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Ipara v Mineral Resources Authority [2011] PGNC 15; N4216 (25 February 2011)

N4216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 793 OF 2010

BETWEEN:

KURUBU IPARA, RUBEN NALEPE and JOHAN KULINA
in their capacity as Trustee and parents and guardians of beneficiaries of
PORGERA SML CHILDREN'S INVESTMENTS TRUST FUND
First Plaintiffs

AND:

MARK EKEPA, CHAIRMAN,
PORGERA LANDOWNERS ASSOCIATION INCORPORATED
Second Plaintiff

AND:

JOHN MIUKIN, GENERAL MANAGER,
PORGERA DEVELOPMENT AUTHORITY
Third Plaintiff

AND:

MINERAL RESOURCES AUTHORITY
First Defendant

AND:

BARRICK (PNG) LIMITED
Second Defendant

Waigani: Sawong J,
2011: 15 & 25th February

PRACTICE AND PROCEDURE – application to dismiss proceedings for not disclosing reasonable cause of action and for being frivolous and vexatious under the National Court Rules –relevant principles to consider in dismissing proceedings under those stated grounds discussed – plaintiffs have not shown any of the factors required to get declaratory orders sought –proceeding an abuse of process – proceedings dismissed – Order 12, Rule 40 National Court Rules

Cases Cited

Philip Takori v. Simon Yagari (2008) SC905
Independent State of Papua New Guinea and Sam Akoita & Tolukuma Gold Mines Ltd v. Central Provincial Government (2009) SC977

Counsel
Mr. R. Bradshaw, for the Applicant/Second Defendant
Mr. P. Mawa, for the Respondents/Plaintiffs

RULING

25th February, 2011

1. SAWONG, J: By a Notice of Motion, the Applicant moves the Court, to dismiss the entire proceedings in that the proceeding do not disclose a reasonable cause of action, or is frivolous or vexatious or an abuse of the Court's process.
   
2. The application was made pursuant to Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules. The Respondents, naturally, opposed the application.
   

Order 12 Rule 40 of the rules read:

40. Frivolity, etc.

"(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 in 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."

(2) Where a sheriff applies for relief by way of interpleader, the Court may require the sheriff to satisfy the Court on the matters mentioned in Order 14 Rule 57(1) and the Court may, if not satisfied on those matters, dismiss the application.

3. The relevant principles on Order 12 Rule 40 of the Rules are set out by the Supreme Court in Philip Takori v. Simon Yagari (2008) SC906. The principles are set out on pp 13 – 16 as follows:
   

23. The starting point of course is, O 12 r 40 of the Rules as interpreted and applied by the Courts. The principles built around this provision are now well established. The National Court in Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea extracted the relevant principles from a number of overseas and our own Supreme and National Court judgments (noted in the footnotes) in this way:

"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.' 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.

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.' In other words 'the object of the rule was to get rid of frivolous actions.'

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 defence is bound to fail, if it proceeds to trial.

5. A claim or defence 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.

6. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase 'cause of action'. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the 'form of action'. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.

7. The phrase 'cause of action' could thus be defined in terms of a legal right or form of action known to law with:

'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.'

8. A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out.

9. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.

10. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is 'obviously and almost incontestably bad.' In other words this discretion can be exercised only in cases that 'are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks' for."

24. After the above summation of the relevant principles, the National Court added:

"... the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O. 1, r.7 of the Rules in appropriate cases."

25. We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O 12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments."

4. In addition, the Supreme Court in Independent State of Papua New Guinea and Sam Akoita & Tolukuma Gold Mines Ltd v. Central Provincial Government (2009) SC977, stated that merely seeking declaratory orders without anything more, may amount to abuse of the Courts process and as such a proceedings should be dismissed. The Supreme Court stated at pp 6 – 7:
   

"11. Tolukuma submits that although the granting of declaratory orders is discretionary, the discretion to grant such orders is only to be exercised where there is a clear case of competing rights between the parties. Reliance is also placed upon the Ok Tedi case (supra) in which reference was made to the factors that are required to be established before a declaratory order can be made. These are set out in the celebrated case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. They are:

1) There must exist a controversy between the parties.

2) The proceedings must involve a right.

3) The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order.

4) The controversy must be subject to the court's jurisdiction.

5) The defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim.

6) The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

12. In this regard we also refer to the High Court of Australia decision, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, in which Brennan J referred to the Russian Commercial case (supra) and said that, notwithstanding the wide discretion that exists in deciding whether a declaration should be made, it was not appropriate to grant a declaration if there was no real controversy to be determined.

13. In this jurisdiction in Donigi v. The State [1991] PNGLR 376, Brown J. held amongst others, that the power of the National Court to grant declaratory relief in respect of legislation is dependent on there being a specific problem concerning it which requires the determination of personal or proprietary rights - there is no power to declare hypothetical problems. Then in the Federal Court of Australia, Finklestein J. in Mentha & Ors v. GE Capital Ltd & Anor (1997) 154 ALR 565 said:

"What is being sought is no more than the advice of the Court that their view is correct. It is not appropriate for the court to give that advice. The proper function of the court is to determine the rights, duties and liabilities of parties when the occasion for their determination arises. Generally, that occasion will only arise when there is a dispute about those rights, duties and liabilities.""

5. I adopt and apply the principle I have set out above in this case.
   
6. In the present case the Plaintiffs are seeking declaratory orders without any other relief.
   
7. It has been submitted on behalf of the Applicant that no cause of action has been pleaded in the Originating Summons which connects any of the defendants. The Plaintiff has not pleaded any cause of action or complaint against the Defendants. Mr. Bradshaw has made extensive submissions which I have considered carefully.
   
8. Mr. Mawa, conceded during argument that there really was no complaint against the Second Defendant and that it may have been wrongly named as a party.
   
9. It is clear that as the substantive claim is for declaratory orders, the onus is on the Respondent/Plaintiff to satisfy several factors before declaratory orders can be made. These factors are:
   
   1. There must exist a controversy between the parties.
      
   2. The proceeding must involve a right.
      
   3. The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order.
      
   4. The controversy must be subject to the Courts jurisdiction in obtaining the order.
      
   5. The Defendant must be a person having a proper or tangible interest in opposing the Plaintiffs claim.
      
   6. The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.
      
10. In the present case the evidence from the Plaintiffs do not meet any one of the factors. There is no suggestion of any complaint against the Defendant. There is no dispute between the Plaintiff and the Defendants. In summary then the Plaintiffs have simply not discharge their onus and have not established or satisfied any of the factors set out as above.
    
11. In the circumstances, the proceeding are really an abuse of the Court process and should not be permitted to continue. I therefore make the following orders:
    
    1. The entirely proceedings numbered OS 793 of 2010 is dismissed.
       
    2. The Plaintiffs to pay the Defendants costs, to be agreed if not taxed.
       

__________________________________________
Mawa Lawyers: Lawyer for the Plaintiff
Bradshaw Lawyers: Lawyer for the Second Defendant