Kingston v Nutley [2025] PGNC 14; N11137 (28 January 2025)

N11137

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

W S NO. 221 OF OF 2023

BETWEEN:
KEITH KENETH KINGSTON
Plaintiff

AND
SIMON NUTLEY and RIO FIOCCO trading as FIOCCO& NUTLEY LAWYERS
First Defendants

AND
GREG SHEPHERD and HARVEY MALADINA trading as YOUNG & WILLIAMS LAWYERS
Second Defendants

LAE: DOWA J
8 SEPTEMBER 2023; 28 JANUARY 2025

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action and for frivolity - Order 10 Rule 9A (15) and Order 12 Rule 40 of the National Court Rules- As against the first defendants claim time barred under Sections 16 of the Frauds and Limitation Act-discussion on date of cause of action-Is it continuous and recurring-held cause of action fixed to date of termination of engagement- proceedings against first defendants dismissed - As against the second Defendants -proceedings frivolous and vexatious-untenable- clear case for summary dismissal -proceedings dismissed.

Cases cited
PNG Forest Products v State [1992] PNGLR 84
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
Wabia v BP Petroleum (2019)) N4337
Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007
National Provident Fund v Maladina & Others (2003) N2486
Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310
Waril Incorporated Land Group v Morobe Provincial Government & others (2023) N10108
Wialu v Andreas [2020] PGSC 60; SC1970
Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] PGSC 67; SC1549
Public Curator of Papua New Guinea v. Kara [2014]. PGSC 58; SC1420
Oil Search Ltd v MRDC (2010) SC1022
Soakofa Trading Ltd & others v Bank of South Pacific (2021) SC2068
A1 Security Guards Ltd v Alu & others (2024) SC2650
Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488

Counsel
K Keindip for the plaintiff
C Joseph for the defendants

RULING

1. DOWA J: This is a ruling on the Defendants’ application for summary dismissal.
   
2. The Defendants apply for dismissal of the proceedings pursuant to Order 8 Rule 27, Order 10 Rule 9A (15), Order 12 Rule 40 of the National Court Rules and Section 16 of the Frauds and Limitation Act 1988 for disclosing no reasonable cause of action and for frivolity.
   

The Plaintiff’s Claim

3. The Plaintiff’s proceedings involve a professional negligence claim against the owners of two law firms based in Port Moresby, National Capital District. The details of the claim are set out in the statement of claim. Briefly, the Plaintiff alleges that he instructed the first Defendants through Simon Nutley, on or about 15^th October 2016 to file proceedings for divorce from his wife, Judith Merilyn Kingston. The divorce proceedings were filed on 20^th October 2016. After having discussions with his solicitor in Brisbane, the Plaintiff was directed to the fact that the divorce petition filed by the first Defendants did not seek orders for the settlement of marital property. This, the Plaintiff alleges, was against his earlier instructions that the divorce petition should include an order for settlement of marital property. The Plaintiff alleges that the first defendants were negligent; for failing to plead an order for property settlement, for failing to provide proper advice and for failing to take remedial actions in a timely manner to correct the failures. The Plaintiff withdrew his instructions from the first Defendants and engaged new lawyers on 15^th November 2016.
   
4. Immediately after the termination of the services of the first Defendants, the Plaintiff engaged a new law firm, O’Briens Lawyers to apply for the amendment of the Petition. The application for amendment was filed but not prosecuted.
   
5. On 17^th August 2017, the Plaintiff engaged the services of the second Defendants to move the application for amendment. On 25^th October 2017, the National Court made a ruling on the application, dismissing the application for reasons that: the Rule 87(2) of the Matrimonial Causes Rules prohibit such amendments and secondly for international judicial comity because of an earlier proceeding filed in the Family Court of Australia by the wife seeking similar orders for settlement of marital property.
   
