Electoral Commission of Papua New Guinea v Polye [2018] PGNC 42; N7112 (8 August 2018)

N7112

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 874 of 2016

BETWEEN:
HON. RIMBINK PATO MP
Chairman of Wapenamanda District
Development Authority and Member
for Wapenamanda Open Electorate
First Plaintiff

AND:
WAPENAMANDA DISTRICT
DEVELOPMENT AUTHORITY
Second Plaintiff

AND:
NELSON LEIA
Director Village Courts Enga Province
First Defendant

AND:
ENGA PROVINCIAL
GOVERNMENT
Second Defendant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J.
2018: 12^th January

Application to dismiss or alternatively to transfer the proceeding

Cases Cited:

Kerry Lerro v. Stagg & Ors (2006) N3050

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144
Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Simon Ekanda v. Rendle Rimua (2015) N6174

Siu v. Wasime Land Group Incorporated (2011) SC1107
Takori v.Yagari & Ors (2008) SC905

Counsel:

Mr. D. Mel, for the Plaintiffs
Mr. L. Kandi, for the First and Second Defendants

12^th January, 2018

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding or alternatively to transfer this proceeding to another National Court.
   

Background

2. This is a dispute concerning the appointment of Village Magistrates in Enga Province. The two plaintiffs, the Wapenamanda District Development Authority, its Chairman and the Member of Parliament for the Wapenamanda Open Electorate seek declaratory relief to the effect that the first and second defendants, the Enga Provincial Government and the Village Court Director for Enga Province, do not have the power to appoint or recommend for appointment Village Court officials including Village Magistrates, and that the Minister for Justice and Attorney General has validly appointed various Village Court officials including Village Magistrates for the Wapenamanda Open Electorate and revoked previous appointments. Consequential permanent injunctive relief is also sought.
   

This application

3. The defendants submit that the proceeding should be dismissed as:
   

a) It is an abuse of process and does not comply with s. 37(3) District Development Authority Act 2014. Reliance is placed upon Order 12 Rule 40(1)(c) National Court Rules, s. 155(4) Constitution and this court’s inherent power;

b) The relief sought by the plaintiffs’ is misconceived;

c) Section 8 District Development Authority Act 2014 has not been complied with.

4. In the alternative the first and second defendants submit that the proceeding should be transferred to Wabag National Court as:
   

a) There is a resident National Court Judge based in Wabag;

b) All parties except the State are residents of Enga Province. Reliance is placed upon Order 10 Rule 2 National Court Rules and Practice Direction No. 1 of 1992.

5. The plaintiffs submit that the proceeding should not be dismissed as amongst others:
   

a) Section 37(3) District Development Authority Act 2014 has not been breached;

b) The proceeding is not an abuse of process;

c) The Enga Provincial Government does not have the power to appoint Village Magistrates and has not enacted relevant provincial legislation;

d) It is not in the interests of justice for this proceeding to be dismissed.

6. In regard to the alternative relief sought concerning the transfer of the proceeding, the plaintiffs submit that no evidence has been filed by the first and second defendants showing urgent and extra ordinary reasons warranting a transfer. Further, no evidence has been filed in support of this relief and so the application is defective as Order 4 Rule 44(1) National Court Rules has not been complied with.
   

Consideration

7. I will consider the application initially pursuant to Order 12 Rule 40(1)(c) National Court Rules. There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: 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 Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:
   

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

8. In this instance, the first and second defendants submit that the proceeding is an abuse of process as the dispute the subject of this proceeding is covered by s. 37(1) District Development Authority Act 2014. Consequently, it is submitted that this proceeding is prohibited by s. 37(3) as there has not been a failed mediation.
   
9. Section 37 District Development Authority Act 2014 is as follows:
   

“37. Dispute resolution.

(1) If there is a dispute between —

(a) the Chief Executive Officer and a Provincial Administrator; or
(b) the Chief Executive Officer and a Board member; or
(c) a Board member and the Provincial Government; or

(d) an Authority and any other government entity or State agency,

a party may bring the matter to the attention of the Minister and make a written submission to the Minister.

(2) The Minister shall consider the submission (if any) made by the parties to the dispute and may meet with one or more of those parties, together or separately, to mediate a solution to the dispute.

