N7162
PAPUA NEW GUINEA 
  [IN THE NATIONAL COURT OF JUSTICE]

OS 98 of 2016 

BETWEEN: 
WAIGANI HEIGHTS DEVELOPMENT LIMITED
   Plaintiff 

AND:
BENJAMIN MUL trading as 
WAIGANI CHRISTIAN PRE SCHOOL
First Defendant

AND:
CHRIS MANDA 
in his capacity as the Acting Surveyor General
 of the Department of Land & Physical Planning
Second Defendant

AND:
LUTHER SIPISON 
in his capacity as the Acting Secretary of the
 Department of Land & Physical Planning
Third Defendant

        AND
DEPARTMENT OF LANDS & PHYSICAL PLANNING 
                                                Fourth Defendant

                                                          AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
                                                 Fifth Defendant

     Waigani: Hartshorn J 
     2017: May 1st
            2018: January 31st 

Application for dismissal of proceeding
    
Cases cited: 
Papua New Guinea Cases

Amos Ere v. National Housing Corporation (2016) N6515
Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278
Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 
Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977
Kerry Lerro v. Stagg & Ors (2006) N3050
Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 
National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135
National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425 
Placer Dome (PNG) Ltd v. Yako (2011) N4691 
Pius Pundi v. Chris Rupen (2015) SC1430 
Shengtai Investments Ltd v. Chen Jing (2017) N6753
Siu v. Wasime Land Group Incorporated (2011) SC1107
TS Tan v. Elcom (2002) SC683 
Takori v.Yagari & Ors (2008) SC905
Overseas Case

Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 
Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86. At 90-91 the Court of Appeal
The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438 
Counsel:

E. Korua, for the Plaintiff
J. Aku, for the First Defendant
J. Topo, for the Second, Third, Fourth and Fifth Defendants

31st January, 2018

1. 	HARTSHORN J: This is a decision on a contested application to dismiss this proceeding.

Background

2.	 The plaintiff, Waigani Heights Development Ltd (WDHL) substantively seeks two declaratory orders concerning a subdivision plan and a survey plan and then other orders seeking registration of a survey plan, enforcement of a demolition order, injunctive relief and damages. This relief is sought in regard to land known as Portion 2533, Granville, Waigani, National Capital District (Land).

This application

3. 	The first defendant Benjamin Mul trading as Waigani Christian Pre-School (Mr. Mul) applies to dismiss this proceeding pursuant to Order 12 Rule 40 National Court Rules because of res judicata and issue estoppel, that the proceeding does not disclose a reasonable cause of action, that it is frivolous, vexatious and an embarrassment, and because it is an abuse of the process of the court. 

4. 	The application to dismiss is supported by the other defendants. They submit amongst others, that WHDL does not have locus standi or standing to bring this proceeding as it does not have title to the Land.

5. 	WHDL submits that this proceeding should not be dismissed as Mr. Mul does not have a better title to the Land than WHDL, WHDL has an equitable interest in the Land which it seeks to enforce and res judicata and issue estoppel do not apply in this instance as the facts and relief sought are different to those in previous proceedings.

Law

Order 12 Rule 40 National Court Rules

6. 	There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows: 

“27.	The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing. 

28.	The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra). 

29.	The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim.  The principles stated by these cases can be summarized as follows:

(i)	A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
 	
(ii)	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii)	The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv)	A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v)	A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30.	In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”
	
7. 	Notwithstanding, all of the various judicial pronouncements since, the position is succinctly summarised in Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86. At 90-91 the Court of Appeal said:

“The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands, is insufficient, even if proved, to entitle the plaintiff to what he asks.”

Declaratory relief

8. 	As the plaintiff seeks declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made. These factors are set out in The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438. This case has been referred to in various cases including Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068

9. The factors are:

a)	There must exist a controversy between the parties;

b)	The proceedings must involve a right;

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

d)	The controversy must be subject to the court’s jurisdiction;

e)	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim;

f)	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 High Court of Australia decision, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, 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.

11. 	Also, recently, the Supreme Court in considering the issue of standing to seek declaratory orders in Pius Pundi v. Chris Rupen (2015) SC1430 held amongst others that:

“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical.”

12. 	It has been held to be an abuse of process to seek declaratory relief that will not resolve all of the issues between the parties or relief that will not finally settle the real dispute between the parties: TS Tan v. Elcom (2002) SC683 and the National Court decisions of National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No. 2) [1988-89] PNGLR 425 and Shengtai Investments Ltd v. Chen Jing (2017) N6753.

Consideration

13. 	Mr. Mul supported by the other defendants submits that the declaratory relief sought in the amended originating summons does not concern any purported right of WHDL.

14.	 From a perusal of the wording of the declarations and the other relief sought, there is no claim that WHDL is entitled to, or has any right to the Land, whether that be for instance, a right to occupy the Land by virtue of a tenancy agreement or a right to purchase the Land. Further, there is no claim that WHDL has a right of any nature which entitles it to sue any or all of the defendants. I refer to Amos Ere v. National Housing Corporation (2016) N6515 and the cases cited therein, in this regard. As stated by Sheehan J. in Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278, it is no answer to say that affidavits in support make such a claim.

15. 	In the absence of any claim stated in the amended originating summons to any right of WHDL in the Land or at all, there does not exist a 
controversy between the parties, the proceeding does not involve a right, 
(because no right has been claimed in the originating summons) and the 
proceeding has not been brought by a person who has a proper or tangible 
interest in obtaining the substantive orders sought. These three factors are 
some of the factors that must exist before a declaration will be granted. As 
these factors do not exist in this instance, WHDL is not entitled to the 
declaratory relief sought. No reasonable cause of action is disclosed: Amos 
Ere v. NHC (supra).

16. 	Consequently for the above reasons the proceeding should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

17.    The formal Orders of the Court are:

a)	This proceeding is dismissed;
b)	The plaintiff shall pay the costs of all of the defendants of and 	incidental to this proceeding;
c)	Time is abridged.
_____________________________________________________________
Kuman Lawyers		: Lawyers for the Plaintiff                           
Manase & Co Lawyers	: Lawyers for the First Defendant               
Office of the Solicitor General: Lawyers for the Second, Third, Fourth and Fifth Defendants