6. The Plaintiff alleges that although the National Court decision was made orally, he was not advised. After he learnt of the decision, he instructed the second Defendants to appeal the decision to the Supreme Court. The Plaintiff alleges the Defendants did not file an appeal as per his instructions and allowed the 40-day appeal period time to lapse. He alleges that the second defendants were negligent in not carrying out his instructions.
   
7. The Plaintiff thereafter engaged the services of Corrs Chambers Westgarth lawyers who succeeded in filing a Supreme Court Review. The Review was eventually heard and dismissed by the Supreme Court on 29^th October 2020.
   
8. Meanwhile and in the intervening period, the proceedings commenced in the Family Court of Australia progressed unhindered and he was forced to attend a mediation facilitated by the Family Court which resulted in property settlement that was significantly less than what he would have obtained in proceedings in the National Court.
   
9. The Plaintiff alleges that the undesirable property settlement outcome and the extra-legal costs incurred in filing a Supreme Court Review would not have occurred had the first and second defendants properly and professionally executed his instructions.
   

Defence

10. The Defendants deny liability. The first Defendant denies receiving instructions from the Plaintiff to include an order for property settlement in the divorce petition and secondly, he pleads that the claim against him is time barred under Section 16 of the Frauds and Limitation Act 1988.
    
11. The second Defendant pleads that he was not instructed by the Plaintiff to file an appeal against the decision of the National Court made on 25^th October 2017 and pleads further that the proceedings are frivolous and vexatious.
    

The defendants’ application

12. By Notice of Motion filed on 1^st August 2023, the Defendants seek the following relief:
    
    1. Pursuant to Order 12 Rule 1,Order 10 Rules 9A (15) (1) (a) and (2) (d), Order 12 Rule 40 (1) (a), (b) or (c) and/ or Order 8 Rule 27 (1) (a),(b) or (c) of the National Court Rules and section 16 of the Frauds and Limitation Act 1988, the claim against the first Defendant be struck out and the entire proceedings be dismissed for being time barred.
       
    2. Pursuant to Order 12 Rule 1,Order 10 Rules 9A (15) (1) (a) and (2) (d), Order 12 Rule 40 (1) (a), (b) or (c) and/ or Order 8 Rule 27 (1) (a), (b) or (c) of the National Court Rules and section 16 of the Frauds and Limitation Act 1988, the claim against the second Defendant be struck out and the entire proceedings be dismissed for being frivolous and vexatious.
       
       3. The Plaintiff shall pay the first and second Defendants ’costs of and incidental to this application and the proceedings Costs be paid by the Plaintiff.
          
       4. Such further or other orders this honorable court deems fit.”
          
13. The Motion is supported by the following affidavits:
    
    • (i) Affidavit of Simon Nutley sworn 27^th July 2023 and filed 1^st August 2023.
    • (ii) Affidavit of Greg Sheppard sworn 21^st July 2023 and filed 1^st August 2023.
      

14. The application is opposed by the Plaintiff. The Plaintiff relies on his own Affidavit sworn 31^st August and filed 1^st September 2023.

Issues

15. The issues for consideration are:
    
    1. Whether the proceeding against the first Defendants is time barred under Section 16 of the Frauds and Limitation Act.
       
    2. Whether the proceeding against the second Defendants is frivolous and vexatious.
       

The Law
16. Order 8 Rule 27, Order 10 Rule 9A (15) (2) (Listing Rules 2005) and Order 12 Rule 40 (1) of the National Court Rules are relevant, and they are set out below:

a. Order 8 Rule 27

“27. Embarrassment, etc (15/26

(1) Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1). ”

b. Order 10 Rule 9A (15) (2)

“15. SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

a. on application by a party; or

b. on its own initiative; or

c. upon referral by the Registrar under (3) below.