(3) Legal proceedings are not to be taken in relation to a dispute, unless mediation has been held but failed to resolve the dispute.”

10. The plaintiffs submit that a discretion is given to a party in s. 37(1) and to the Minister in s. 37(2). Whether s. 37(3) applies is dependent upon whether a party has brought a dispute to the attention of the Minister, and if it has, whether the Minister decides to mediate a solution to the dispute, and if he does, whether a mediation has been held, and if it has, whether the mediation has failed. Consequently it is submitted, it is not correct to assert as the first and second defendants do, that if the dispute in this proceeding is covered by section 37(1), that s. 37(3) prohibits legal proceedings unless there has been a failed mediation.
    
11. Both the first and second defendants and the plaintiffs rely upon the Supreme Court case of Joseph Kaiyo v. Paul Pawa (2015) SC1469 in support of their respective positions. Upon my reading of that case I have not found it to be of assistance to either side.
    
12. From a consideration of s. 37 District Development Authority Act 2014, I am satisfied that the submissions of the plaintiffs are to be preferred. It is clear that discretions are given and that until particular decisions of the parties and the Minister are properly considered, this court is not in a position to determine whether s. 37(3) is enlivened. Consequently, the first and second defendants’ submissions concerning this proceeding being an abuse of process as it contravenes s. 37(3), are rejected.
    
13. As to whether this proceeding is an abuse of process because the proper course for the plaintiffs to take is to commence proceedings by way of judicial review, from a perusal of the relief sought in the originating summons, I am not persuaded that what the plaintiffs are in essence seeking substantively, is to challenge a particular decision of a public official, body or entity.
    
14. As to whether s. 8 District Development Authority Act 2014 has been complied with, to my mind it can be argued that the requirements of s. 8 are directory and not mandatory. I refer to my decision in Simon Ekanda v. Rendle Rimua (2015) N6174 [27] to [29] and the cases cited therein in this regard.
    
15. Consequently for the above reasons, I am not satisfied that the proceeding should be dismissed as an abuse of process or that the proceeding is such that the plaintiffs should be driven from the judgment seat in a summary manner. Given this, it is not necessary to consider the other submissions of counsel as to whether the proceeding should be dismissed, apart from the first and second defendants’ reliance upon s.155(4) Constitution and this court’s inherent jurisdiction.
    
16. As to the reliance upon s. 155 (4) Constitution, I need do no more than reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:
    

“........is not the source of primary jurisdictional power. .........

Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.”

17. In addition, s. 155 (4) cannot be applied to do anything contrary or

inconsistent with the provisions of the National Court Rules: Louis Medaing

v. Ramu Nico Management (MCC) Ltd (2011) SC1144.

18. In regard to the reliance upon the inherent jurisdiction of the court, as I have already determined the application under Order 12 Rule 40(1)(c)

National Court Rules, it is not appropriate in my view to consider making a

different determination pursuant to this court’s inherent jurisdiction.

19. As to whether the proceeding should be transferred to Wabag National Court, the plaintiffs submit that as the first and second defendants have not filed any evidence in support of this alternative relief that they seek, their application for the alternative relief is defective for non-compliance with Order 4 Rule 44(1) National Court Rules.
    
20. It is the case that no affidavit setting forth facts upon which the

alternative relief sought in the first and second defendants motion is founded

has been filed. Order 4 Rule 44(1) National Court Rules requires by use of

the word “shall”, that such an affidavit be filed unless the court otherwise

orders. This court has not otherwise ordered and so Order 4 Rule 44(1)
National Court Rules has not been complied with. Consequently the first and second defendants application for the alternative relief is defective. The application for the alternative relief is therefore refused.

Orders

21. The formal Orders of the Court are:
    
    1. All of the relief sought in the notice of motion of the first and second defendants filed 9^th January 2017 is refused;
       
    2. The first and second defendants shall pay the plaintiffs’ costs of and incidental to the said notice of motion;
       
    100. The interim relief already granted in this proceeding shall continue until the further order of this court.

_____________________________________________________________
Mel & Hennry: Lawyers for the Plaintiffs
M S Wagambie: Lawyers for the First and Second Defendants