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Tulapi v Yer [2019] PGNC 423; N8170 (20 December 2019)

N8170

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 115 OF 2010

BETWEEN:
DANIEL TULAPI
Plaintiff

AND:
GABRIEL YER, SECRETARY DEPARTMENT OF FINANCE
First Defendant

AND:
CAROLINE JARUGA, PRINCIPAL LEGAL OFFICER, DEPARTMENT OF FINANCE
Second Defendant

AND:
NEVILLE DEVETE, SOLICITOR GENERAL, DEPARTMENT OF JUSTICE & ATTORNEY GENERAL
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2018: 25 September, 11 October, 15 & 23 November, 5 December
2019: 14 February, 14 March, 12 April, 14 June, 4 & 25 July, 1, 8 & 16 August, 4 October

PRACTICE AND PROCEDURE – application by first defendant seeking to dismiss proceedings filed by plaintiff for failing to disclose a reasonable cause of action and for filing a frivolous and vexatious claim - plaintiff’s notices of motion are an abuse of process of the Court as they relate to the same matter with respect to which the plaintiff has been unsuccessful on many occasions - plaintiff’s continued litigation on matters already determined by the Court has the effect of subjecting the defendant to inconvenience and amounts in effect to harassment - plaintiffs notices of motions filed are dismissed in its entirety

Cases Cited:

Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC 906

Counsel:

