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Wewak General Hospital v Daniel t-a PINS Construction [2016] PGNC 67; N6258 (30 March 2016)

N6258

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 615 OF 2015

WEWAK GENERAL HOSPITAL
Plaintiff

V

BOB DANIEL Trading as PINS CONSTRUCTION
First Defendant

OTTO GANAII
Second Defendant

GARRY GULE
Third Defendant

Wewak: Geita J
2016: 19th February; 30th March

PRACTICE & PROCEDURE - Application to dismiss the whole of the proceedings – Failure to disclose reasonable cause of actions – Abuse of
Court process.

PRACTICE & PROCEDURE – Relevant Principles – Public Interest – Balance of Convenience – Notice of Motion Refused.

National Court Rules – Order 8 rule 27 (1) (a) & (c) and Order 12 rule 40 (1) (a) &(c).

Cases Cited:
Andrew Magari v Rural Development Bank N3295
Eastern Highlands Provincial Government v Aita Ivarato N 1828
Mairi v Tololo[1976] PNGLR 59
PNG Air Traffic Controllers Association v Civil Aviation Authority of Papua New Guinea) [2008] PGSC 36.
Takori v Yagari SC 905

Counsel:
Mr. John Alman, for the 1st and 2nd Defendants/Applicants
Mr. John Tekwie, for the Plaintiff/ Respondent

RULING

ON APPLICATIONS TO DISMISS THE WRIT OF SUMMONS AND RECOVERY ORDERS

30 March, 2016

1. GEITA J: The applicant/defendants seek orders by way of a notice of motion filed on 13 November 2015.

Brief Facts

2. The application arose from ex-parte orders of the National Court on 15th May 2015 which ordered inter-alia that the Applicants/Defendants return the two dump trucks back to the Plaintiff/Respondent's premises forthwith pending the outcome of the writ. The two dump trucks were alleged to be bought from monies fraudulently released and claimed by the first Defendant. The Applicants/Defendants have ongoing criminal proceedings before the Committal Courts. The Plaintiff/Respondent has also commenced proceeding by way of a Writ of Summons in May - No 615 of 2015, seeking inter-alia an order for the payment of K1, 141, 443.39 by way of damages including the transfer of ownership of the two dump trucks to the Plaintiff/Respondent.

Grounds of application – Insufficient pleadings/Cause of action

3. The Applicants based their application on the Writ of Summons being defective in that no reasonable causes of action was pleaded. They argued that in order for the writ of summons to have substance it must plead facts which give rise to the causes of action .Mr. John Alman have also taken issue with the formatting of the writ of summons.

4. As a consequence of insufficiency of pleadings the Applicant/Defendants applied for the writ of summons to be dismissed for abuse of process. The court was referred to the case of Andrew Magari v Rural Development Bank N3295 in support.

5. In addition to the specific reliefs sought, Mr. Alman argued that since the Applicants/Defendants were currently facing criminal charges for the same monies, K1,142,443.39, their civil writ be dismissed until the completion of their criminal charges. Furthermore he pleaded for the return of the two dump trucks to the Appellants/Defendants and they be allowed to resume work on the uncompleted renovation work at Wewak General Hospital.

Respondent/s reply

6. The Plaintiff/Respondent in reply urged the court to dismiss the whole of the motion on the grounds that it was misconceived. Mr. Tekwie said Order 8 rule (1) National Court Rules only empowers courts to either strike out offending parts or the whole of the pleadings and not dismissals. The case of Takori v Yagari SC 905 was cited in support of the proportion that the inherent power of the court in such applications should be used with great care and sparingly, lest the parties be driven away from the judgment seat in a summary way. Dismissal of proceedings are contained in Order 12 rule 40 National Court Rules in certain circumstances only.

7. Mr. Tekwie urged the court to refuse the application, adding that the Wewak General Hospital had a reasonable cause of action in law and in fact arising out of fraudulent claims in which substantial amounts of monies were paid to and received by the Applicant/Defendants. He argued that public monies were misused and misappropriated which warranted a proper determination by the courts and that this case cannot be termed as frivolous and or vexatious and concluded in a summary manner.

