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Malumnga v Independent State of Papua New Guinea [2008] PGNC 149; N3497 (6 October 2008)

N3497

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 543 OF 2007

BETWEEN

ARSENIA MALUMNGA
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND

THE PUBLIC CURATOR
Second Defendant

Mount Hagen: Makail, AJ
2008: 15 February
: 06 October

INTERLOCUTORY RULING

PRACTICE & PROCEDURE - Application to dismiss - Whether reasonable cause of action disclosed - Whether proceeding frivolous and vexatious and abuse of process - National Court Rules - Order 12, rule 40(1)(a)-(c) - Application granted.

WILLS, PROBATE & ADMINISTRATION - Deceased dying interstate - Claim to entitlement to money in deceased’s bank account - Whether money in deceased’s bank account fell under estate of deceased - Onus of proof on party claiming ownership of money - Whether money subject to control of public curator - Whether plaintiff entitled to sue to recover money from public curator - Whether plaintiff exhausted alternative remedies prior to issuing proceeding - Filing of caveat on administration of deceased’s estate - effect of caveat - Lodging of a complaint before National Court or Judge against public curator to show cause - Court has no jurisdiction to determine ownership of deceased’s estate - Jurisdiction vests in administrator or executor of the estate - Public Curators Act 1951 - sections 10, 13, 14, 15, 32 & 34 - Wills, Probate & Administration Act Ch 291 - section 44 - National Court Rules - Order 19, rule 60.

Cases cited:
The Public Curator -v- Peter Pilembo (Unnumbered & Unreported Judgment of 18 September 2008)
Ronny Wabia -v- BP Exploration & Operating Co Ltd [1998] PNGLR 8
PNG Forest Products Ltd & Inchape Berhard -v- Minister for Forests & The State [1993] PNGLR 85

Counsel:
Mr. P Kopunye, for the Plaintiff
Mr. M Nandape, for the First Defendant
Mr. J Popuna, for the Second Defendant

6 October 2008

1. MAKAIL AJ: This is a case where the Plaintiff is suing the Defendants to recover K100,000.00 allegedly withdrawn from a bank account of her late husband, one John Kilburn Kil (herein "deceased") without her authority or consent. The deceased was a private lawyer and was practicing as John Kilburn Kil Lawyers at the time of his death. She says that she is one of the wives of the deceased and claims that the money was held in an Interest Bearing Deposit (IBD) account on her and her children’s account. She alleges that the Second Defendant was negligent in the discharge of his duties, in that he directed the bank to release it to him and subsequently converted it without her authority and consent.

2. She also alleges that the Second Defendant did not have the authority to engage an agent by the name of "Moses Saka" to realize the estate of the deceased and further, that the Second Defendant and the agent failed to give her a report on the status of the money.

3. On 15 January 2008, the Second Defendant filed an application to dismiss the court proceeding for not disclosing a reasonable cause of action, frivolous and vexatious and as being an abuse of process pursuant to Order 12, rule 40 (1)(a), (b) & (c) of the National Court Rules. A month after the Second Defendant filed the application, on 14 February 2008, the Plaintiff filed her application to seek leave to amend the name of the Second Defendant to read as "Public Curator of Papua New Guinea" under Order 8, rule 53 of the National Court Rules and also to join "Moses Saka" as Third Defendant in this court proceeding pursuant to Order 5, rule 8 of the National Court Rules.

4. The Defendants allege that, first the Plaintiff did not raise this concern with them nor did she give notice of her entitlement to the money to them. They say that there are administrative avenues available to her to pursue her claim and if she did so, they would have assisted her. If the Plaintiff is of the view that the Second Defendant was negligent in the discharge of his duties or refused to assist her with her concern or request, they say that she failed to exercise her right under section 34 of the Public Curators Act (PC Act). As such, it is premature for her to bring this action against them.

5. Secondly, the Second Defendant is entitled to collect the monies in the bank accounts of the deceased as he is authorized by law under section 14 of the PC Act and section 44 of the Wills, Probate & Administration Act (WPA Act) to take possession of the estate of the deceased and deal with them. This includes any other real and personal properties of the deceased.

6. Finally, the Second Defendant is authorized by law under section 4 of the PC Act to engage an agent to realize the estate of the deceased. In this case, the Second Defendant engaged a "Moses Saka" who is a lawyer and cousin of the deceased to assist to bring in all the real and personal property of the deceased to the Second Defendant before the estate can be divided amongst the beneficiaries of the deceased. Hence, there is nothing wrong to engage an agent in the case of the estate of the deceased.