(2) The Court may summarily dispose of a matter in the following situations:

a. for want of prosecution since filing the proceedings or since the last activity on the file; or

) b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer; or

c. for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court. 27. Embarrassment, etc (15/26)

b. Order 12 Rule 40

“Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

• (a) No reasonable cause of action is disclosed; or
• (b) The proceedings are frivolous or vexatious; or
• (c) The proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
17.. The case law on Order 8 Rule 27, Order 10 Rule 9A (15)(2) and Order 12 Rule 40 of the National Court Rules is well settled. Refer: PNG Forest Products v State (1992) PNGLR 84–85, Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, Wabia v BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007, National Provident Fund v Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. v ANZ Bank (2020) N8310.

18. The principles of law settled and emanate from the above cases are:

1. A claim may be disclosing no reasonable cause of action if the facts pleaded do not clearly show all necessary facts and legal elements to establish a claim known to law.
   
2. A claim may be frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.
   

100. Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case.
     

4. The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
   
5. The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even if it proceeds to trial.
   

19. In the case Waril Incorporated Land Group v Morobe Provincial Government & others (2023) N10108, I discussed the law on the applications under Order 12 Rule 40 of the NCRs in the following terms:

12. The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.

......

12. In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial. Where common and proven facts show that the claim is untenable, no amount of evidence, or amendment to the pleadings will cure or improve the facts on which the claim is based. It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation. The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources.”
    

20. I will adopt and apply the above principles in determining the issues before me in the present case.

a. Whether the proceeding against the first Defendant is time barred under Section 16 of the Frauds and Limitation Act.

Submissions of Parties-first Defendants

21. Mr. Joseph, counsel for the first Defendants, submits that the first Defendants were instructed by the Plaintiff on 15^th October 2016 to file a divorce petition against his wife Judith Merilyn Kingston. They were not instructed by the Plaintiff to include in the petition an order for marital property settlement. The Petition was checked and signed by the Plaintiff before it was filed. The Petition was filed on 20^th October 2016. They deny the allegation that they failed to carry out the Plaintiff’s instructions as pleaded in the statement of claim.
    
22. The first Defendants submit further that the proceeding is time barred under Section 16 of the Frauds and Limitation Act. The first Defendants rely on the following facts as pleaded in the statement of claim. By the 7^th and 8^th November 2016, the Plaintiff was aware that the claim for property settlement was not included in the petition that was filed. On 15^th November 2016, the Plaintiff withdrew instructions and engaged new lawyers who filed a Notice of Change of Lawyers. The current proceeding was filed on 15^th May 2023, about six months outside the time provided by Section 16 (1) of the Frauds and Limitation Act.
    
23. Mr. Keindip, counsel for the Plaintiff, submits that the tort of negligence did not cease on 15^th November 2016, the day of termination of the first Defendant’s services. It was ongoing and continued until 25^th October 2017, when the application for amendment of the divorce petition was dismissed by the National Court. The Plaintiff relies on the decision of the Supreme Court in Oil Search v MRDC (2010) SC1022 and Soakofa Trading Ltd & others v Bank of South Pacific (2021) SC 2068
    

Consideration

24. Section 16 (1) of the Frauds and Limitation Act is relevant, and it states:

“16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.

(1) Subject to Sections 17 and 18, an action–

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”

25. The law under section 16 (1) of the Frauds and Limitation Act is settled. An action for a simple contract or tort shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued, and the cause of action can accrue on a specific date or recur on subsequent dates or a series of occurrences: see Wialu v Andreas [2020] PGSC 60; SC1970, Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] PGSC 67; SC1549; and Public Curator of Papua New Guinea v. Kara [2014]. PGSC 58; SC1420, Oil Search Ltd v MRDC (2010) SC1022 Soakofa Trading Ltd & others v Bank of South Pacific (2021) SC2068 and A1 Security Guards Ltd v Alu & others (2024) SC2650.
    
26. In Oil Search Ltd, the Supreme Court held that when determining whether an action is time barred, the Court shall have regard for following matters:
    1. Identification of the cause of action.
    2. Identification of the date on which the cause of action arose
    3. Categorisation of the cause of action.
       