8. He further argued against the return of the two dump trucks to the first Defendant saying there was no guarantee for the First Defendant to honour any judgment debt against him. No compelling reasons were advanced by the Applicants for the preservation orders to be lifted. (Eastern Highlands Provincial Government v Aita Ivarato N 1828.)

9. Mr. Tekwie submitted that public interest issues including public monies were involved and so the matter should be allowed to go to trial in the interest of justice and not dismissed summarily. He submitted that the entire notice of motion be dismissed with costs to the Plaintiff.

Court

10. In my opinion I must look at the nature of the application, the grounds of the application and the possible outcome of the application to determine whether an application has merit. The Applicants are asking the court to have the writ of summons dismissed summarily and at the same time asking the court for substantive reliefs. Their actions alone in my view is tantamount to abuse of process of the Court. The Applicant cannot seek substantive relief by way of on interlocutory application in a Notice of Motion. The matter must proceed to trial for proper determination of the issues. (See Motions Amendments Rules in rule 5(2) (f))... a "party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process. (Emphasis mine)

11. In the present case, the Appellant seeks to have the writ of summons dismissed due to pleading deficiencies? I cannot say if agree with Mr. Alman on this point. I am more inclined to agree with Mr.Tekwie. I am satisfied that the Plaintiff/Respondent's statement of claim does plead facts upon which the cause of action is based. Such pleadings in my view does not offend Order 8 rule 27 National Court Rules.

Overall interests of Justice & Balance of convenience

12. I acknowledge that the grant of interim relief is a discretionary matter for the courts. In the case of Mairi v Tololo [1976] PNGLR 59, Frost CJ said should their first appear to be serious questions to be tried. Then the balance of convenience and any other matter going to the discretion of the court, such as the preservation of the status quo.

13. In another case Cannings J granted interim relief pending appeal holding that, there being an arguable case, the interest and the balance of convenience favoured the grant or orders staying the implementation of the agreement. That was the case involving an employment agreement which the unions concerned claimed was not signed on their behalf. (PNG Air Traffic Controllers Association v Civil Aviation Authority of Papua New Guinea) [2008] PGSC 36.

14. I am mindful of the fact that substantial amount of monies is claimed against the Applicant/Defendants. A sizable amount has already been used up. In my view, this is a substantial amount of money claimed against the First Defendant. For the moment public funds were used and it is incumbent on the Respondent/Plaintiff to ensure that the people of East and West Sepik Provinces and Papua New Guinea for that matter are not unfairly deprived of the money, especially when the amount is substantial. If there is a question raised as to the propriety of the claim of such a substantial amount of money, then, it is in the interest of justice that the question be resolved properly. Furthermore the Plaintiff/Respondent has an obligation and standing in pursuing this writ.

15. In light of substantial public monies sought in this writ I am satisfied that the balance of convenience favors the Respondent/Plaintiff at this point in time for status quo to be maintained by Court and guard against remaining funds or whatever is left in cash or kind dissipating. Any possible hardships and inconvenience encountered by both parties is leaning heavily towards the Plaintiff/Respondents than the Applicant/Defendants as the amount of money involved is quite substantial. The Respondent/Plaintiff stands to lose. Thus, in my view the notice of motion must be refused as the overall interests of justice &balance of convenience is against the grant of such motion.

16. I need not touch on the matters on orders for the return to work and the request to have the case dismissed pending the outcome of the criminal proceedings. They are ancillary consideration and do not require the intervention of this court.

Conclusion

17. Due to the foregoing reasons I am not satisfied that the Applicant/Defendant has made out a case for the writ of summons to be dismissed for insufficient pleadings and an abuse of process.

18. The formal orders of the Court are:

1. The Applicant/Defendant's application to dismiss the writ of summons is dismissed.

2. The ex-parte interim orders granted on 8th June 2015 and proceeding, WS No 615 of 2015 is further extended until the determination of the substantive hearings.

3. Costs of the application awarded against the Defendants.

________________________________________________________________
John Alman Lawyers: Lawyers for the Applicants/Defendants
M.S Wagambie Lawyers : Lawyer for the Plaintiff/Respondent