Palie v Wagi [2020] PGNC 524; N8677 (26 November 2020)

N8677

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 20 OF 2020

BETWEEN:
ALEX PALIE
Plaintiff

AND:
MRS. VAJEHOE WAGI
First Defendant

AND:
MR. BOB WAGI
Second Defendant

AND:
MRS CAROL KOMBIL
Third Defendant

AND:
MR. GEOFFERY KOMBIL, in his capacity as the Senior Standard Officer of High Schools and Secondary Schools in Central Province
Fourth Defendant

AND:
MRS. SAI SUWARY, in her capacity as the Principle of Mt. Diamond Adventist Secondary School
Fifth Defendant

AND:
PS. KOVE TAU, in his capacity as Chairman of Mt. Diamond Adventist Secondary School
Sixth Defendant

AND:
MRS. DORCAS KUMA, in her capacity as the Education Director of Central Papua Conference of the Seventh Day Adventist Church
Seventh Defendant

AND:
MR. SEGAL POTANG, in his capacity as the Associate Education Director of the Central Papua Conference of the Seventh Day Adventist Church
Eighth Defendant

AND:
CENTRAL PAPUA CONFERENCE OF THE SEVENTH DAY ADVENTIST CHURCH
Ninth Defendant

AND:
THE CHAIRMAN CENTRAL PROVINICAL EDUCATIONAL DIVISION
Tenth Defendant

AND:
CENTRAL PROVINCIAL EDUCATION BOARD
Eleventh Defendant

AND:
THE CHAIRMAN TEACHING SERVICE COMMISSION
Twelfth Defendant

AND:
TEACHING SERVICE COMMISSION
Thirteenth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourteenth Defendant

Waigani: Tusais A J
2020: 18^th & 26^th November

PRACTICE AND PROCEDURE – Civil -Notice of Motion - Application by plaintiff to dismiss motions filed by 5^th to 9^th defendants- Wrong rules of court relied on- Court lack jurisdiction to grant relief sought – Motion incompetent and dismissed.

Cases Cited:
Yaluma v State (2010) N4088
Longai v Maken (2008) N4021

Counsel:
Plaintiff / Applicant in person
Mr. B. Frizzle, for the Fifth to Ninth Defendants / Respondents
Ms Balio, for the Fourteenth Defendant

RULING ON MOTION

26^th November 2020

1. TUSAIS AJ: INTRODUCTION: This is a motion by the applicant/ plaintiff to dismiss three motions filed by the 5^th to the 9^th defendants. Various declaratory orders and injunctions are sought in the substantive matter. The cause of action and primary right or rights on which those orders are sought is actually the subject of the motion filed by the defendants who say no reasonable cause of action has been shown and ask the court to dismiss the amended originating summons as frivolous and vexatious.

APPLICANTS ARGUMENTS

2. The applicant/ plaintiff’s motion seeks the following relevant orders.

1. Pursuant to Order 12 Rule 8 (4), Order 8 Rules 50, 62 and 64, the 5^th to 9^th defendants motion filed on 31 August 2020 and 12 October 2020 be dismissed.
2. Trial of the substantive proceeding be fixed within seven days.
3. Necessary amendments be made to documents already filed in preparation of the trial.
   

3. In support of the motion the applicant filed an affidavit in support. That affidavit however does not address the issues raised in the motion and is basically a rehashing of matters stated in previous affidavits and in the amended originating summons.

4. Applicant in his submissions argued that there were three separate motions filed by the 5^th to 9^th defendants and so there was breach of order 8 rule 64 because no Notice to withdraw the two earlier motions and stick to one motion had been filed.

5. The second ground raised was that the defendants failed to include facts addressing the many matters raised by the applicant/ plaintiff. I understood this to mean the facts going to the substance of the case.

6. Finally, the applicant/ plaintiff argued that the three motions should be dismissed because he had a very strong case. Therefore, the matter should go for trial.