EVIDENCE

7. In support of the Second Defendant’s application, he relies on the following Affidavits:-

1. Affidavit of Paul Wagun sworn and filed on 15 January 2008,

2. Affidavit of Moses Saka sworn and filed on 15 January 2008, and

3. Affidavit of Jacob Popuna sworn and filed on 9 February 2008.

8. As for the Plaintiff, she relies on the following Affidavits:

1. Affidavit of the Plaintiff sworn on 9 August 2007 and filed on 20 August 2007,

2. Affidavit of Sabobori Noifa sworn on 17 August 2007 and filed on 20 August 2007,

3. Affidavit of Maraka Noifa sworn on 17 August 2007 and filed on 20 August 2007,

4. Affidavit of Paul Dawa sworn on 17 August 2007 and filed on 20 August 2007, and

5. Affidavit of Peter C Kopunye sworn on 9 August 2007 and filed on 10 August 2007.

ISSUES

9. From the brief facts and the written submissions of the parties which I have read, I consider that in order to determine first, whether the pleadings in the amended Statement of Claim disclose a reasonable cause of action, secondly, whether the proceeding is frivolous and vexatious, thirdly, whether the proceeding is an abuse of process and finally, whether it is necessary to join Moses Saka as a Defendant in this proceeding, it is necessary to determine the following issues:

1. Whether the money (K100,000.00) fell in the estate of the deceased upon his demise.

2. If so, whether the Second Defendant is authorized to collect and deal with the money, and

3. Whether the Plaintiff is entitled to sue the Defendant to recover the money.

THE LAW

10. The Court’s jurisdiction to dismiss court proceedings for not disclosing a reasonable cause of action, frivolous and vexatious and abuse of process is found under Order 12, rule 40(1)(a), (b) & (c) of the National Court Rules. It states as follows:

"(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 and vexatious; or

(c) the proceedings are an abuse of 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.

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

REASONS FOR DECISION

11. I will consider each of the issues below.

Whether the money fell in the estate of the deceased upon his demise.

12. The first issue I have to determine is; whether the money fell in the estate of the deceased upon his demise. First, to appreciate the basis of the Plaintiff’s claim, it is appropriate to set out in full the pleadings of the Plaintiff in the amended Statement of Claim. It pleads:

"1. The Plaintiff is an employee of Air Niugini, was born on the 10th of August 1967 and is a naturalized Papua New Guinea citizen.

2. The First Defendant is a corporate entity and can sue and be sued in it corporate name, style and capacity pursuant to the provisions of the Claims By & Against the State Act 1996 as amended to date.

3. The Second Defendant is a corporate entity and can be sued in its corporate name, style and capacity, pursuant to Public Curator’s Act Chapter 81.

4. The Plaintiff was married to one John Kilburn Kil, a lawyer (hereunder referred to as "The Deceased")

5. The Plaintiff and the said deceased were customary (sic) married in October 1999 and that was formalized in series of Statutory Declarations deposing to such a marriage sworn dated 9th January 2001, 10th January 2001 and 12th September 2001.

6. The said deceased had deposited into either of his account of his two (2) Interest Bearing Deposit Account held at the Bank of South Pacific on Account Numbers 100105300 or 1001052131 the sum of K100,000.00 on account of the Plaintiff on the 7th of February 2005.

7. The said K100,000.00 was for repairing the family house.

8. On the 22nd of February 2005 at the resident of the Plaintiff and the said deceased at Boroko in the National Capital District, the following occurred:-

(a) The said deceased told the Plaintiff that her K100,000.00 was being held in one of the IBD’s.

