N5255 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 573 OF 2012

BETWEEN:

PAGA HILL DEVELOPMENT
COMPANY (PNG) LIMITED
Plaintiff

AND:

DAURE KISU AS REPRESENTATIVE OF THE ORIGINAL
SETTLERS OF PAGA HILL AND OTHER SETTLERS
FROM THE PAPUAN REGION INCLUDING CENTRAL,
KIKORI, GULF AND SOUTHERN HIGHLAND PROVINCES
First Defendant

AND:

DAVID KEMI AS REPRESENTATIVE OF PAGA HILL SETTLERS
FROM HIGHLANDS AND OTHER PARTS OF PAPUA NEW
GUINEA AND CHAIRMAN OF PAGA HILL COMMUNITY
DEVELOPMENT COMMITTEE
Second Defendant

AND:

LLOYD SEPUNA, ALLAN PINGAH AND FRANCIS NIANFORD AND
33 OTHER TENANTS OF THE PAGA HILL NATIONAL HOUSING
CORPORATION HOSTEL
Third Defendant

AND:

DR. ANDREW MOUTU, DIRECTOR NATIONAL
MUSEUM AND ART GALLERY
Fourth Defendant

AND:

TRUSTEES OF THE NATIONAL MUSEUM
AND ART GALLERY
Fifth Defendant

AND:

JOE MOSES, RATOOS GARI & THOMAS BULU for themselves
and on behalf of settlers of Paga Hill settlement area
Sixth Defendants

Waigani: Hartshorn J.
2013: 15th, 23rd May

Application to dismiss proceeding – abuse of process – whether District Court order in force – effect of discontinuance – whether proceeding an abuse of process

Facts:

This is an application by some of the defendants to dismiss this proceeding for being an abuse of the process of the court. It is contended that there is currently an appeal pending before the National Court from a decision of the District Court that involves the same subject matter and similar parties as this proceeding. The plaintiff opposes the application and submits that the appeal and this proceeding are not the same. In any event, the District Court proceeding from which the appeal is from has been discontinued and so the appeal has been rendered redundant.

Held:

1. An order of a court remains in force and cannot be ignored until it is either set aside or quashed. In the absence of evidence that the District Court order granting leave to discontinue has been set aside or quashed, that order remains in force.

2. The effect of a discontinuance of a proceeding is that the orders made in the proceeding are extinguished.

3. The plaintiff by commencing this proceeding has not given rise to confusion and inconvenience to the defendants and this court.

4. The relief sought in the notice of motion of the third, fourth and fifth defendants' to dismiss the proceeding for being an abuse of process is refused.

Cases cited: 
Papua New Guinea Cases 

Telikom PNG Ltd v. Independent Consumer and Competition Commission (2008) SC906 
Barava v. Giregire Estates Ltd (2008) SC958 
Ronny Wabia v. BP Petroleum Development Ltd & Ors (2009) N4337
Patrick Pruaitch v. Chronox Manek (2010) SC1093 
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118
Talibe Hegele v. Tony Kila & Ors (2011) SC1124

Overseas Cases

Stahlschmidt v. Walford (1879) 4 Q.B.D. 217 
McHenry v. Lewis (1882) 22 Ch 397 
Williams v. Hunt [1905] 1 KB 512
Hudson Investment Group v. Australian Hardboards Ltd [2006] NSWSC 840 

Counsel:

Mr. I. R. Shepherd, for the Plaintiff 
Mr. D. Kamen, for the Third, Fourth and Fifth Defendants
Mr. M. Maiteng, for the Sixth Defendant

23rd May, 2013

1. HARTSHORN J. This is an application to dismiss this proceeding for being an abuse of the process of the court. The third, fourth and fifth defendants supported by the sixth defendant (defendants) make this application pursuant to Order 8 Rule 27 and Order 12 Rule 40 National Court Rules.

2. The defendants contend that this proceeding is an abuse of process as there is currently an appeal pending before the National Court (Appeal) from a decision of the District Court that involves the same subject matter and similar parties as this proceeding (DC 96/12).

3. The plaintiff opposes the application and submits that DC 96/12, the Appeal and this proceeding are not the same. In any event DC 96/12 from which the Appeal is from, has been discontinued and so the Appeal has been rendered redundant.

4. The basis for the defendants' contention that this proceeding is an abuse of process, if I understand correctly, is that there is a multiplicity of proceedings, with this proceeding, DC 96/12, and the Appeal all involving the same subject matter and similar parties, being current at the same time.

5. That a multiplicity of proceedings may be considered an abuse of process is well recognised: Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118, Telikom PNG Ltd v. Independent Consumer and Competition Commission (2008) SC906, Talibe Hegele v. Tony Kila & Ors (2011) SC1124, McHenry v. Lewis (1882) 22 Ch 397, Williams v. Hunt [1905] 1 KB 512 and Hudson Investment Group v. Australian Hardboards Ltd [2006] NSWSC 840. See also Patrick Pruaitch v. Chronox Manek (2010) SC1093.

6. In Telikom v. ICC (supra), the majority said the following concerning why a multiplicity of proceedings is considered an abuse of process:

"It is the very existence of two or more proceedings involving the same subject matter that is noxious and gives rise to the presumption, rebuttable, of abuse of process.

Once the jurisdiction of the National Court is invoked by filing a proceeding, it is incumbent on a plaintiff to prosecute it with all due dispatch; and not to commence parallel proceedings over the same subject matter. Parallel proceedings give rise to confusion and inconvenience for the defendants and the court, even where, as in the present case, one of the originating processes is not served on the defendant. Very good reasons for commencement of parallel proceedings must be given."

7. In this instance the defendants' submit that the three sets of proceedings concern the same subject matter and involve similar parties. In this proceeding the plaintiff seeks an order for vacant possession of Portion 1597, Granville, National Capital District (Portion 1597), and leave to issue a Writ of Possession. Six defendants are named.