DEFENDANTS RESPONSE

7. Mr Frizzle, counsel for the 5^th to 9^th defendants first referred the court to the three motions and said that two of the motions would not be pursued because events had since overtaken the reliefs sought in those motions. I refer to each of those motions filed as follows:

1. Motion filed on 27^th August 2020 by 5^th to 9^th defendants sought the following orders:
   

“Pursuant to O 12 R 8 (4) or (5) and/or O 12 R 1 the orders made on 03/08/20 be varied such that Dorcas Kuma or another of the 05^th to 09^th defendants personally attend the National Court on 28/08/20.”

This motion related to orders issued by Kandakasi DCJ on 03^rd August 2020 that failing settlement all fourteen named defendants attend court and explain to the court what steps were taken to resolve the matter out of court. This order has been superseded by further orders of the court dated 25^th September by Kandakasi DCJ that the matter be set for trial on 15^th and 16^th October before Kangwia J.

2. Motion filed on 31^st August 2020 by 5^th to 9^th defendants sought orders;
   

“Pursuant to Orders 12 R 40 (1) (a) and or (b) or (c) this originating summons be dismissed”.

This motion related to the first originating summons filed in January 2020. Since then an amended originating summons had been filed because of court orders made by the Deputy Chief Justice on 21^st September 2020. Those orders were that;

“The substantive originating summons appears to be defective in that, it does not specify what primary rights or reliefs the plaintiff has to which reliefs 1 – 3 of the OS filed on 27/01/2020 may relate to and by reason of which the plaintiff if he wishes to succeed in the action, he is required to take the appropriate steps to remedy the defect.”

In compliance with that order the applicant/ plaintiff filed an amended originating summons on the 02^nd of October 2020. This in turn rendered the motion of 31^st August 2020 obsolete. So, the 5^th to 9^th defendants filed the 03^rd motion referred to below.

100. Motion filed on 12^th October 2020 by the 5^th to 9^th defendants seeks orders that:
     

“Pursuant to Orders 12 R 40 (1) (a) and or (b) or (c) this originating summons be dismissed”.

THE LAW

8. The applicant/ plaintiff has relied on various rules of the National Court as giving jurisdiction to the court to make the order he seeks. I find that those rules do not bestow any jurisdiction and are irrelevant for the following reasons.

1. Order 12 Rule 8 (4) caters for setting aside or varying previous orders of the court. This is clearly irrelevant to what the applicant/ plaintiff seeks.
   
2. Order 8 Rule 50 comes under division 4 of that Order providing for Amendment of court documents. In my view it also does not give this court jurisdiction to dismiss motions filed by opposing parties.
   

100. Order 8 Rule 62 sets out the procedure for withdrawal of defence. Clearly this is also irrelevant.
     

4. Order 8 Rule 64 is headed “Mode of discontinuance or withdrawal”. Again, this rule does not support the applicant’s motion and give jurisdiction to this court to dismiss a motion or motions filed by the opposing party.
   

9. In Yaluma v State (2010) N4088, Sawong J said that a “Motion that does not state the jurisdictional basis for the relief sought will be in breach of Rule 8 of the Motions (Amendment) Rules 2005. Such a motion is incompetent and should be dismissed.” See also Injia CJ in Longai v Maken (2008) N4021.

RULING

10. For the reasons outlined above the court finds that it does not have jurisdiction under the Rules or based on any law to dismiss the three motions filed by the 5^th to 9^th defendants. In any case those defendants do not intend to move all three motions so it is not necessary for this court to decide whether two of them should be dismissed before one can be heard. I dismiss the motion filed by the applicant/plaintiff.

COMMENTS

11. This motion is misconceived. The reason may be that the applicant is a layman and is not familiar with the law. That is why I asked the applicant/plaintiff during the time he moved this motion to seek assistance from a practicing lawyer or from any lawyer or the Legal Training Institute for the purpose of legal advise.

ORDERS

1. Motion dismissed
2. 5^th to 9^th defendants are allowed to move their motion.
3. Costs are in the cause
   

Orders Accordingly.
________________________________________________________________
Mr. B. Frizzle: Lawyer for the Fifth to Ninth Defendants / Respondents
Ms Balio: Lawyer for the Fourteenth Defendant