(b) The said deceased gave a copy of his Bank Statement of his current Account 100958058 showing the transfer of the said K100,000.00 to one of his IBD Accounts 10001053900 or 10001052131 to the Plaintiff;

(c) On the said Bank Statement the deceased pointed out to the Plaintiff that he had deposited the sum of K100,000.00 into one of the IBD’s on her behalf and it was her money, ie; the Plaintiff’s money; and

(d) On the said Bank Statement the entry on the 7th of February 2005 it showed a transfer of K100,000.00 from the deceased’s main Operating Account 1000958080 to one of the following IBD Accounts either:-

(i) 10010511300; or

(ii) 1001052131

9. At the time when the said deceased told the Plaintiff the following persons were present:-

Sabobori Noifa;

Pauline Gele Bar;

Maraka Noifa; and

Paul Dawa

10. On the 25th of February 2005 the said deceased died in the road accident.

11. Following the death of the deceased the Second Defendant took over the said deceased’s account namely;

(a) Operating Account 1000958080;

(b) IBD Account 1001051300; and

(c) IBD Account 1001052131

12. The office of the Public Curator the Second Defendant was then occupied by Paul Wagun.

13. The said Public Curator (Paul Wagun) in a letter dated 2nd March 2005 to the Bank of South Pacific at Waigani directed that -

- all funds held in the account if the said deceased be rendered to the Public Curator, and specifically referred to the deceased’s current Account 1000958080, IBD Account 1001051300 and IBD Account 1001052131.

14. As a result of that instructions from the said Public Curator the Bank of South Pacific dealt with the funds held at the Bank on all accounts in the name of the deceased.

15. The Plaintiff has been requesting the said Bank to provide details of the deceased’s account, but the Bank has refused and directed the Plaintiff to liaise with the Public Curator.

16. It is alleged that the said K100,000.00 paid into either of the said IBD Accounts had now been paid out of those IBD Accounts at the directions of the Public Curator to the Bank.

17. Between 26th of February 2005 and 9th of August 2005 the Plaintiff had always thought that her K100,000.00 was being held in one of the two IBD’s and were in the control and custody of the Public Curator and would be released to her.

18. Sometimes before the 9th August 2005 the Plaintiff became aware of her K100,000.00 having gone missing, and hence a notice for claim was served on the Solicitor General.

19. The Plaintiff has by her Lawyer’s letter of the 9th of August 2005 served a notice of her claim on the State pursuant to Claims By & Against the State Act on the 29th of August 2005.

20. The Plaintiff pleads that the Second Defendant and the said Paul Wagun had no authority or instructions from the Plaintiff or any other widows of the deceased to deal with her K100,000.00 or any other funds except administering them.

21. The Plaintiff pleads that by the negligence of the office of the Second Defendant and the said Paul Wagun she has suffered the loss of her K100,000.00.

22. The Plaintiff’s claim against the First Defendant is on the basis of the negligent act, conduct, or tort committed by the servant and agent of the State Defendant namely the Public Curator Paul Wagun.

23. The Plaintiff has on various and numerous occasions attended to the Office of the Second Defendant only to be told that the said Public Curator Paul Wagun can not do anything and in the circumstances the Plaintiff comes to court.

24. The Plaintiff claims a 4% interest per annum pursuant to the Judicial Proceedings (Interest on Debts & Damage) Act on the liquidated sum of K100,000.00 calculated to K10.96 per day to run from the 9th of August 2005.

25. The Acting Solicitor General has by her letter dated 28th November 2005 acknowledged receipt of the notice of the Plaintiff’s claim.

AND THE PLAINTIFF CLAIMS AGAINST BOTH DEFENDANTS AS FOLLOWS:-

(A) K100,000.00 in refund as pleaded above;

(B) A 4% interest on the liquidated debt of K100,000.00 calculated at K10.96 per day to run from the 9th of August 2005 to the date of judgment;

(C) An 8% interest pursuant to the Judicial Proceedings (Interest on Debts & Damage) Act in the following manner:

(i) On the judgment debt to run from the service of the Writ on the Defendant to the date of judgment; and

(ii) On the Judgment debt where the judgment remains unpaid to run from 21 days after the service if the Order on the Defendant until the judgment debt plus all interest and costs are paid in full;

Costs of the proceedings".

13. On review of the pleadings in paragraphs 1 - 25 of the Plaintiff’s amended Statement of Claim, it is clear to me that the Plaintiff alleges that the Second Defendant was negligent in the discharge of his duties in that, he failed to obtain the Plaintiff’s authority or consent to first collect the money from the bank account of the deceased and secondly to convert it. If that is the Plaintiff’s case, the question is, did the money fall into the estate of the deceased upon his demise?

14. For this issue, I note Mr. Kopunye’s submissions that the Plaintiff claims that the money was held on her and her children’s account by the deceased and that the First Defendant did not have authority to collect the money and convert it. But I agree with the submissions of Mr. Popuna that there is no evidence placed before me to suggest that the money was held in trust for her and her children except her assertion in her Affidavit that the deceased left the money for her and her children. For example, there is no evidence of a trust deed left behind by the deceased to show that the money held in the account was for that purpose. Further, there is no evidence of a "will" to show that the money was to be held on their behalf and distributed to them.

