DC2052

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 738 OF 2013

BETWEEN

CHRISTINA SIIWEN
Complainant

V

JERRY AGNUS, Acting Manager
NATIONAL AIRPORT CORPORATION
First Defendant

AND

NATIONAL AIRPORT CORPORATION LIMITED
Second Defendant

Port Moresby: TATAKALI DCM
2014: 22nd May

 Summary dismissal – discretion to dismiss- exercise with caution- National Court Rules Order12 Rule 40 - constitutional right to be heard-Right not to be abused.
Locus Standi- lacks standing to ask - but question on title is appropriate – irrelevant for these proceedings
Clean hands- Coming to court with unclean hands – 
Equity does not relieve a person of the consequences of his or her own carelessness. Acting in bad faith - Summary Dismissal appropriate

Case cited: 
Lerro v Stagg [2006] PGNC 2; N3050 (20 April 2006)
Bruce Tsang v. Credit Corporation (PNG) Ltd [ 1993] PNGLR 112

Counsel 
A. Apis (Mr) for the complainant 
C. Kaki (Mr) for the defendants 

RULING

TATAKALI:DCM This is a ruling on a notice of motion filed by the defendants seeking orders to dismiss these proceedings as being frivolous, vexatious and for being an abuse of process.

 MATERIAL FACTS

These are the undisputed material facts before this court as presented by the sworn affidavits of the complainant and the first defendant, whose evidence are the most critical and relevant for these proceedings.

The complainant is the wife of a late Gabriel Siliwen who was employed as a fireman with the then department of Civil Aviation whose functions have now been taken over by the second defendant. The late husband was residing in a property described as Airways MC Units 2 BR Flat 93A, Portion 2437, until he passed away in October of 2012. After the death of her husband the complainant continues to live in that premises with the 5 children from their marriage. 

Sometimes in 2013 the defendants asked the complainant to vacate the premises which she did not. However on the 20th of August 2013 the complainant wrote a letter to the defendants requesting them to pay her an amount of K7,000 for her repatriation expenses

The second defendant accepted this request and on the 28th of August 2013, raised an ANZ Bank Cheque for the sum of K7,020. and gave it to the complainant with a please pay cash stamp affixed to the cheque with a cover letter to the ANZ bank confirming the payment.

By the 07th of October 2013 complainant had still not vacated the premises and was subsequently locked out of the premises by the second defendant. The complainant then erected makeshift tents outside the premises and resided there with her children.

They continued to live in those make shift tents until the 23rd of October 2013 the second defendant wrote a letter to complainant advising her to move out from the make shift camps as the second defendant had already paid all outstanding entitlements and payments.

The complainant did not move until the 6th of November 2013 all the parties met and reached an understanding that the complainant would be allowed access to the premises for a period of 10 days for her to remove her personal effects from the property. An agreement to that effect was signed by all the parties

The 10 days period was to expire on the 15th of November 2013 however on that same date the Complainant filed these proceedings at the Port Moresby District Court and took out a restraining order, restraining the defendants from evicting her from the premises whilst she pursues this substantive matter in court.

What is the substantive matter

Her substantive matter as contained in the complaint is stated as

You unlawfully detained the complainants goods thereby depriving the complainant and her children of their right to the full use and enjoyment of their goods. You further entered unlawfully on to the property described as Airway MC units 2 BR Flat 93A Portion 2437 ( the premises) and demanded the complainant whom was exclusively occupying the property to evict the said property. The complainant has demanded that you produce the title to the said property but you have failed to produce the said title.

The summons contains the same wording as above and prays to the court for damages, interest, costs and any other orders the court deems fit

In essence the substantive claim is for damages she suffered for the period that she was locked out of the premises after she had already received the K7000 for repatriation expenses. That in a nutshell is her substantive claim.

This Application

The defendants Notice of Motion is asking the court to dismiss the proceedings as the complainant lacks standing or locus standi and that the matter is frivolous, vexatious, and for being abuse of court process.

This application is supported by the affidavit of a Joseph Tupiri who claims to be the acting managing director of the second defendant

Basically it is asking the court to dismiss the matter summarily. 

Summary determination of a matter is possible only when certain requirements are met.