27.The first Defendants were engaged in a private contract to provide legal and professional services to the Plaintiff. The Plaintiff alleges that the first Defendants breached their professional duty when they failed to fully carry out his instructions. I find the cause of action is in tort for professional negligence.

28. When did the cause of action arise. The first Defendants were instructed by the Plaintiff on 15th October 2016 to file a divorce petition against his former wife. The divorce petition was filed on 20th October 2016. The Plaintiff alleges the petition filed on his behalf by the first Defendants did not contain an additional order for marital property settlement. On discovering this omission on 7th and 8th November 2016, the Plaintiff terminated the services of the first Defendants and changed lawyers on 15th November 2016. In my view, the date for the cause of action is 20th October 2016 when the petition was filed. The Plaintiff became aware of the alleged failure on 7th and 8th November 2016. The first Defendants’ services were terminated on 15th November 2016 by reason of the alleged professional negligence. If the cause of action continued then, it came to an end by 15th November 2016.

29. I reject the Plaintiff’s argument that the cause of action continued until 25th October 2017.I note the cases Oil Search Ltd and Soakofa Trading Ltd relied on by the Plaintiff are distinguishable to the facts and circumstances of the present case. In the present case, the alleged cause of action does not arise from a breach of duty prescribed by statute or a trust deed. The alleged tort is not one that is continuous or recurring as in Soakofa Trading. There is a clear date and time for the alleged cause of action pleaded in the statement of claim. It commenced on 20th October 2016 when the first Defendants filed the divorce petition without a relief for property settlement. If the date of cause of action is to commence on the date of damage as discussed in the case of Public Curator of Papua New Guinea v. Kara (Supra), that will be 11th November 2016 when the Plaintiff’s wife filed similar proceedings for property settlement in the Family Court of Australia. In any event the first Defendants’ professional duty ended at least by 15th November 2016 when the first Defendant’s services were terminated by the Plaintiff. The first Defendants no longer owed a duty of care to the Plaintiff after the 15th of November 2016.

30. Calculating from 15th November 2016, the last day for filing the action fell due on 15th November 2022. The current action was filed on 15th May 2023, more than six (6) years later. It is out of time by six (6) months.

31.I find the Plaintiff’s proceeding against the first Defendants is filed out of time. It is time barred pursuant to Section 16 of the Frauds and Limitation Act. No amendment will cure this fact. The case is untenable and is bound to fail if allowed to continue. I will therefore uphold the first Defendants’ application and dismiss the proceeding against them.

2. Whether the proceeding against the second Defendants is frivolous and vexatious.

32. The second Defendants submit that the proceedings be dismissed for being frivolous and vexatious and that it is unlikely to succeed if it proceeds to trial. The facts forming the basis of the application are set out in the Affidavit of Greg Sheppard filed 1^st August 2023.

33. Following the termination of the first Defendants, the Plaintiff retained the services of O’Briens Lawyers, who filed an application for amendment to the divorce petition on 5^th December 2016 but was not prosecuted until 13^th October 2017.

34. Meanwhile the Plaintiff’s former wife, commenced separate proceedings on 11^th November 2016 in the Family Court of Australia in Brisbane in Initiating Application BRC 11392/2016 seeking orders for settlement of marital property. The Plaintiff through his Australian lawyers applied to stay the proceedings. On 17^th January 2017, the Family Court refused the Plaintiff’s application and further restrained the Plaintiff from conducting the Petition in Waigani. The Plaintiff appealed the Ruling to the Full Court of the Family Court of Australia. On 10^th August 2017, the Full Court of the Family Court of Australia dismissed the Plaintiff’s appeal and made the following order:

“The husband (Plaintiff) is restrained from and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.”
35. On 17^th August 2017, seven (7) days after the ruling by the Full Court of Australia, the second Defendants were instructed to move the application for amendment of the divorce petition pending before the Court. The application for amendment was filed on 5^th December 2016 by O Briens Lawyers but was not moved until 13^th October 2017 when the second Defendants moved the application. On 25^th October 2017, the National Court, per David J, made a verbal ruling, refusing the application for amendment and made a further order that the proceedings for settlement of property of the parties shall continue in the Family Court of Australia.