15. Furthermore, it is interesting to note that the Plaintiff’s evidence is corroborated by her own children and nephew, Sabobori Noifa, Maraka Noifa and Paul Dawa respectively. They all say in their respective Affidavits that they witnessed the deceased give a copy of the Bank Statement to the Plaintiff to keep one night at their home at Boroko. They also heard him tell the Plaintiff that the K100,000.00 was for her and her children. To me, their evidence looks to good to be true especially where a couple of days later the deceased died in a motor vehicle accident. Is this a coincidence or a divine intervention for the Plaintiff and her children? I’d like to believe her evidence and that of her children that the money for them but at the same time, I have grave doubts as to the truth of their evidence.

16. I say this with respect because there is also evidence before me in the form of a bank statement of the deceased’s account which shows that the money was held in an account at BSP Bank, Boroko branch in the name of John Kilburn Kil Lawyers. I refer to Annexure "D" to the Affidavit of the Plaintiff for a copy of the Bank Statement for Account No 1000958080. Prima facie, this means that the money belonged to the law firm of John Kilburn Kil Lawyers. I am also able to say that the money did not belong to clients of the law firm as it was sitting in an account described as an "Operating Account". For lawyers and law firms, only monies sitting in "Trust Accounts" belong to clients, hence I can say with some certainty that the money belonged to the law firm.

17. In any case, what is clear is that the money was held in a bank account of the law firm. Subsequently it was transferred to a new account but I can find no evidence of the name and account number of the new account. Further, there is no evidence of a Bank Statement of the new account to show if the money was indeed transferred to the new account. All I have before me is the Plaintiff’s assertion in paragraph 14(c)&(d) of her Affidavit that the deceased had two IBD accounts and the money was transferred to one of them. This is not good enough. If she alleges that the deceased transferred the money into an IBD account, then she is obliged to produce the Bank Statement of the IBD account to verify her assertion.

18. In my view, the Bank Statement of the IBD account is easily obtainable and there is no reason for her not to produce one. It can be obtained through a subpoena issued to the Banker to furnish it or through a Notice of Discovery to the Defendants to give discovery of it. See Order 11, rules 2 & 4 and Order 9, rule 1 of the National Court Rules.

Nonetheless, the point is that if the Plaintiff says that the money was meant to be held in trust for her and her children, then why was it kept in an account in the name of the law firm? Further, why was it transferred to another account (IBD account) of which I have no evidence of its details except the Plaintiff’s assertion that it was transferred to a new account to be held on her and her children’s account?

19. To my mind, these are questions that the Plaintiff has not satisfactorily answered in her evidence. Further still, they leave gaps in her evidence and make her case weak when comparing her evidence with the evidence of the Defendants. For the Defendants, their evidence is straight forward. In the discharge of his duties, the Second Defendant collected monies in the bank accounts of the deceased upon his demise. The monies were in at least three bank accounts. They were account numbers 1000958080, 1001051300 and 1001052131. See Annexure "E" to the Affidavit of the Plaintiff for a copy of the letter of the Second Defendant to Bank South Pacific dated 2 March 2005.

20. As far as the Second Defendant is concern, whether the money was sitting in the Operating Account or one of the IBD Accounts is not relevant. What is relevant is that the money was sitting in an account in the name of the law firm of the deceased or alternatively, in the name of the deceased. Which ever the case, it fell into the estate of the deceased upon his demise. As such, it will be distributed to the beneficiaries once all the real and personal properties of the deceased are collected and the Second Defendant identifies the beneficiaries of the deceased, and of course, after taking into account the payment of debts and expenses of the deceased.

21. In this case, I have no doubt in my mind that the money in dispute is part of the estate of the deceased because it is a personal estate of the deceased under section 1(b) of PC Act and personal estate is defined by section 1 of WPA Act as "all property other than real estate". I find the Defendants’ evidence is more compelling, thus I am of the view that the Plaintiff’s claim for the money shows that there is a dispute over the ownership of the money. Where there is a dispute as to the right of ownership of property of the deceased like in this case, money, naturally, it would be a question of who is entitled to receive or benefit from the estate of the deceased. Once this question is settled or once the beneficiaries are identified then, the next question is how the estate will be divided amongst the beneficiaries like in this case, how much of the K100,000.00 will be given to the Plaintiff and her children?

