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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 58 of 1989
BETWEEN:
JACK WAGAMBIE, JOSEPH KUPO appointed representatives for and on behalf of 522 re-trenched members of the Papua New Guinea Defence
Force
Plaintiffs
AND:
BRIGADIER GENERAL ROCKUS LOKINAP, Commander of Papua New Guinea Defence Force
First Defendant
AND
STEVEN MOKIS, Secretary for the Department of Defence
Second Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
Waigani: Anis J
2019: 18, 21 October, 8, 13 November
MOTION TO DISMISS – Order 12 Rule 40(1) – National Court Rules – alleged gross abuse of the court process –
existing proceedings – whether current proceeding duplicity
MOTION TO SANCTION ADR AGREEMENT – Rule 12 - ADR Rules - whether alleged document sufficient to constitute an agreement within
the meaning of Rule 12
PRACTICE AND PROCEDURES – whether faction of purported plaintiffs properly joined as parties to the proceeding – Order
5 Rules 2, 3, 4 and 8 – National Court Rules
Cases cited:
Belden Nama v. Justice Goodwin Poole (2015) N6121
Ted Taru v. Pacific MMI Insurance Ltd (2016) N6305
Totil Kupai v. Million Plus Corporation Ltd (2017) N6669
Counsel:
Ms M Wal, for the 188 Plaintiffs
Mr J Kupo, for the alleged 453 Plaintiffs
Mr D Levy, for the Defendants
RULING
13 November, 2019
1. ANIS J: Three (3) applications returned before this Court and they were heard on 18 and 21 October 2019. The first application was the defendants’ where they have sought, amongst others, dismissal of the proceeding. The second and the third applications were related and they were by the plaintiffs to, amongst others, enforce a purported mediation agreement.
RELEVANT BACKGROUND
3. Initially, a total of 522 retrenched servicemen from the Papua New Guinea Defence force commenced this action against the defendants. They claimed various alleged entitlements including ex-gratia, re-settlement allowances, hardship allowances, money in lieu of notices and money in lieu of furlong leaves and recreation leaves. The history of the case is quite a long one. For this purpose, the matter later progressed to mediation in May of 2009. Parties were directed to prepare and submit what was called Position Papers to the mediator. The mediation was stalled for some time because of various reasons including slowness by the defendants in submitting their Position Paper. I take the term Position Paper to mean or cover submissions on liability and quantum of the parties’ respective positions to the claim.
4. In May of 2010, the defendants recommenced negotiations with the plaintiffs. Various consultative meetings were held. The defendants’ team requested the plaintiffs to prepare and submit their quantum to the defendants to consider. Later, the National Executive Council (NEC) in its meeting No. 159/2010 approved payment based on the meetings, submissions and recommendations that had been put forward by the defendants to it. Consequently, the defendants, from a total of 522 plaintiffs in this proceeding, paid 334 plaintiffs plus other ad hoc groups as per the NEC decision.
5. The balance of the 522 plaintiffs, namely, 188 were aggrieved by the decision of the NEC or the defendants to exclude them out of the above payment. The 188 plaintiffs returned back to the National Court to pursue the matter. When that happened, another group of alleged ex-servicemen who had joined and involved themselves during the mediation negotiations, made appearances together with the 188 plaintiffs of this proceeding. Mr Kupo has since been appearing on behalf of these persons who are 453 or 454 in total.
6. On 1 April 2015, this Court made the following orders:
(i) WS No. 1503 of 2014 – Joseph Kupo&Ors v. The State and Ors;
(ii) WS No. 316 of 2015 – John Kiriniam&Ors v. The State and Ors; and
(iii) WS No. 1507 of 2015 – Noah Kimai& James Nahshon v. The State and Ors.
7. The defendants were aggrieved and so they appealed the said decision to the Supreme Court. The appeal was heard on 29 June 2016. On 4 May 2018, the appeal was upheld. The Supreme Court quashed the National Court’s decision of 1 April 2015. The Supreme Court held that the respondent’s notice of motion of 19 March 2015, which had been pending before the trial Court on 1 April 2015, was not heard and considered by the trial Court. As such, it held that the defendants’ right to be heard was breached. In its order, the Supreme Court ordered the matter to be referred back so that the said pending application may be heard before a different judge. The Supreme Court held and I quote in part,
The appeal is allowed.
The orders of the National Court made on 1 April 2015 are quashed.
