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Yuku v Lukom Trading Ltd [2021] PGNC 148; N8875 (11 June 2021)

N8875

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 27 OF 2020 (IECMS)

BETWEEN:
MARGARET RASAKA YUKU
Plaintiff

AND:
LUKOM TRADING LIMITED
First Defendant

AND:
HON BENNY ALLAN MP-MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
THE NATIONAL HOUSING CORPORATION
Fourth Defendant

Waigani: Miviri J
2021: 20^th May, 11^th June

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Notice of motion – Dismissal of entire proceedings – Abuse of Process Order 16 Rule 13 (13) (2) (a) (b) NCR – Summary dismissal – Basis for – WS Proceedings on same matter parallel – Notice of discontinuance – Current records not produced Status of WS – balance not discharged – Application refused – costs follow event.

Cases Cited:

Nil

Counsel:

L. Tangua, for Plaintiff
A. Token, for First Defendant

RULING

11^th June, 2021

1. MIVIRI, J: This is the identical notice of motion that was pursued by the First Defendant on the 13^th November 2020 for dismissal for abuse on the basis that a notice of discontinuance was not filed in a related proceeding of WS No. 123 of 2020(CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others on record. That the subject proceedings are on foot and is against the same matter. When it was pursed, it was on the basis of an Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules. It was refused on the basis of that technicality that it did not cover judicial review which was specifically covered by its own rules.
   
2. Before this proceeding were filed WS 123 of 2020 (CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others was on record. Service resulted in the first defendant filing his defence and notice of motion to dismiss the claim of the plaintiff both were served on the plaintiff. Mention was made before Justice Polume of the motion of the first defendant due to Covid19 lockdown it was adjourned. The plaintiff filed a notice of discontinuance of that proceedings without the consent of the plaintiff. And the writ of summons is annexure “A” to the affidavit of the first defendant and annexure “B” and “C” are respectively true copies of the First defendant’s defence and notice of motion. And annexure “D” is the notice of discontinuance filed by the Plaintiff.
   
3. Because there was no leave obtained nor was there, consent by the first defendant discontinued of the WS123 of 2020 (CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others did not occur the proceedings remained intact therefore this present proceeding relating to the same matter cannot remain open in the records of the court. It is an abuse of the process of court to allow it to remain it must be dismissed in accordance with Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules. They are the jurisdictional basis given the facts set out above for the court to grant accordingly with costs following.
   
4. A technicality was upheld that Order 8 Rule 27 (1) (c) and Order 12 Rule 40 (1) (1) of the National Court Rules was not specific to Judicial review and therefore had no application. The proceeding was therefore dismissed with costs.
   
5. This application is as a result of that proceedings now relying on Order 16 Rule 13 (13) (2) (a) and (b) of the National Court Rules which is the correct Order and rule as it specially addresses judicial review which is the case here.
   
6. This application runs the same argument that it is an abuse to maintain a writ of summons or, for that matter, any similar process under the rules on the same matter the subject of the judicial review here. Which is a valid argument but the affidavit relied of Luke Komean sworn 16^th November 2020 filed the 17^th November 2020 shows that a notice of discontinuance dated the 08^th July 2020 with the seal of the Court is attached. It means for all intent and purposes that has been filed in court as it has the seal of the court. Hence it means for all intent and purposes that proceeding has ceased by the notice of discontinuance. It was filed by Lasen Tangua who was then lawyer for the Plaintiff in that proceeding. It would be a different view if the records of the court are reflecting that the WS123 of 2020 (CC1) Margaret Rasaka Yuku v Lukom Trading Limited & others are still current and outstanding.
   
7. Here to convince the argument further a current search of the file and records from the registry with an affidavit to that effect should have been obtained to reflect that, despite that notice of discontinuance the WS was current and outstanding on the records of the court. A current list would have shown this even clearer. That has not been done, reliance has been placed on a notice of discontinuance of the 08^th July 2020 which effect is that the matter is no longer on the records of the Court because that is the effect of that document filed on the record of the proceedings WS. This is a notice that is a year old, it is not the current record relating and would not serve the purpose sought in the Notice of motion filed.
   
8. Accordingly, I am not satisfied that the balance has been discharged to dismiss the proceedings current for abuse of process because it is not established for the reasons set out above. There is no option available other than to dismiss the notice of motion of the First defendant with costs. This is the second time that this motion in similar terms has come before this court in similar situation and circumstances and would be the subject of Order 12 Rule 7 (2) of the National Court Rules (NCR) that if the costs in the earlier proceedings are not paid, the plaintiff is granted liberty to seek appropriate orders against the first defendant.
   
9. The formal orders of the Court are:
   
   • (i) The Notice of Motion is without merit.
   • (ii) It is denied in its entirety and dismissed.
   • (iii) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Tangua Lawyers: Lawyer for the Plaintiff

Office of the Public Solicitor: Lawyer for First Defendant