial review. The practical effect of the first declaration, if granted, would be that the decision or decisions of the first defendant about which complaint is made, would be quashed.
8. The argument is that as in reality what is being sought are orders in the nature of certiorari but disguised as declarations, Order 16 Rule 1 (1) National Court Rules requires this proceeding to have been commenced pursuant to Order 16. That it was not constitutes an abuse of process. This is particularly so, as by not commencing the proceeding pursuant to Order 16, leave to apply for judicial review has not been sought.
9. I considered this issue in Puri Ruing v. Allan Marat (2012) N4672 and Wan Global Limited v. Luxurflex Limited (2012) SC1199 (see also Obert Laka v. Stan Nekital (2016) N6557; Amos Ere v. National Housing Corporation (2016) N6515 and Bernard Kosie v. John Kapi Natto (2015) N6263, an appeal from which was refused in Bernard Kosie v. John Kapi Natto (2016) unreported SCA 55/15 delivered 6/5/16).
10. In Ruing v. Marat (supra), after referring to the Supreme Court cases of Michael Gene v. Hamidian Rad [1999] PNGLR 444 and Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906, I referred to the following observations of Lay J. in Rabaul Shipping Ltd v. Rupen (2008) N3289. At paragraph 7 His Honour said the following with which I respectfully agree:
 “If this were a case where the Court was being asked to declare wrong a decision of a tribunal exercising a discretion I would have great difficulty in accepting that an ordinary summons was the appropriate procedure because in those circumstances the only purpose of such a declaration is to quash the decision of the tribunal given the statutory authority to make the decision. That is an order in the nature of a prerogative writ by another name…”
11. I then said that in my view in the case before me:
“… the only reason for the declaration that is sought in this instance is to quash the decision of the Head of State made on the advice of the NEC. That is, for this court to review that decision and then to quash it. So although the plaintiffs are not seeking an order for certiorari, they are seeking an order in the nature of, or similar to, certiorari. Pursuant to Order 16 Rule 1 (1) National Court Rules, an application for an order in the nature of certiorari shall be made by way of an application for judicial review in accordance with Order 16 National Court Rules. It is mandatory. Such an application has not been made in this instance. The application that has been made is by originating summons pursuant to Order 4 and constitutes an abuse of the process of this court as it has been commenced incorrectly.”
12. The first plaintiff cites the Supreme Court cases of Telikom PNG Ltd v. ICCC (supra) and Gabriel Yer v. Peter Yama (2009) SC996. In Telikom (supra), although the majority found that Telikom had a choice as to the mode of commencement of proceedings, this was after considering the substance of what Telikom was seeking and finding that the substance was confined to declarations and injunctions. The Court stated however, that it agreed that a court should look at the substance as well as the wording of the relief being sought to determine what the applicant was actually seeking. In Yer v. Yama (supra), the Court also stated at [22] that it is necessary, when determining what mode of commencement is necessary, to look at the substance as well as the wording of the orders being sought.
13. Then at [23] the Court said:	 
“23.     If in substance the plaintiff is not seeking one of the prerogative writs such as mandamus it will not be necessary to use an Order 16 originating summons. If all that the plaintiff is seeking is a declaration or an injunction than even where the defendant is a governmental body or public authority an Order 16 originating summons will not be necessary and the plaintiff will not have to obtain leave for judicial review. An Order 4 originating summons will be sufficient (Telikom PNG Ltd v ICCC & Digicel (PNG) Ltd (2008) SC906). Similarly, if in substance the plaintiff is seeking orders to enforce private law rights under a contract rather than rights or obligations arising under public law, an Order 16 originating summons will not be necessary and the plaintiff will not have to obtain leave for judicial review (Frederick Martins Punangi v Sinai Brown, Minister for Public Service (2004) N2661; Mision Asiki v Manasupe Zurenuoc (2005) SC797).”
14. In this instance, in substance, the practical effect of the first declaration particularly, if granted, is that the subject decision or decisions of the first defendant would be quashed. The plaintiff in substance, is seeking an order in the nature of certiorari. I am satisfied that the declarations sought by the plaintiff are in substance or in effect achieving what should be achieved pursuant to Order 16 National Court Rules. That is that orders in the nature of certiorari should have been sought. To apply for such orders, Order 16 Rule 1 (1) makes it mandatory for an order in the nature of amongst others, certiorari to be made by an application for judicial review. This could only occur if an application for leave for judicial review has been successful. As this proceeding should have been commenced pursuant to Order 16 National Court Rules but was not, and as commencement of such a proceeding is mandatory, the proceeding is an abuse of the process of this court and should be dismissed.
15. Given this it is not necessary to consider the other submissions of counsel apart from costs. The defendants’ seek their costs on an indemnity basis. I am not satisfied that they have satisfied the necessary requirements in that regard.
Orders
16.    The formal orders of the Court are:
a)	This proceeding is dismissed;
b)	The plaintiff shall pay the costs of the defendants’ of and incidental to this proceeding on a party to party basis;
c)	Time is abridged.
__________________________________________________________________   
Leahy Lewin Lowing Sullivan:  Lawyers for the Plaintiff                     
Rageau Manua & Kikira:  Lawyers for the Defendants