Kua v Wotne [2018] PGNC 36; N7089 (26 January 2018)

N7089

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 400 of 2013

BETWEEN
PHILIP PAITO KUA
Plaintiff

AND
SANDRA WOTNE
First Defendant

AND
BENJAMIN SAMSON as DEPUTY REGISTRAR OF TITLES DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
THE STATE
Fourth Defendant

Kimbe: Miviri AJ
2018: 19^th & 22^nd January

PRACTISE & PROCEEDURE - Application of plaintiff discontinue proceedings-first defendant application to discontinue for want of prosecution- no appearance plaintiff-first defendant in person in court-second, third, fourth defendants no appearance-application of S59 Constitution-allegation of fraud-meaning of fraud equity-application refused-each party to bear costs.

Cases cited:

Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001
Karl Paul & Aruai Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority N2085 delivered on 17^th April 2001
Kunkene v Rangsu [1999] PGNC 80; N1917
Rooney No.2 Public Prosecutors v [1979] PNGLR 448
Tiaga Bomson v Kerry Hart (2003) N2428

Counsel:

No appearance Plaintiff Applicant
First Defendant in Person
No Appearance for Second Third & Fourth Defendants

RULING

26^th January, 2018

1. MIVIRI, AJ: This is the ruling of the Court on an application by Notice of Motion filed the 19^th October 2017 by the First Defendant in person before me seeking pursuant to order 12 rule 1of the National Court Rules, “ncr”, to dismiss this proceeding for Want of Prosecution. And also pursuant to Order 8 Rule 27 which is as to embarrassment disclosure of no reasonable cause in the action itself or defence or as disclosed by the pleadings. And what is set out is merely to embarrass, prejudice or delay and therefore an abuse of the process of court.
   
2. And Order 12 Rule 40 is as to frivolity, no reasonable cause of action disclosed, that the proceedings are frivolous vexatious and an abuse of process and it is discretionary that the court may stay or dismiss the claim or proceedings upon receiving evidence on the same that the action be dismissed as improper without any merit and abuse of court process.
   
3. Order 12 is headed Judgements and Orders and rule 1 general relief is in this terms: “The Court may, at any stage of any proceedings, on application of any party, direct the entry of such judgements or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process”.
   

Evidence

4. She has filed an affidavit of service document 16 sworn 17^th October 2017 filed the 19^th October 2017. Where she contends principally that the Plaintiff has done nothing to further progress the matter after her intention to defend filed 19^th August 2013. And she attaches as annexure “A” forewarning letter that she will make an application to dismiss the entire proceedings for want of prosecution. This is confirmed as been served by Nelson Mokae who has deposed an affidavit dated the 23^rd October 2017 that he served the letter on Public Solicitors who were acting for the plaintiff. He attaches as annexure “A” the delivery docket evidencing it as signed by Reina Pasisi, Legal Secretary of Public Solicitors on the 19^th October 2017.
   
5. Neither today 19^th January 2018 the plaintiff has not appeared nor his lawyer despite that service. He instituted the proceedings since the 25^th July 2013 and further adjournment to the 22^nd January 2018 did not see his appearance or his lawyers from Public Solicitor’s office. First defendant has appeared pursuant to a letter which was from the court registry advising of the hearing date.
   

Originating summons

6. The claim itself by the Plaintiff alleges fraud on the part of the Defendants including the First Defendant in the way that the subject land has been transferred. I perused the claim in which there is an affidavit sworn dated the 7^th August 2013 and filed the 13^th August 2013 where a medical certificate of death is attached as annexure “A” of that affidavit which is to the effect that Peter Kua father of the plaintiff was alive on 05^th May 1997 and that he died at 5.00am on the 07^th May 1997 at Kapore medical centre. The cause of death was cardiopulmonary arrest and cardiac failure. And the medical officer is Health Extension officer John Sipto.
   
7. And annexure “B” of this affidavit is Titles office worksheet which shows the lodgement of the transfer as being on the 29^th April 1999 and entered on the 9th July 1999. And the Transfer is also attached and shows its date as 22^nd January 1999 which is allegedly signed by Peter Kua in the presence of Philip Kua relating to the subject land portion 256 Kapore section 1 WNBP. In the place where Peter Kua has purportedly signed is an X mark made out with a signature by witness allegedly.
   
8. I adjudge that there is fraud demonstrated here and this court has refused applications of default Judgment and discontinuance against parties applying and granted a full hearing to settle to accord justice in accordance with Section 59 of the Constitution that justice must be done and seen to be done. I see no injustice to grant the same here considering that this is the principle issue under this cause of action and must be properly argued and settled for justice to be accorded to the parties. It is not Default Judgement but withdrawal and discontinuance by the Plaintiff and frivolity and vexatiousness by the First Defendant and abuse of process which all in my view the principles of justice underlying are common being not of right but discretionary by read of the rules. Order 12 Rule 32 also likened to the read of the Order12 Rule 40.
   