The matter is remitted back to the National Court before a judge other than then judge whose orders are the subject of this appeal;
Each of the following proceedings shall be assigned to a judge other than the judge whose orders are the subject of this appeal;
(a) WS No. 1503 of 2014 – Joseph KupoOrs –v- The State &Ors;
(b WS N0. 316 of 2015 – John Kirininam –v- The State &Ors; and
(c) WS No. 1507 of 2014 – Jonah Kimai& James Nahshon–v- The State and Ors
The appellants are at liberty to re-list their amended notice of motion filed on 19 March 2015 in the proceeding below.
8. The matter returned back to the National Court. On 13 May 2019, this Court dismissed the defendants’ notice of motion of 19 March 2015 for want of prosecution. The notice of motion had sought orders to essentially dismiss the proceeding on the basis that this Court was functus officio. The defendants had wanted or argue, amongst others, that they had already paid K2.5 million to the 188 plaintiffs pursuant to a Consent Order of 3 December 1993.
9. Let me now deal with the 3 applications.
THE 3 MOTIONS
10. The motions before this Court may be summarized as follows. The first was filed by the defendants on 19 June 2019. The main relief they seek is to dismiss the entire proceeding on the basis of gross abuse of the process, that is, pursuant to Order 12 Rule 40(1) of the National Court Rules.
11. The plaintiffs filed two (2) motions which are similar in nature. The motion by the 188 plaintiffs was filed on 18 September 2019. The other motion was filed earlier by a group of persons totaling 453, who are represented by Mr Kupo, on 9 September 2019. The main relief the plaintiffs seek in the two (2) motions is for this Court to enforce a purported ADR agreement which they claim exists between the defendants and the plaintiffs. They are seeking the relief pursuant to Rule 12(2)(a) and (3) of the Accreditation, Regulation and Conduct of Mediators Rules 2010 (ADR Rules).
PRELIMINARY ISSUE
12. It was not until towards the conclusion of the submissions that I had asked Mr Kupo and Ms Wal of how it was that Mr Kupo’s group of 453 persons were joined as part of the plaintiffs in this proceeding. The response I received, I must say, was surprising.
13. Ms Wal informed the Court that she was unable to assist on the issue of joinder and she said that that was a matter for Mr Kupo to answer for those persons that he claims to represent. Mr Kupo is a lay person. But I note that he has involved himself in the matter for decades now and as such appears to have a clear understanding of its history. Having said that, he has not assisted the Court to say how he and the group that he represents came to be as parties to this present proceeding.
14. It later became clear that Mr Kupo’s group which comprised of the 453 persons, appeared to exist after the matter had been referred to mediation in 2009. They appear to be part of the various groups of persons who had attempted negotiations with the defendants. As such and when the negotiations failed, they also appeared with the 188 plaintiffs in the National Court on various occasions. I note that their representation or status as a party to the proceeding has never been raised in the earlier proceedings. The defendants’ counsel also question their appearance in this proceeding. Counsel submitted that the defendants were at lost as to how Mr Kupo and his group have purportedly joined into this proceeding. Counsel also raised concern that their exact numbers appear to change from time to time.
15. This is the National Court. The governing rule for this Court is the National Court Rules. There are processes for joinder if a person wishes to be joined or be added as a party to a proceeding. See cases: Totil Kupai v. Million Plus Corporation Ltd (2017) N6669; Belden Nama v. Justice Goodwin Poole (2015) N6121. And unless the person observes the Court Rules, he or she shall not be permitted to appear or be heard in the proceeding. Let me refer to the provisions of Order 5 of the National Court Rules. Rules 2, 3, 4 and 8 read, and I quote in part,
2. Joinder of parties generally. (8/2)
Two or more persons may be joined as plaintiffs or defendants in any proceedings —
(a) where —
(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave to do so.
3. Joint right. (8/3)
(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him —
(a) all persons so entitled shall be parties to the action; and
(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.
(2) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.
4. Leave under Rules 1, 2 and 3. (8/4)
(1) The Court may grant leave under Rule 1 or 2 before or after the joinder and may grant leave under Rule 3(2) before or after the non-joinder.
(2) A plaintiff may apply for leave under Rule 1, 2 or 3(2) before or after filing his originating process and may apply without serving notice of the motion on any person on whom the originating process has not been served.
8. Addition of parties. (8/8)
(1) Where a person who is not a party —
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
(2) A person shall not be added as plaintiff without his consent.
......
16. Mr Kupo nor Ms Wal have drawn my attention to Order 5 and to say whether the 453 persons have been joined based on the said rule. The plaintiffs have also not pointed to any valid court order which may have allowed the inclusion of the 453 persons. The joinder process is vital in a proceeding. Amongst the reasons is the necessity to format or re-organise the pleadings which may be affected as a result of a joinder. This is to, amongst others, ensure or prepare matters for trial. In this case and without any legal foundation or order from the Court, I am not satisfied that Mr Kupo and the 453 persons that he claims to represent are proper parties to this proceeding.