22. This is where I find Mr. Kopunye’s submissions that the money was meant to be held in trust for the Plaintiff and her children not only without merit but also misconceived. The issue is not whether or not the deceased said the money was for the Plaintiff and her children to the exclusion of others prior to his death but one of who should benefit out of the estate of the deceased.

23. In my view, I cannot determine these questions in this proceeding because this Court has no jurisdiction. These are questions that are within the jurisdiction of the person appointed by the Court as the administrator of the deceased’s estate or if the deceased died leaving a "will", the executor of the deceased’s estate.

24. Again, this is where I reject Mr. Kopunye’s submissions that I should treat this case as a negligence action against the Defendants and not as a probate or intestacy proceeding. For to accept this submission would mean that the Court is not concerned about the interest of other beneficiaries of the estate of the deceased, especially those others who are also entitled to receive their share of the money. It is clear to me that the Plaintiff wants to shut the others out and have the entire money to herself and her children. This is confirmed by her own pleading in paragraph 17 where she states that, " Between 26th of February 2005 and 9th of August 2005 the Plaintiff had always thought that her K100,000.00 was being held in one of the two IBD’s and were in the control and custody of the Public Curator and would be released to her". This, I will not allow. In the end, I am satisfied that the money fell into the estate of the deceased upon his demise. (Underlining is mine).

Whether Second Defendant is authorized to collect and deal with the money.

25. That being the case, it follows that the first, the question of beneficiaries of the deceased and secondly, the distribution of the money to these beneficiaries are matters that can only be determine by the Second Defendant in his capacity as an administrator of the estate of the deceased or by some other person appointed by the Court to administer it.

26. But before proceeding on to decide those questions, is the Second Defendant authorized to collect and deal with the money? Here, I find that there is no evidence of a grant of probate or letters of administration to the Second Defendant to administer the estate of the deceased. In the absence of such evidence, I assume the Second Defendant exercised his power of initial vesting of a deceased’s estate under section 14 of the PC Act and section 44 of the WPA Act when he collected the money from the Bank and disbursed on an interim basis. I mention on an "interim basis" because it is only an interim measure until either the Second Defendant or some other person is appointed by the Court to administer the estate of the deceased. See sections 9, 10 and 15 of the PC Act.

27. My assumption is confirmed by the Second Defendant’s evidence in paragraph 3 of his Affidavit where he says that: "On the 25th February 2005, the deceased, later John Kilburn Kil was tragically killed in a motor vehicle accident. By operation of Section 44 of Wills, Probate & Administration Act, initial vesting powers of the estate are (sic) automatically conferred upon me as the Public Curator to deal with and administer the estate in the best interest of the beneficiaries".

28. But, as I said in my judgment of The Public Curator -v- Peter Pilembo (Unnumbered & Unreported Judgment of 18 September 2008), a case where parties were in dispute over the estate of a deceased who died intestate at pages 26 & 27:

"I am of the view that section 14 of the PC Act gives or vests in the Plaintiff as the Public Curator the power or authority to take possession of a deceased’s estate if the deceased dies leaving property in the country where first he leaves no "will" or secondly where he leaves a "will" but no executor appointed in the "will" or thirdly where he leaves a "will" and has appointed an executor but the executor is dead or too far away or does not intend or has neglected to act as executor.

But I consider that this power or authority is not absolute. It is qualified in that, first under section 14(2) of the PC Act where the Public Curator or his agent takes possession of the "real estate" of a deceased person, he may first take any steps and incur any expense that he thinks necessary for preserving it or anything in, on, or annexed to it and secondly collect and sell any product of it that would decrease in value by being kept, and incur any necessary expense in connection with the collection or sale. (Underlining is mine)".

29. In respect of the initial vesting and power of control of deceased’s estate by the Second Defendant under section 44 of the WPA Act, this is what I said at pages 48 & 49 of the judgment:

"First, in my view, the Public Curator is required to apply for letters of administration of the deceased estate after taking possession of the property of the deceased. I say this because whilst a deceased’s estate is initially vested in the Public Curator under section 44 of the WPA Act it must not be mistaken or forgotten that section 10 of the PC Act also requires the Public Curator to apply for letters of administration where a person dies without a "will".