9. And a number of cases demonstrate this: Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, where fraud and deceit came out and the interests of justice required that the matter go to trial to be proven by evidence. Application for default judgement was refused basing on Kunkene v Rangsu [1999] PGNC 80; N1917 (18^th September 1999). Default judgment was refused because the defence though late when filed was meritous and the matter was in the use of the court’s discretion allowed to go to full trial: Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001. The statement of claim amounted to abuse of process and the motion for default Judgement was refused: Tiaga Bomson v Kerry Hart (2003) N2428 where defence was filed outside time but had merit and so application for default judgement was refused with costs.
   
10. The definition of what is actual as opposed to fraud at equity and its application is adequately discussed and set out in Re O ‘Dwyer [2007] PGNC 62; N3226 (14^th June 2007) which I consider applicable here and I apply here. It concerned the application and enforcement of foreign judgements here but the principles are applicable in the situation before me given the facts and circumstances demonstrated here.
    

Issue

11. I ask myself should the non appearance of the Plaintiff or his lawyer prompt that the matter be adjourned further even without hearing from them except the first defendant in person who has argued as set out above.
    

Relevant case Law

12. To answer I adopt what Justice Injia as he then was in Karl Paul & Aruai Kispe and the Regional Manager PNG forest Authority Lae and PNG forest Authority (2001) N2085 delivered on 17^th April 2001 in Lae, where he said;

"The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case."

13. Where the Justice Minister had published in public media statements that she had no confidence in the chief Justice and other Judges she was cited and jailed for contempt, Rooney No.2 Public Prosecutors v [1979] PGSC 23; [1979] PNGLR 448 . Extended from this is the very wide discretion vested in the Court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court (O.12 R.40) or the documents filed in court is scandalous, irrelevant or otherwise oppressive (O.2 r.29) or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O.1 r.1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party."
    

Facts here

14. Here the history of the matter originates from an Originating Summons that was filed in 25^th July 2013 by the Plaintiff in pursuit of orders under Order 14 Rule 10 preservation of property, allegations of impropriety and fraud, and Rule 15, which is inapplicable as it relates to the commencement of proceedings by writ of summons not an originating summons as here. The First Defendant filed a Notice of Intention to Defend on the 19^th August 2013. The latest document on the matter from the Plaintiff is an affidavit filed 17^th November 2017 including a notice of objection that his application in the substantive matter notice of motion dated the 22^nd September 2014 for leave to discontinue the proceedings and for leave to file a Writ of Summons and a statement of claim to plead his claim. It is dated the 14^th November 2017.
    
15. In other words the originating process is not right and so he seeks leave to withdraw and file a Writ of Summons in the matter. And he does so after consultation with a lawyer which was not the case on record when he instituted the proceedings by Originating Summons. But by his actions he has drawn the First Defendant to incur costs, time, and anxiety to defend these proceedings. It is now four years since 25^th July 2013 to today’s institution of the proceedings by the Plaintiff. But he has not done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or has done some wrongful act in the course of the transaction of which the Plaintiff complains, as in Sengero v Wenge, Governor Morobe Provincial Government [2001] PGNC 63; N2152.
    
16. What is set out by these facts show that the Plaintiff has after consultation with a lawyer been advised to pursue his cause by writ rather than originating summons so that he can properly plead fraud alleged. He has to discontinue and withdraw the originating summons and institute with a writ. That is not the same as being unprofessional either by the conduct of the lawyer or the client so as to be considered improper or unreasonable such that it should be punished by costs on a lawyer-client basis or on an indemnity basis. Or of the grant of the application as here by the first defendant. That being not the case I do not consider given that the motion of the First Defendant be allowed, rather the contrary.
    
17. I consider the general rule that the costs follow the event that an unsuccessful party should pay the successful party’s costs. Here the substantial matter remains intact but the motion of the First Defendant is not granted. It is not the case pursuant to Order 22 r17 (1) where Plaintiff who discontinues his action without leave of the court and is therefore an unsuccessful party and he must pay the successful defendant’s costs "unless the Court orders otherwise".
    
18. That is not the case here; I find no reason to grant the application made by the first defendant ex parte rather that the parties be heard inter-parte. I further find that he has not done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or has done some wrongful act in the course of the transaction of which the respondent complains with material backing.
    
19. Accordingly I deny the application made by the First Defendant and order that the Plaintiff now represented by the office of the Public Solicitor appear at the next calling of this matter and to properly argue the matter substantially and resolve issue raised. In my view it would be in the interest of both parties that the matter is properly before the court and the substantial issue before the court is properly argued and settled as is demanded by justice in the case. Given this the matter must proceed to the registry for a time and date to be fixed in close consultation with the parties for the issue to be addressed and settled.
    
20. In respect of costs as there is no material to sway otherwise and so in consideration of all, I consider that this is a case in which both parties share the blame for the events which brought about these proceedings: see Papua New Guinea Coffee Industry Board v. Panga Coffee Factory Ltd [1990] PNGLR 363. Therefore, it would not be fair to order the unsuccessful plaintiff to pay the successful defendant’s costs or vice versa. I consider that each party should bear their own costs. I order that each party bear their own costs of the proceedings.
    
21. Motion of the defendant is denied, the matter is to return to the registry for time and date to be allocated in close consultation with the parties to argue and to settle the issues raised in the interlocutory matter as to the mode of commencement of the proceedings and the substantive issue raised.
    

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor : Lawyer for the Plaintiff/Applicant

Justin Talopa Lawyers : Lawyer for the First Defendant