17. I find that the 453 persons whom Joseph Kupo claims to represent are not parties to this proceeding. This Court will not hear them further in relation to their notice of motion or in relation to this proceeding. Mr Kupo must excuse himself from the bar table.
ISSUES
18. With my above ruling, I note that I now have two (2) motions to deal with. The main issues are as follows, (i), whether the claim by the plaintiffs are a gross abuse of the Court process, and subject to the Court’s findings, (ii) whether there exists an ADR agreement as alleged by the plaintiffs, and if so, whether this Court should endorse it.
COMMON GROUND
19. Both parties agree that the three (3) related proceedings, namely, WS No. 1503 of 2014, WS No. 316 of 2015 and WS No. 1507 of 2014 are pending. In my view, the best place to begin is to take note of the plaintiffs’ counsel’s submission in her extract of submission dated 16 October 2019. At page 2, paragraphs 2.1.1 and 3.1.2, the plaintiffs submit,
In response to the first term of the Defendants’ motion, we submit that Plaintiffs have not re-instituted the proceedings in OS No. 58 of 1989 which now runs concurrently with three National Court proceedings (WS No. 316 of 2015, WS No. 1507 of 2014 and WS No. 1503 of 2014). We concur that there is duplicity of proceedings but it was the Supreme Court in the proceedings of SCA No. 52 of 2015 who reinstated OS 58 of 1989.
On the 1st of April 2015, Justice Kandakasi in this proceeding ordered that OS 58 of 1989 be discontinued in place of three other National Court proceedings as they all dealt with the same issues.
(Underlining mine)
20. I note during the hearing that Ms Wal agreed that the plaintiffs have better pleaded their claims in the related proceedings than in this proceeding. The plaintiffs agree that this proceeding and the 3 related proceedings are duplicities. However, based on their submissions, I note that they say that it was not their fault but rather that it was the defendants’ doing that had led the Supreme Court to revive the present proceeding, therefore, they say that they cannot be accused of or be blamed for being responsible for the duplicity in the present proceeding.
21. I find the plaintiffs’ argument not convincing. In my view, the action by the defendants in appealing the trial Court’s decision of 1 April 2015 is of no consequence to the question of whether there is duplicity of proceedings. It may, however, be relevant say in relation to argument on costs if the Court dismisses the proceeding.
22. Based on the submissions by both parties on point, I find that with the already 3 existing proceedings on foot, it is an abuse of the Court process to continue to maintain the present proceeding. I also accept the submission by the plaintiffs that it was based on the actions of the defendants that this proceeding has been kept alive, that is, because of their appeal challenge and the decision of the Supreme Court. But I also note this. The Supreme Court had ordered that this proceeding be kept alive purposely or primarily so that the defendants may pursue its pending notice of motion of 19 March 2015 (essentially seeking orders to dismiss the proceeding on the basis that this Court was functus officio) which had been the subject of their successful appeal. The defendants never got to move their said motion despite successfully obtaining orders from the Supreme Court to do so, and it was, as stated above, dismissed for want of prosecution on 13 May 2019. In my view, that should have been the conclusion of this proceeding. The notice of motion of 19 March 2015 was the only matter which the Supreme Court had found had not been addressed by the trial Court on 1 April 2015. I note that the Supreme Court, in its decision, has also ordered the 3 related proceeding to be heard before a different judge.
23. But the plaintiffs’ submission does not just stop at blaming the defendants from protracting this proceeding by its appeal. It now plans, with its current notice of motion, to request the Court to sanction a purported ADR agreement which they claim has been validly entered between the parties. Let me deal with that.
ADR AGREEMENT?
24. The basis of the plaintiffs’ claim under this sub-heading is Rule 12(2)(a) of the ADR Rules. It reads, and I quote in part,
(1) Where in the course of a mediation, the parties agree on a resolution of all or part of the proceedings, the agreement shall be written down and signed by or for each party.
(2) Any party to a mediation conducted by a mediator may apply to the Court for an order giving effect to an agreement reached during the mediation by:
(a) notice of motion if the proceedings are current; or
(b) Originating Summons if the proceedings have been concluded.
(3) Subject to sub rule (2) an agreement reached during the mediation shall have the same force and effect, and may be enforced in the same manner, as if it were an agreement reached otherwise than during a mediation.
25. This is where I note that I had difficulties in following the plaintiffs’ argument. I refer to various questions raised at the hearing by this Court with counsel for the plaintiffs. Counsel kept referring to a legally binding ADR agreement but when I asked counsel to show evidence of that, the only evidence referred to by counsel was an attachment (annexure 4) which appears to be part of a document and I note that its pages are extracted, and begins at page 23 to page 28. It is located at Mr Kimai’s affidavit filed on 18 September 2019. It begins with a sub-heading, “PRELIMINARY ISSUES” and it is dated 31 May 2010.