8. In DC 96/12 the same plaintiff seeks an order pursuant to s. 6 Summary Ejection Act, that the two defendants, who are also named in this proceeding, and other persons give possession of Portion 1597. The Appeal is from a decision in DC 96/12 that refused to set aside a consent order. The Appeal is by persons who were not parties to the consent order.

9. A further matter for consideration is that the District Court granted the plaintiff leave to discontinue DC 96/12 in November 2012. The defendants' have taken issue with this discontinuance. They submit that the District Court was functus officio and therefore unable to grant leave to discontinue.

10. I will consider the discontinuance issue first as if I determine that DC 96/12 has been discontinued, there is no utility in the Appeal, and there will not be a multiplicity of proceedings.

Leave to discontinue DC 96/12

11. The District Court granted the plaintiff leave to discontinue in November 2012. That is about six months after the Appeal was filed and about three months after this proceeding was filed. As referred to, the defendants' submit that the District Court was functus officio and therefore unable to grant leave to discontinue. They rely upon amongst others, the Supreme Court decision of Barava v. Giregire Estates Ltd (2008) SC958 in support of their submission. In Barava (supra), the Court stated as to a National Court order staying directions that was ordered after an application for leave to appeal an earlier decision in the same National Court proceeding, had been filed in the Supreme Court:

"….we are firmly of the opinion that the National Court did not have the power, to make the stay orders. Once the appeal is filed and registered in the Supreme Court, the matter is seized by the Supreme Court, the National Court is dispossessed and devoid of any power over the matter and at that point became "functus officio"."

12. These comments of the Supreme Court upon which the defendants' rely, were made after the Court had decided to dismiss the objection to competency and are obiter dictum. The Supreme Court however went on to state that the onus was upon the appellants to apply to the Supreme Court to stay this National Court order; thus recognizing that the subject order had to be stayed or set aside and could not merely be ignored. 

13. I made similar observations in Ronny Wabia v. BP Petroleum Development Ltd & Ors (2009) N4337:

"10. In acting outside or in excess of its jurisdiction, the Mendi Local Land Court's decision can be classified as an irregularity and void from the outset: McC v. Mullan [1985] AC 528. There is however, no application before this court to review the decision of the Mendi Local Land Court. Oil Search submits in essence that the Mendi Local Land Court decision was made without jurisdiction and therefore it should be disregarded. Until that decision is set aside or quashed however, it must be treated as valid.

11. In John Nilkare v. Ombudsman Commission (1995) N1344, Sheehan J. (as he then was) was concerned with a judicial review application in respect of an Ombudsman Commission referral to the Public Prosecutor. Notwithstanding that under consideration here is a decision of an inferior court, the statement of the law contained in the following passage cited from In Review of Administration Action (Law Book Co 1987) at p212, in my view is applicable:

"There is no such thing as an "absolute nullity", something which everyone in every context can ignore with safety. Context is all important. Even an official act which is null in all sorts of contexts needs to be stopped by a judicial order if the bureaucracy is not to treat it as valid and effective. In order to obtain an appropriate remedy the right person must apply for an appropriate remedy against the right person at the right time…."

14. In this instance, there is no evidence before this court that the District Court order granting leave to discontinue has been set aside or quashed or even appealed. In the absence of any such evidence the discontinuance order remains in force.

Effect of discontinuance of DC 96/12

15. The plaintiff submits that the effect of the discontinuance is that the orders made in the proceeding are extinguished. The defendants' did not make any submission as to the effect of the discontinuance if it was valid.

16. It is the case that an effect of a discontinuance of a proceeding is the extinguishment of orders made in the proceeding. The case of Stahlschmidt v. Walford (1879) 4 Q.B.D. 217 is an example of an appeal against leave being granted to discontinue after judgment had been ordered, being successful, as the Court was of the view that the party who had judgment should retain the benefit of the judgment. Such benefit would have been lost if the discontinuance was allowed to stand.

17. As an effect of the District Court order giving leave to discontinue is to discontinue DC 96/12 and to extinguish orders made in DC 96/12, the Appeal from one of those orders has no utility and is rendered redundant. Consequently, I am of the view that there is not a multiplicity of proceedings and so this proceeding is not an abuse of process. 

18. If however it could be considered that there is a multiplicity of proceedings, the plaintiff by its conduct has clearly indicated that it only wishes to pursue this proceeding and not DC 96/12. It gave notice to the defendants that it wished to commence this proceeding and the reasons why, which included the delay in the prosecution of the Appeal, and to give all persons named in the Appeal the opportunity to be heard. The defendants' did not reply to the plaintiff or give any notice to the plaintiff that they would oppose or that they objected to the proposed new proceeding.

19. When regard is had to the statement in Telikom v. ICCC (supra) to which I earlier referred, and given the circumstances, I am satisfied that the plaintiff by commencing this proceeding has not given rise to confusion and inconvenience to the defendants and this court. Further, the reasons given by the plaintiff for commencing this proceeding can be considered to be very good reasons and the defendants have not submitted otherwise.

20. Given the above it is not necessary to consider the other submissions of counsel.

Orders

21. The formal Orders of the Court are:

a)	the relief sought in the notice of motion of the third, fourth and fifth defendants' filed 22nd October 2012 is refused,

b)	the third, fourth, fifth and sixth defendants' shall pay the plaintiff's costs of and incidental to this notice of motion,

c)	time is abridged.
____________________________________________________________

Ashurst Lawyers: Lawyers for the Plaintiff 
Kamen Lawyers: Lawyers for the Third, Fourth and Fifth Defendants 
Mirupasi Lawyers: Lawyers for the Sixth Defendant