30. I would add here that the Second Defendant’s power to take possession and control of the deceased’s estate is to be read together with the provisions of the WPA Act. And if that is done, it becomes clearer and meaningful that the Second Defendant is required to apply and obtain letters of administration before commencing and completing the administration process of the estate of the deceased under sections 10, 13, 14 and 15 of the PC Act.

31. Therefore, I am satisfied that the Second Defendant is authorized to collect and deal with the money pending the appointment of an administrator of the estate of the deceased.

Is the Plaintiff entitled to sue the Defendants to recover the money in this proceeding?

32. In this case, it is clear to me that the Plaintiff is complaining about her entitlement to the money. It is also clear that an amount of K100,000.00 was transferred from the Operating Account of the law firm of the deceased (1000958080) on 7 February 2008 to a new account but as I observed earlier, I can find no evidence of the bank statement of the new account, nor the name and account number of this new account. In the absence of such evidence which I consider vital to determine first, the status of the administration of the estate and secondly, the status of the money held by the Second Defendant, I must assume that the money is still in the custody and control of the Second Defendant.

33. I say this notwithstanding that it is the evidence of the Plaintiff in paragraphs 25, 26 and 27 of her Affidavit that first she noticed from the letter of the Second Defendant to Moses Saka dated 8 July 2005 that the Second Defendant dealt with the K100,000.00 and was waiting for Mr. Saka to acquit or account for the money. Secondly, she did not think that the Second Defendant was entitled to do that without informing the widows of the deceased like herself and the children. Finally, she found out that the money is missing as it is no longer in one of the IBD accounts.

34. In her evidence, she did not say that the money was distributed by the Second Defendant and if it was distributed, to which persons and the amount distributed. All I have is her assertions that the Second Defendant dealt with the money. I am not satisfied that the Second Defendant dealt with the money because the money was collected by the Second Defendant to hold to settle any debts and expenses of the deceased and finally to distribute the reminder to the beneficiaries of the deceased as part of the estate of the deceased.

35. As such, I am of the view that she should have given notice of her interest in the money to the Second Defendant. In this respect, I note that she did give notice of her claim to the Second Defendant through numerous representations to the Second Defendant but the Second Defendant did not attend to her requests. See paragraphs 19 & 20 of her Affidavit. This evidence is not refuted or denied by the Defendants, especially the Second Defendant in his Affidavit.

36. Thus, I find that the Second Defendant failed to take into account her interest in the money. So where does this leave her? I consider that she is not "left high and dry" so to speak. But does this mean that she is entitled to sue the Defendants to recover the money in this court proceeding? I answer the question in the negative. First, the remedy immediately available to her is for her to apply and obtain a caveat pursuant to Order 19, rule 60 of the National Court Rules. A caveat acts as a stay of the administration of the deceased’s estate until the dispute as to the Plaintiff and her children’s entitlement to the money is resolved. I had explained briefly this process in Peter Pilembo’s case (supra) at pages 55-56 of the judgment as follows:

"In the present case, I consider that the proper and correct procedure for the Plaintiff to follow is to invoke the Court’s power to give notice and preserve his interest in the estate of the deceased under Order 19, rule 60 of the National Court Rules. That is, he should have applied for a caveat. Order 19, rule 60 provides as follows:

"60. Caveat in respect of grant. (78/61)

(1) A person claiming to have an interest in an estate may lodge in the Registry a caveat in Form 95 in respect of any grant or reseal being made in the estate.

(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.

(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within seven days of the lodging of the caveat, serve a copy of the caveat on him".

Order 19, rule 60 is very clear. Where the Plaintiff claims that he has an interest in the estate of the deceased, he must file a caveat which must contain full details of his interest and address of service. Further, if the Plaintiff knows that the Defendant is making or intending to make an application for a grant of administration of the estate of the deceased, he must within seven days of the filing of the caveat serve a copy on the Defendant.

Assuming that the Defendant did the correct thing by filing an application for either a grant of probate based on the "will" contained in the Statutory Declaration (which I have already found to be invalid) or grant of administration then, the Plaintiff would have served a copy of the caveat on the Defendant. If that was done, the Defendant would have been obliged to take note of his interest when it came to determining the beneficiaries of the deceased.