26. The defendants deny that the said document is an ADR agreement.
27. I have now had the benefit of perusing this document. My view, however, has not changed. Let me give my reasons. I firstly refer to Mr Kima’s affidavit. At paragraph 4 where he attaches the purported ADR agreement, he states that the defendants’ response to the 188 plaintiffs’ position paper were inconsistent or did not reflect what had been allegedly agreed earlier on 2010. Then he attaches what he claims was the defendants’ position paper or summary of agreed finding dated 31 June 2010 which is what the plaintiff is alleging as the ADR agreement. The defendants deny that there was any agreement or ADR agreement as alleged because they claim that it was not agreed to nor signed by all the parties to it. I see that Mr Kimai does not at all claim that the said annexure B to his affidavit is an ADR agreement. His evidence was actually aimed at showing the disagreements between the parties contrary to what they had or may have discussed earlier either amongst themselves or with the mediator. My next reason is this. Annexure B consists of an extract and is not a complete document. I am unable to identify or verify who prepared it and what it was for. And I note that only a portion of the document is disclosed to the Court. “Where are the rest of it?” I ask myself. The third reason is the application of common sense based on what has transpired particularly the conduct of the parties. In this case, the plaintiffs have already commenced 3 separate or fresh proceedings. They had sought leave of the Court to discontinue the present proceedings. Pursuant to an order of 4 November 2014 made by the Justice Kandakasi, now the Deputy Chief Justice, who was the then mediator, the parties commenced the 3 proceedings, and later and with leave of the Court before the same Judge on 1 April 2015, they discontinued this proceeding which was of course later appealed against, and it has now come to this. Had there been an ADR agreement, the trial Court would have addressed it given the fact that His Honour was the mediator of the arrangement that had begun in 2009.
28. And finally, let me say this. The plaintiffs are saying that because the State was or had been slow and did not comply with the mediation directions or orders that had been issued by the mediator or by the Court, that this Court should sanction the mediation agreement based on the submission papers that had presented by other parties. To me, I find that contrary to the whole concept of mediation. An ADR agreement, if validly entered into by the parties is of course binding and legally enforceable. I refer to the case of Ted Taru v. Pacific MMI Insurance Ltd (2016) N6305. Justice Kandakasi, now the Deputy Chief Justice, stated and I quote in part, The existence of this rule in association with r. 12 of the ADR Rules signifies that, where the parties have executed a written agreement they have effectively agreed that the agreement is in order and there is no valid reason to withhold an execution of the agreement. If all the parties were legally represented at the time, that strengthens its validity and hence its enforceability.
29. I adopt these as my own herein.
30. That said, let me add this. The purpose of mediation is not to force upon any person to agree on something, even if the party who was required to do something had failed to do that thing or for whatever reasons was unable to meet the task. The outcome has to be voluntary. If there is no co-operation, then the mediation should be declared unsuccessful and the parties should return to Court to argue the matter whether it be on liability or quantum, or both. If the parties have identified the material issue during mediation then that should be the subject of the trial.
SUMMARY
31. I will grant term 1 of the defendants’ notice of motion. I will order this proceeding to be dismissed on the basis that it constitutes duplicity of proceedings and therefore amounts to abuse of the Court process.
32. I will also dismiss the plaintiffs’ notice of motion. I find that there is no valid ADR agreement as alleged. As a remark, I will say this. The refusal of the plaintiffs’ application will not prejudice their rights to negotiate in the already existing proceedings.
COST
33. Cost award is discretionary. In this case, I note that it was the defendants’ action that kept this proceeding alive; the plaintiffs had sought leave to discontinue the proceeding. Having said that, I must also be reminded that the defendants’ had expressed their right to appeal the decision of the trial Court of 1 April 2015, and they were entitled to do so.
34. But when the matter returned after the appeal, the defendants failed to move their notice of motion of 19 March 2015. The notice of motion was dismissed by the trial Court this year on 13 May 2019. In my view, the defendants have involved themselves in this abuse of court process exercises.
35. I will therefore order that eachparty shall pay its own cost of this proceeding. I note that there may be other orders of costs that have been obtained by either parties during the cause of this proceeding. They of course will be regarded by their respective orders.
ORDERS OF THE COURT
36. I make the following orders
________________________________________________________________
Wal& Associates Lawyers: Lawyers for the Plaintiffs
Manase& Co. Lawyers: Lawyers for the Defendants
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