Daniel Tulapi In Person
Mr L. Kandi, for the Defendants

20 December, 2019

1. DINGAKE J: This is an application by the first defendant seeking wide ranging relief, captured in his amended notice of motion filed on the 10^th of December, 2018.
2. The application is a sequel to various notices of motion by the plaintiff seeking to enforce a number of judgments, all traceable to the decision of the District Court in case number 1620 of 1997.
3. The relief sought by the first defendant bears stating in full. The applicant seeks the following relief:
   1. Pursuant to the ex tempore Judgment dated 16^th of February, 2012, in the within proceedings, delivered by this Honourable Court comprising His Honour Sir Justice Sakora and the Orders of this Court issued on 16^th February, 2012 and the decision on appeal made on 29^th of August, 2013, by the Supreme Court (Batari J, Gabi and Kassman JJ) in Supreme Court proceedings prefixed SCA No. 07 of 2013: Daniel Tulapi v The State & Ors; the Registrar be directed to close the Court file(s) comprising the within proceedings and, the Registrar be further directed not to accept for filing, any further documents from any of the parties to the within proceedings as the proceedings were wholly disposed of and fully concluded on 16^th of February, 2012, except, for any document that is intended at pursuing and/or enforcing the Costs Order of the 16^th of February, 2012.
   2. Pursuant to Order 12, Rule 40 (1)(a)(b) and (c) of the National Court Rules and/or under Constitution Section 155(4) and/or the Court’s inherent power, the Notice of Motion filed 17^th of February, 2014 (Doc No. 48), 30^th June, 2014 (Doc No. 53 and 54), 5^th of September, 2018 (Doc No. 74) and 19^th October, 2018 (Doc No. 79, by the plaintiff be dismissed or struck out.
   3. Pursuant to Order 13 Rule 5(1), (b) & (2)(a) and Rule 8 (2)(a) of the National Court Rules, the plaintiff be committed to imprisonment and/or the plaintiff be punished for contempt.
   4. The defendants’ costs of and incidental to this application be paid by the plaintiff on a full indemnity basis.
   5. Such further or other order as the Court considers appropriate.
4. Significantly, the applicant seeks, pursuant to Order 12 Rule 40 (1)(a)(b) and (c) of the National Court Rules, and or under Section 155(4) of the Constitution the dismissal of the notices of motion filed by the plaintiff on the 17^th of February, 2014, 30^th of June, 2014 and 5^th of September, 2018 and 19^th of October, 2018.
5. Essentially, the notices of motion referred to above seek to enforce a judgment debt and or interest that the plaintiff says he is owed by the first defendant.
6. In addition to seeking the principal amount and interest the affidavits supporting the plaintiff’s notices of motion sought to be dismissed seek that various agents or officials of the State and or lawyers who are allegedly frustrating payment of principal amount and or interest to the plaintiff and in defiance of Court orders be charged for contempt of Court. Among the orders of this court that the plaintiff says has been disobeyed is the order of this Court per Gavara-Nanu J issued on the 13^th of October, 2010.
7. Amongst the persons, the plaintiff wants arrested and charged with contempt include Caroline Jaruga, Mr. Kerenga Kua, Attorney General and Minister for Justice, allegedly for being in contempt, inter alia, of the District Court proceedings DCC No. 1620 of 1997, and Orders of court in proceedings OS No. 115 of 2010 made by Cannings J, on the 15^th July, Orders of the court made by Gavara-Nanu J, on the 13^th of October, 2010 in proceedings OS No. 115 of 2010.
8. The plaintiff claims that the first defendant owes him K4,926,880.00 plus interest in the amount of K3,153,320.22.
9. The matter has a tortuous and convoluted history and continues to take substantial judicial time. The amount of time (including judicial time) and resources that has been expended in this case is illustrated by the fact that this matter has in one form or another served before over six (6) judicial officers, and still remains pending more than twenty (20) years after the initial claim was made before the District Court.
10. Wading and navigating through voluminous documents is this case that took me months to do, in an attempt to understand the heart of the matter, I came across over ten (10) applications and or appeals by the plaintiff (respondent), related or bearing on this matter in one form or another that have been dismissed by this Court and or the Supreme Court. This includes refusal of Stay application by Injia CJ (as he then was) and the dismissal of plaintiff appeal on the 29^th of August, 2013, by the Supreme Court constituted by Batari, Gabi and Kassman, JJ).
11. The record is virtually littered with a multiplicity of applications bearing on the same matter, seeking to charge various State officials and lawyers with contempt of Court and claiming payment of the amounts indicated earlier. The motions keep on coming and there is no sign that this matter would ever be finalised.
12. The applicant contend that the plaintiff’s various motions as captured in his notice of motion are vexatious and frivolous and amount to an abuse of Court process as contemplated by Order 12, Rule 40 1(a) (b) and (c) of the National Court Rules.
13. The parties also gratuitously accuse each other of fraud, although no credible evidence has been placed before the Court to warrant such a finding.
14. On the evidence before the Court, I am satisfied that the within proceedings were dismissed in their entirety by Sakora J (as he then was) on the 16^th of February, 2012.
15. The plaintiff (respondent) contends that the Court Order dated 16^th of February, 2012 was a fraud, in that the said Order is falsified. No credible evidence of any fraud was furnished to the Court.
16. On the evidence, I also find, contrary to the plaintiff submissions filed on the 23^rd of July, 2019, (Doc No. 120) filed of record, that Gavara-Nanu J, on the 13^th of October, 2010 (Doc No. 24) never ordered payment of the sum of K4,926,880.00.
17. On the contrary, the Order of 13^th day of October, 2010 ordered that: “the matter is adjourned to the Registry pending further negotiations for payment and settlement by the defendants”. Surprisingly, in his various notices of motion sought to be dismissed, the plaintiff misleadingly suggest that this Court, per Gavara-Nanu J, on the 13^th of October, 2010 issued an order that he should be paid, which is not true.
18. Having considered the evidence tendered in this case in its entirety, I am satisfied that:
    1. The various reliefs sought by the plaintiff in the notice of motions captured in the applicant’s amended notice of motion filed on the 10^th of December, 2018, are incontestably bad on the basis that the matters raised therein have long been judicially determined by this Court and or Supreme Court.
    2. That the aforesaid plaintiff’s notices of motion are an abuse of process of the Court as they pertain or relate to the same matter with respect to which the plaintiff has been unsuccessful on many occasions (Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC 906).
    3. The plaintiff’s conduct of instituting a multiplicity of proceedings, seeking inter alia, to charge various persons with contempt of Court and seeking payment of amounts that he says are owing to him, amounts to an abuse of Court process especially because some of the plaintiff averments are premised on incorrect information, an example being that this Court on 13^th October, 2010 (per Gavara-Nanu J) made orders that he should be paid.
    4. The result of the plaintiff’s continued litigation on matters already determined by the Court has the effect of subjecting the defendant to inconvenience and amounts in effect to harassment, which this Court is duty bound to bring to an end.
    5. There is no sufficient evidence, at this stage, at least on the papers filed by both the applicant and the plaintiff/respondent to justify the arrest and or committal to prison of anyone for contempt of Court.
    6. There is also no evidence that any monies are owing to the plaintiff at all.
19. This Court has an inherent jurisdiction to protect its processes from abuse, and to that extent may make orders:
    1. to prevent the making of unwarranted and vexatious applications that unnecessarily clog the system;
    2. to prevent the commencement of anticipated and unwarranted and vexatious proceedings, unless the litigant the subject of the order first obtains leave by showing that the case is arguable;
20. In the circumstances, and for one or all of the reasons stated above, the applicant is entitled to succeed in the relief sought. I must also point out that the applicant’s prayer for costs on a full indemnity basis is fully understandable, given the view I hold that the plaintiff’s various notices of motion are vexatious and frivolous and amounts in effect to harassment of the applicant. However costs being a discretion of the Court, I think in all the circumstances of this case costs on an ordinary scale is preferable.
21. In the result, I make the following orders:
    1. The plaintiff/respondent is ordered not to file with this Court any proceedings based on the purported enforcement of District Court decision in Case No. 1620 of 1997, which has been a subject of litigation and final judicial determination by this Court and or the Supreme Court.
    2. The plaintiff/respondent should he wish to commence any proceedings related to the aforesaid District Court decision should first seek leave of this Court to do so and consequentially the Registrar of this Court or any registry staff member is prohibited from accepting filing of any proceedings related to the aforesaid District Court decision and which falls squarely within the orders granted by Sakora J, on the 16^th of February, 2012 and the aforesaid decision on appeal made on the 29^th of August, 2013 by the Supreme Court (Batari, Gabi and Kassman JJ).
    3. Pursuant to Order 12, Rule 40 (1)(a)(b) and (c) of the National Court Rules and/or under Constitution Section 155(4) and/or the Court’s inherent power, the notices of motion filed by the plaintiff on 17^th of February, 2014, 30^th of June, 2014 (Doc Nos. 53 and 54), 5^th of September, 2018 (Doc No. 74), 19^th of October, 2018 (Doc No. 79), be dismissed.
    4. The defendant’s costs of and incidental of this application be paid by the plaintiff on a party to party scale.
    5. No further proceedings bearing or related to this matter are to be instituted by the plaintiff in the Courts, until all previous Court Orders on costs, together with today’s in this Court have been fully complied with by the plaintiff.

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Lawyers for the Plaintiff: Plaintiff In Person
MS Wagambie Lawyers: Lawyers for the Defendants