N8334

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 644 of 2018 (COMM)

BETWEEN:
BENJAMIN KETEGU trading
as PISHON HIRE CARS
Plaintiff

AND:
JOHN GOURLEY
General Manager, Hides Gas
Development Company Limited
First Defendant

AND:
HIDES GAS DEVELOPMENT
COMPANY LIMITED
Second Defendant

Waigani: Hartshorn J,
2020: 17th April

PRACTICE AND PROCEDURE - Application to dismiss – dismissal of proceedings on the grounds that proceedings are frivolous, vexatious and an abuse of process – application granted – proceedings dismissed – Order 12 Rule 40 National Court Rules

Cases Cited:
Papua New Guinea Cases

Kerry Lerro v. Stagg & Ors (2006) N3050 
Rural Development Bank Ltd v. Laka (2007) SC897
Takori v. Yagari & Ors (2008) SC905
Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107 
Idutu Koiari Development Co. Ltd v. Tribal Investment Ltd (2017) N7063

Overseas Cases

Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86

Counsel:

Mr. P. Othas, for the Plaintiff
Mr. M. Ipape, for the Defendants

17th April, 2020

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

Background

2. The plaintiff sues in respect of a vehicle hire contract. He claims amongst others particular and specific damages of K908,997.26.

This application

3. The defendants' seek to dismiss this proceeding because of the plaintiff's failure to comply with discovery requirements and as the proceeding is frivolous, vexatious and an abuse of process.

Consideration

4. In regard to the failure to comply with discovery requirements, it is not controversial that the plaintiff filed his list of documents 33 days after the prescribed time for doing so.

5. In the Supreme Court case of Rural Development Bank Ltd v. Laka (2007) SC897, it was held that amongst others, striking out should not be the first response of the Court if compliance with the requirement for discovery can be achieved by other orders in a manner which will facilitate a fair trial.

6. As in this instance the plaintiff has filed his list of documents, there has been compliance by the plaintiff, albeit 33 days late, in a manner which will facilitate a fair trial. Consequently, it is not appropriate that the proceeding be dismissed for failure to comply with discovery requirements.

7. In regard to the proceeding being frivolous, vexatious and an abuse of process, the application is made pursuant to Order 12 Rule 40 National Court Rules.

8. The law concerning an application under Order 12 Rule 40 National Court Rules is well settled and does not require repetition here. I make reference to 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 Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. Further, 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.”
9. The defendants submit that amongst others, the plaintiff is not a party to the contract upon which he sues. The doctrine of privity of contract operates and the contract upon which the plaintiff sues does not confer upon him any rights or impose any obligations. Further, no exceptions to the doctrine have been pleaded. Consequently, no reasonable cause of action is disclosed in the statement of claim. They rely upon my decision in Idutu Koiari Development Co. Ltd v. Tribal Investment Ltd (2017) N7063 in which at [7] I said:

"7. As to the privity of contract issue, as I said in Soka Toligai v. Sir Julius Chan and Ors (2012) N4842:
“5. Pursuant to the doctrine of privity of contract, “…. no person can sue or be sued on a contract unless he or she is a party to it: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] AC 847. The doctrine of privity means a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties to it.” : Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261, per Lenalia J.
6. Other decisions in this jurisdiction have considered and ruled pursuant to the doctrine of privity of contract: PNGBC v. Barra Amevo & Ors (1998) N1726, The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603 and Ben Maoko v. Kevin Ling (2008) N3293.
7. In Ben Maoko (supra), Cannings J referred to exceptions to the doctrine of privity of contract. In the case before him no exceptions were pleaded. In this case as well, no exceptions are pleaded, or referred to in submissions.”"
10. The plaintiff submits that an employee of the second defendant, Mark Tindipu, signed the subject contract as owner on behalf of the plaintiff and so is the agent of the plaintiff.

11. The subject contract is pleaded as being a written agreement entered into on or about 13th July 2011. That written agreement has been put into evidence by the plaintiff. At paragraph 12(h) statement of claim, it is pleaded, "And all the other terms and conditions as per the Contract are pleaded herein." It is clear that the plaintiff is not a party to the written agreement. If Mark Tindipu did sign the agreement on behalf of the plaintiff, that is not pleaded in the statement of claim. It is also not pleaded that Mark Tindipu is an employee of the second defendant or that the second defendant is liable for the actions of Mark Tindipu.

12. Consequently, I am satisfied pursuant to the doctrine of privity of contract, with no exceptions to the doctrine being pleaded and there not being any pleading to support the submissions made on behalf of the plaintiff, that the defendants have satisfactorily made out their case that a reasonable cause of action is not disclosed against the defendants and so this proceeding is frivolous and vexatious.

Orders

13.  It is ordered that:

a)	This proceeding is dismissed;

b)	The plaintiff shall pay the defendants' costs of and incidental to this proceeding;

c)	Time is abridged.
__________________________________________________________________
Paul Othas Lawyers:  Lawyers for the Plaintiff                               
Hides Gas Development Co. Limited In-house Lawyer: Lawyers for the Defendants