37. I further said in the Peter Pilembo’s case (supra) at page 56 that:

"I consider that these should have been the processes by which the Plaintiff and the Defendant should have followed at the beginning of the dispute and to come to Court in the way they did because after all, I can see that the dispute is really over who are the legitimate beneficiaries of the estate of the deceased. That is, is it the Defendant only or is it the Defendant and Betty plus others whom I am unable to establish their identity now because there is no evidence of their identity before me? But these processes in my view have not been followed".

38. In my view, the Plaintiff acted too hastily to come to Court. The avenue to place a caveat on the administration of the estate was open to her but she did not utilize it. I say she did not because I have no evidence before me to show that the Plaintiff did file a caveat on the estate of the deceased. Nonetheless, it is not too late for her as the estate is still under the administration of the Second Defendant on an interim basis until the Court appoints an administrator of the estate. And so, she should pursue the application for a caveat to get the Second Defendant to seriously take into account her interest.

39. Proceeding on this premise, this makes the Plaintiff’s allegations of negligence against the Defendants shaky as it shows that the money is in the custody and control of the Second Defendant. Conversely, it makes the Defendants’ contention that the dispute as to the entitlement of the money should be dealt with as part of the administration of the estate of the deceased much stronger. I am inclined to agree with the submissions of Mr. Popuna in this respect.

40. This is where the case authorities which Mr. Popuna refers to like Ronny Wabia -v- BP Exploration & Operating Co Ltd [1998] PNGLR 8 and PNG Forest Products Ltd & Inchape Berhard -v- Minister for Forests & The State [1993] PNGLR 85 have made it clear that this Court has an inherent power and duty to protect itself from base by litigants by ensuring that vexatious litigants do not abuse court processes by instituting frivolous or vexatious suits. If the court proceedings are considered an abuse of process, the Court may dismiss them.

41. In the case of Ronny Wabia (supra), His Honour Sevua J, defined "frivolous" and "vexatious" by adopting the definitions in the text, Supreme Court Civil Procedure New South Wales, 2nd Edition, by Young, O’Leary & Hogan, 1987, Butterworths, at pp130 -133 as follows:

"Frivolous", by its ordinary meaning means, "not worth serious attention or manifestly futile." Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, "vexatious" means, "causing vexation or harassment." It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed. As to the abuse of process argument, it is said on p131 that the use of the Court process to pursue proceedings which disclose no reasonable cause of action, or which are frivolous or vexatious, is clearly an abuse of that process".

42. Bearing in mind these cases, and the above discussions, can it be said that the present court proceeding fails to disclose a reasonable cause of action, or is frivolous and vexatious or is an abuse of process? I will return to answer this question shortly, but first I wish to comment on the submissions of the Defendants on the Plaintiff’s failure to exhaust other alternative remedies.

43. Here, I consider that where there is a complaint arising out of exercise of power by the Second Defendant over the estate of a deceased person, an aggrieved party may utilize section 32 of the PC Act to seek redress before the National Court. But I reject the submissions of Mr. Popuna that the Plaintiff should have commenced legal proceedings under section 32 of the PC Act. Section 32 states:

"PART VI - LEGAL PROCEEDINGS, ETC.

32. Disputes, etc.

(1) Where an order is made under Section 10 or 11 in relation to the estate of a deceased person, or an order is made under Section 12 in relation to the property of a person -

(a) all disputes and matters concerning the collection, management or administration of the estate or of the property; and

(b) all claims on the estate or property,

shall, subject to Subsection (2), be decided by the National Court or a Judge.

(2) Where it appears to be undesirable that the matters in question should be decided in accordance with Subsection (1), the National Court or a Judge may direct such proceedings to be instituted as appear proper".

44. The reason is this, section 32 is another remedy available to the Plaintiff to utilize but it can only be utilized if first, an order is made under section 10 or 11 of the PC Act, that is where the Court appoints the Second Defendant as administrator of the estate of the deceased or secondly, an order under section 12, that is where the Court appoints the Second Defendant to take possession of any property of missing persons.

45. In this case, an order under section 10 is relevant but I can find no evidence to show that the Second Defendant did obtain letters of administration to administer the estate of the deceased under section 10 of the PC Act. In other words, there is no evidence of a Court order appointing the Second Defendant as administrator of the estate of the deceased before me. Thus, in my view section 32 is inapplicable.