In the case of Bruce Tsang v. Credit Corporation (PNG) Ltd. the Supreme Court held that two elements must be met before there could be an order for summary judgment under O. 12, r. 38. These are:

(a) there must be evidence of the facts proving the essential elements of the claim; and

(b) that the Plaintiff or some responsible person gives evidence saying in his belief there is no defence to the claim.

Am I satisfied that this matter should be summarily determined?

I have the affidavit of the complainant stating all the above information in the undisputed facts and the affidavit of the first defendant who is representing the second defendant also stating and confirming the above facts. There is no dispute on any material issue. Therefore the first requirement for evidence of the facts proving the essential element is satisfied.

 For the second requirement the statement of the first defendant who is claiming to be the acting managing director of the second defendant, stating that they have paid the defendant all outstanding payments and entitlements is in my opinion, sufficient to qualify as saying that there is no merits in the claim.

Having met the two requirements I am satisfied that the application can be determined summarily.

Therefore I am satisfied that this Notice of Motion asking the court to summarily dismiss these proceedings should be considered.

LAW
Although it is not specifically stated in the motion the relevant law applicable to this application is in the National Court Rules O12 Rule 40

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.

These are National Court Rules and not District court Rules however there has been no issues raised by either counsels in regards to this so I will proceed to accept them as relevant for these proceedings since the application and interpretation of these rules at the National Court in appropriate cases have a binding effect on the District Courts.

There are a number of cases that deal with the above section but in the case of Lerro v Stagg [2006] PGNC 2; N3050 (20 April 2006) Justice Kandakasi clarified that there is a long list of cases that clearly set out the relevant guiding principles when an application is made under O.12 r.40 and or O.8 r.27(1) of the Rules. As far as I am able to tell, the principles emerging from these lines of cases are as follows:

1. Our judicial system should never permit a plaintiff or a defendant to be "driven from the judgment seat" in a summary way, "without a Court having considered his right to be heard." [7] A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.[8] 

2. At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.

3. The object of these rules are therefore "to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable."[9] In other words "the object of the rule was to get rid of frivolous actions."[10]

4. A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defense is bound to fail if it proceeds to trial.

5. A claim or defense may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim.[11]

In PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forests [1992] PNGLR 85 Justice Sheehan held that a party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence, the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. For the same reason and in the interest of justice, the rules include prohibitions against abuse of the court process.

It is clear from the numerous cases that the complainant has a constitutional right to be heard but at the same time this right should not be abused. This right can be abused if they commence litigation that is frivolous and vexatious and an abuse of the court process, 

Frivilous,Veaxatious. Locus Standi

Wikipedia describes "Frivolous Litigation as one that is groundless with little prospect of success; often brought to embarrass or annoy the defendant; whereas "vexatious has both a subjective and objective element; subjectively the government must have acted maliciously or with an intent to harass the Defendant; objectively, the action must be deficient or without merit;" and finally, "bad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will.

Wikipedia also describes Vexatiuos Litigation as legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.

The above two definitions in relation to our case is that a case is frivolous and vexatious if it is one that has very little chance of success or one that may be brought about regardless of its merits. Is the complainants case one that has little chance of success and one that is brought about regardless of its merits? 

Application to our case

The complainant claims that she was unlawfully locked out of the premises by the defendant but it is also very clear that she had already agreed to move out of that premises if and when she was paid the K7000 repatriation costs. When the K7000 was in fact paid, she had not moved out for more than a week after receipt of these monies. 

In her request letter she thanked the defendants for the eviction notice. Why did she thank them? When the complainant later entered into an agreement with the defendants to be allowed access to the premises to collect her personal effects she understood and signed the agreement. Do these acts of thanking them for the eviction notice and signing on the agreement suggest that she was well aware of the defendants legal rights to the premises? It seems like she understood her position clearly. 

The defendants in good faith allowed her to live there for over a year after her husband passed away, then also paid for the repatriation expenses of K7000 and even allowed her an extra 10 days access to the premises to remove her belongings .

 In return the complainant surprised them with a restraining order and a claim for damages for the period that she was lawfully and properly locked out after she received payment. Considering her action in failing to vacate the premises as agreed does this claim have any chance of success? This question will be considered after the issue of standing is determined.