36. The Plaintiff was advised of the decision of the National Court on the same day, 25^th October 2017.

37. The Plaintiff alleges in paragraph 23 of the statement of claim that the second Defendant was not informed by of the decision of the National Court. After he learned of the decision through other sources, he instructed the second Defendants to lodge an appeal. The second Defendants did not file an appeal as instructed and the appeal period lapsed. The second Defendants deny being instructed to appeal the decision. They were still acting for the Plaintiff until April 2018 when they ceased and at no time did, they receive any instructions from the Plaintiff to appeal the decision.

38. The annexures “GS 8” and “GS9” of the Affidavit of Greg Sheppard clearly show that Young & Williams by email transmission to the Plaintiff on the same day,25^th October 2017, informed him of the Ruling of David J, and the Plaintiff acknowledged receipt of the information, but did not specifically instruct the second Defendants to appeal the decision. The Plaintiff deposed in his own Affidavit that after he learnt of the decision, he instructed the second Defendants by phone towards the end of October 2025 to appeal the decision.

39. Although this is not the appropriate time to assess the evidence, the Plaintiff has failed to refute direct documentary evidence provided by the second Defendants that he was advised of the Ruling on the same day.

40. In any case, what is clear though, is that the Plaintiff was aware of the decision on the day of the decision. This evidence does not auger well with the pleadings in paragraph 23 of the statement of claim which portray a complete denial of advice being given to the Plaintiff of the decision by the second Defendant. Clearly paragraph 23 is not supported by evidence and is frivolous.

42. Apart from paragraph 23, is the statement of claim, as it stands, insufficient even if proved, to entitle the Plaintiff to what he seeks?
43. The main issue for consideration is whether the second Defendants were instructed by the Plaintiff to appeal against the Ruling of David J within the 40-day appeal period. The second Defendants have filed evidence denying that they were instructed. The Plaintiff has on the other hand filed evidence that he has instructed the second Defendants by phone to appeal the decision within days from the time of decision.

44. Given the denial by the defendants, and there being no other evidence apart from a phone call, the chances of successfully proving liability remain slim.

45. Even if the Plaintiff proves that he did instruct the second Defendants to appeal the decision of David J, the facts pleaded in the statement of claim as it stands are insufficient to entitle the Plaintiff to the reliefs he seeks in the proceedings. My reasons are in the following paragraphs.

46. The Petition for divorce was read and signed by the Plaintiff before it was filed. He appears to have accepted the facts and reliefs sought in the petition. The Plaintiff says he learnt of the deficiency in the pleadings by 7^th November 2016 but did not take immediate remedial steps resulting in his former wife filing competing proceedings for property settlement on 11^th November 2016 in the Family Court of Australia.

47. Meanwhile, the Plaintiff’s new lawyers, O’Briens lawyers filed an application to amend the Petition on 5^th December 2016. This application was not prosecuted with due diligence.

48. On 10^th August 2017, the Full Court of the Family Court of Australia confirmed the jurisdiction of the Family Court of Australia to deal with the property settlement proceedings filed by the Plaintiff’s wife and injuncted the Plaintiff from seeking the same orders in the Waigani proceedings.

49. On 17^th August 2017, the second Defendants were instructed to prosecute the application to include a relief for property settlement. This is about eight (8) months after the filing of the application by the Plaintiff’s former lawyers and seven (7) days after the decision of the Full Court of the Family Court of Australia. The Decision of the Full Court of Australia is clear, that the Plaintiff was restrained from continuing proceedings in PNG in so far as those seeking to restrain the wife from pursuing her application for property settlement in the Family Court of Australia. Despite the injunction, the Plaintiff pursued the application for amendment to include an order for property settlement. In my view the application borders on abuse of the process as the restraining order was issued by a Court of competent jurisdiction and binding on the parties.
50. The Plaintiff was aware of the decision of the Full Court of Australia before he instructed the second Defendants, yet he pleads in paragraph 22 of the statement of claim that:

“The timing of the filing of the Queensland proceedings was approximately a month prior to the Plaintiff giving specific instructions to the second Defendants to take remedial steps to seek orders for settlement of marital property in the divorce petition.”.