46. Next, I also reject the submissions of Mr. Popuna that as the Plaintiff’s Writ of Summons did not bear the endorsement of the Second Defendant as the Public Curator in his "representative capacity" and only pleaded the administrative role of the Second Defendant, it is contrary to Order 4, rule 20(1)(b) of the National Court Rules. This rule states:

"20. Endorsement as to capacity. (UK 6/3)

(1) Before a writ of summons is issued it must be endorsed -

(a) where the plaintiff sues in a representative capacity-with a statement of the capacity in which he sues; and

(b) where a defendant is sued in a representative capacity-with a statement of the capacity in which he is sued.

(2) ..........." (Underlining is mine).

47. That is not what Order 4, rule 1(b) says. What it says is that, where the Defendant represents himself and a group of people to defend a court proceeding or defends on his and other persons behalf, the Plaintiff is required to state that the Second Defendant is sued in a representative capacity. But this is not the case here. The Second Defendant is a legal entity and is being sued in that capacity pursuant to section 2 of the PC Act. That provision reads:

"2. The Public Curator.

(1) Subject to the Public Services (Management) Act 1995, the Minister may, by notice, appoint an officer to be the Public Curator.

(2) The Public Curator -

(a) is a corporation by the name of "Public Curator of Papua and New Guinea"; and

(b) has perpetual succession; and

(c) shall have a seal".

48. Thus, in my view, this court proceeding cannot be dismissed on these two grounds as I find the submissions of Mr. Popuna objecting to the Plaintiff not suing under section 32 of the PC Act and also the correctness or otherwise of the proceeding under Order 4, rule 1(b) of the National Court Rules misconceived and without merit.

49. This brings me to the second reason for saying that the Plaintiffs’ court proceeding is premature. I am of the view that the Plaintiff should have made a complaint to the Court under section 34 of the PC Act and obtained an order calling on the Second Defendant to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act, that is from dealing with the money. Section 34 states as follows:

"34. Complaints against Public Curator.

(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Curator is administering under this Act, may -

(a) on the neglect or refusal of the Public Curator to do any act in relation to the administration of the estate; or

(b) on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge -

(c) for an order calling on the Public Curator to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.

(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may -

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require, and in particular as to payment of costs -

(i) by the complainant; or

(ii) by the Public Curator; or

(iii) from the estate administered by the Public Curator,

as, in the discretion of the Court or Judge, seems just.

(4) An order under Subsection (3)-

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint".

50. In my view, the present proceeding is not a complaint under section 34 of the PC Act. As I said earlier, the Plaintiff is suing the Defendants based on negligence. But the correct process should have been by filing a complaint before the Court or a Judge under section 34 of the PC Act. This is the remedy for the Plaintiff and also the correct process by which the Plaintiff should have followed to get the Second Defendant to consider her claim to the money. It is a statutory remedy always available to the Plaintiff to use but I find that she did not follow this process.

51. That being the case, I consider that she is not entitled to sue the Defendants in this court proceeding. She did not exhaust the alternative avenues available to her to seek redress. This is where I find the Plaintiff’s claim in this court proceeding premature. Again, this Court has no jurisdiction and so it renders the court proceeding frivolous and vexatious, and also an abuse of process and should be dismissed for these reasons.

Is it necessary to join Moses Saka as a defendant in this proceeding?

52. Has I have found that the court proceeding fails to disclose a cause of action and is not only frivolous and vexatious but also an abuse of process, it is not necessary to consider the issue of joinder.

CONCLUSION

53. I conclude therefore that first, the court proceeding does not disclose a reasonable cause of action because the claim for entitlement to the money falls in the estate of the deceased upon his demise. Secondly, it is also frivolous and vexatious as the Second Defendant did have the power and control of the estate of the deceased under section 14 of the PC Act and section 44 of the WPA Act when he collected the money from the bank accounts and held them in his custody. Finally, it is also an abuse of process as the Plaintiff did not exhaust other alternative remedies like filing a caveat under Order 19, rule 60 of the National Court Rules or filing a complaint before the National Court or a Judge against the Second Defendant to show cause as to why he should not be restrained from dealing with the money under section 34 of the PC Act.

54. For these reasons, I am satisfied that the Second Defendant has made out his application to dismiss the court proceeding and grant it.

ORDERS

The Orders of the Court I make are as follows:

1. The Plaintiff’s court proceeding is dismissed as not disclosing a reasonable cause of action, as being frivolous and vexatious and abuse of process.

2. The Plaintiff pays the Defendants’ costs of the court proceeding to be taxed if not agreed.

3. Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the First Defendant
In House Counsel: Lawyers for the Second Defendant