On the question of Locus Standi, the Oxford Dictionary describes it as

locus standi The right to bring an action or challenge some decision. Questions of locus standi most often arise in proceedings for *judicial review.

Does the complainant have a right to bring this action?

The Oxford Dictionary further describes right as

right n. 1. Title to or an interest in any property. 2. Any other interest or privilege recognized and protected by law. 3. Freedom to exercise any power conferred by law. 

Does the complainant have any interest or privilege protected and recognized by law which authorizes her to bring this action?

She is the wife of the husband who is deceased. Her late husband was employed by the second defendant. There is not much dispute that the premises is an institutional house of the late husband's employer the then Department of Civil Aviation. 

The department of Civil Aviation was restructured in 2007. It was split into three organizations, The National Airport Corporation (NAC), PNG Air Services Ltd and Civil Aviation Safety Authority. Its assets, duties and responsibilities were distributed accordingly. The complainant's late husband appears to have worked under the National Airport Corporation or the second defendant.

 The question of who actually has legal title to the premises appears to be not properly settled at this stage, and for that matter that is not an issue that is being contested in court. Whether the defendants have proper title to the premise or not (they say they do) is a legitimate question but the complainant is not an appropriate person to ask that question simply because she has no legal standing or legal right to ask such a question. 
 
What is clear to the court is that the complainant is not an employee of the second defendant and that she does not own the premises. There is no license or permit or tenancy agreement, for her to be in the property. The goods that she claims to own and which she was deprived off of their use and benefit were in that premises. 

Those goods should have been removed soon after she was paid the repatriation expenses. The standing that complainant seems to claim is from the fact that she owns the goods. That is not disputed. She may well own these goods. This not a case of detinue to recover goods in the possession of the defendant but to claim for damages from being deprived of its use and enjoyment for a brief period, 

The question of locus Standi is clear in that she has an interest only in the unspecified and unnamed goods, but she has no interest or privilege protected and recognized by law which authorizes her to be in the premises, so as to subsequently, bring this action. The only way to exercise her interest in the goods is to have access to the premises illegally. 

The court process cannot be used as a means to advance the complainants illegal occupation of the defendants premises. 

This is clearly a case of the defendants being put through unnecessary trouble and expenses to defend this claim, when all they seemed to have done is to act in good faith. 

Clean Hands

Her claim for damages to be paid for being deprived of the enjoyment of her goods even if proved cannot entail the plaintiff to what she asks for as it appears that she may be coming to court with unclean hands

 It is a general rule that equity does not aid a party at fault. This maxim has been repeatedly expressed that no one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault. Equity does not relieve a person of the consequences of his or her own carelessness. 

The complainant has failed to move out of the premises when she was already paid the K7,000 repatriation expenses. That was the understanding upon which she received that money. Her failure to move out resulted in the action taken by the defendants to lock her out, of which that action to lock her out becomes the subject of these proceedings. Defendant is trying to ask for the courts assistance when the facts show that this consequence of being locked out was invited to herself, through her own careless action of failing to move out soon after receiving the K7,000 payment

Findings

In considering this application to dismiss these proceedings summarily, I remind myself that this discretion to summarily determine any matter must be exercised with care and sparingly, and that the complainant should not be driven from the judgment seat in a summary way, without a Court having properly considered his/ her right to be heard. 

However having said that I am satisfied that the complainants substantive claim as it stands, is insufficient and even if it is proved that she was in fact denied her right to enjoy and use her unnamed goods, the complainant will not be entitled to what she claims, as she is seeking damages for being lawfully locked out of the premises in which she has no legal right, title, authority or permission to be in at the first place.

In conclusion, this court is satisfied that the complainants right to have her day in court is not being unfairly taken away but that she herself has abused that right. I therefore find that this claim is frivolous, vexatious and an abuse of the court process and that the matter should be summarily dismissed.

COURT ORDER

 This case is summarily dismissed in its entirety. Costs awarded to the plaintiff which shall be agreed if not taxed.

Lawyer for the Complainant: Public Solicitor
Lawyer for the Defendants: Kawat Lawyers