51. Paragraph 22 is clearly frivolous and vexatious because it is not disputed that the second Defendants were instructed more than 8 months after the filing of the Queensland proceedings and seven days from the decision of the Full Court of Australia.

52. On 13^th October 2017, the application for amendment was heard by David J. On 25^th October 2017, His Honour gave a verbal Ruling refusing the application for amendment and further ordered that the proceedings for settlement of property of the parties shall continue in the Family Court of Australia. The two main reasons for decision are:

1. Amendments to the petition to include a relief for property settlement are prohibited by Rule 87 (2) of the Matrimonial Causes Rules

2. To maintain international judicial comity, having regard to the doctrine of forum non conveniens.
53. The refusal of the application by His Honour, David J, is not surprising. His Honour correctly held that proceedings for settlement of property of the parties to continue in the Family Court of Australia for reasons of international judicial comity and the doctrine of forum non conveniens. To order otherwise is to create a situation where two proceedings with respect to property settlement will co-exist in PNG and the Family Court of Australia. Given that the proceedings for property settlement in the Family Court of Australia were filed first in time, it is reasonable and convenient for that Court to continue the proceedings. Refer: Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488.

54. Although no appeal was lodged by the Second Defendants, (which the second Defendants maintain they were not instructed) the chances of success are slim even if an appeal was lodged. This is because the Ruling by David J is correct and sound in law and it is a futile exercise to lodge an appeal that would be unsuccessful.
55. Regardless, the Plaintiff filed a Supreme Court Review through another law firm. While the Plaintiff has the right to appeal the decision, the trial Court made no obvious error, and the Supreme Court eventually confirmed that by dismissing the Plaintiff’s Supreme Court Review for the same reasons given by the trial Judge. Both the National Court and the Supreme Court of PNG have agreed to the correctness of the decision of the Full Court of the Family Court of Australia that the claim for property settlement was rightly before the Family Court of Australia.

56. The divorce proceedings and settlement have now been concluded in the Family Court. Divorce was allowed by consent. The property settlement was reached through mediation facilitated by the Family Court of Australia, although the Plaintiff alleges that he settled for significantly less than what he would have settled for in proceedings in the National Court.

57. In the current proceedings, the Plaintiff seeks damages for breach of duty, stress and disappointments and for legal and related costs. The stress and legal costs are natural and consequential expenses in the divorce and property settlement proceedings.

58. The Plaintiff’s allegations against the Defendants for professional negligence for failing to apply for property settlement in the National Court in PNG after the decision of the Supreme Court and the resolution of the matrimonial proceedings three years back amounts to harassment of the Defendants.

59. For the reasons given, the chances of the Plaintiff succeeding in these proceedings are little to nothing. It would be a futile exercise to maintain the proceedings. I will therefore dismiss the proceedings for being frivolous and vexatious.

Costs
60. Costs are discretionary. Generally, Costs follow the event. The Defendants have succeeded in their application and are therefore entitled to the costs of proceeding. The Plaintiff shall pay the costs of the proceedings.

Orders

61. The Court orders that:

1. The Defendants’ application for summary dismissal is granted.
2. The Plaintiff’s proceeding against the Defendants is dismissed.
3. The Plaintiff shall pay the Defendants’ costs of the proceedings, which shall be taxed, if not agreed.
4. Time is abridged.

_______________________________________________________________
Lawyers for the plaintiff: Gamoga & Co Lawyers
Lawyers for the defendants: Ashurst PNG Lawyers