N9412
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 264 OF 2021

BETWEEN:
DR FRANCIS ESSACU (PHD)
First Plaintiff

AND:
JENNY ESSACU
Second Plaintiff

AND:
PROFESSOR AISAK PUE in his capacity as the Vice Chancellor of PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
First Defendant

AND:
PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT
Second Defendant

Kokopo: Suelip AJ
2021: 5th & 28th October

CIVIL – application to dismiss – contract officers – terminated for serious 
misconduct – Order 12 rule 40 National Court Rules – whether proceedings disclose a cause of action, are frivolous or vexatious and are an abuse of process – courts power to dismiss is discretionary – application refused with costs

Case Cited

Kerry Lerro t/a Hulu Hara Investments Ltd v. Philip Stagg & 2 ors [2006] N3050
Philip Takori v. Simon Yagari (2008) SC905
PNG Forest Products Limited & Anor  v. Jack Genia & Anor [1992] PNGLR 85

Reference

Standard Terms and Conditions of Contract Employment of Citizen Staff at the PNG University of Natural Resources and Environment

Counsel

P Yange, for the Plaintiffs 
D. Kamen, for the Defendants

DECISION

28 October, 2021

1.	SUELIP AJ: This is my decision on the defendants’ contested application to dismiss the proceedings for disclosing no cause of action, for being frivolous and vexatious, and for being an abuse of the process. This application is made pursuant to Order 8 Rule 27 and Order 12 Rule 40 of the National Court Rules.

2.	In the Originating Summons (OS), the plaintiffs claim the following primary reliefs: 

(i)	A declaration that the purported termination of the plaintiffs by the first defendant from their employment with the second defendant by letters dated 6 August 2021 and 9 August 2021, be declared null and void ab initio and of no effect in that the said terminations were in breach of the plaintiffs’ employment contracts (Standard Terms & Conditions of Citizen Employees of PNGUNRE) respectively dated 25 November 2019 and 24 May 2021. 

(ii)	Consequently, a Declaration reinstating and confirming the plaintiffs back to their respective positions until the end of their employment period unless extended by the second defendant. 

(iii)	An order that the first and second defendants, their servants, agents and associates are restrained from forcibly removing the plaintiffs from their offices and their residential homes until the end of their employment period unless extended by the second defendant. An order that the first and second defendants, their servants, agents and associates are restrained from interfering with the plaintiffs’ duties until the end of their employment period unless extended by the second defendant. 

3.	On 12 August 2021, the plaintiffs sought and were granted interim injunctions restraining the defendants from removing the plaintiffs from the institutional house and interfering with their employment duties. On 18 August 2021, at the return of the interim injunctions, the Court heard inter-parte arguments and ordered that the interim injunctions be maintained pending the determination of these proceedings. 

4.	The defendants now apply for these proceedings to be dismissed for reasons including: 

(a)	the plaintiffs applied the wrong mode of proceeding. They should have come by way of a judicial review to challenge the decision of the first defendant to terminate their employment contract with the second defendant.
	
(b)	the plaintiffs were lawfully terminated pursuant to Clause 18.1(a)  of the Standard Terms and Conditions of Contract Employment of Citizen Staff at the PNG University of Natural Resources and Environment (Contract) and Section 36 of the Employment Act.

5.	In response, the plaintiffs submit the application for dismissal of proceedings is misconceived and should be dismissed with costs for these reasons: 

(a)	the pleadings in the OS disclose reasonable cause of action where there are allegations of breaches of employment contract for the plaintiffs.
(b)	the plaintiffs are asking for orders to declare the plaintiff’s termination null and void.
(c)	the plaintiffs are asking the Court to reinstate them into their respective positions.
(d)	they are asking for injunctive reliefs.
(f)	these arguments were raised before at the inter-parte arguments at the return of the interim injunction and to raise them again here is an abuse of the process by the defendants. 

The law

6.	Order 8 Rule 27 and Order 12 rule 40 of the National Court Rules provide as follows: 
	
27.    Embarrassment, etc. 
(1)     Where a pleading—
(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)  is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2)     The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

	…
	40.	Frivolity, etc.

(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
		(a)	no reasonable cause of action is disclosed; or
		(b)	the proceedings are frivolous or vexatious; or
		(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

7.	In Philip Takori v. Simon Yagari (2008) SC905, the Supreme Court referred to Kerry Lerro t/a Hulu Hara Investments Ltd v. Philip Stagg & 2 ors [2006] N305, where it discussed the issue of disclosing a reasonable cause of action. At paragraph 23 of the Supreme Court judgement, it states and I quote:

“6.	With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase ‘cause of action’. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the ‘form of action’. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action. 

7.	The phrase ‘cause of action’ could thus be defined in terms of a legal right or form of action known to law with:

‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.’ …”

8.	Also, in Kerry Lerro t/a Hulu Hara Investments Ltd v. Philip Stagg & 2 ors (supra), His Honour Justice Kandakasi (as he then was) held inter alia, and I quote: 

“Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, ‘without a Court having considered his right to be heard.’ A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.
	
At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.”…

9.	In PNG Forest Products Limited & Anor  v. Jack Genia & Anor [1992] PNGLR 85, His Honour Mr Justice Sheehan (as he then was) had the occasion to discuss the question of whether or not the Court should dismiss the entire court proceeding as being frivolous and vexatious and as being an abuse of process. At page 87 of the judgment, His Honour said, and I quote: 

"Quite apart from this rule, the court also has an inherent jurisdiction to protect itself from abuse of process. Thus, if the court is satisfied that the conditions of this rule have been satisfied, it may strike out that offending action. It can in appropriate cases, therefore, prevent a party from presenting its case in court or from defending one brought against it. But the refusal to try a party’s claim or the striking out of its defence is not lightly done, and there has been a long history of case law determining what is a ‘reasonable" cause of action or defence and what is "frivolous or vexatious".

(underlining mine)

Consideration 

10.	The Court’s power to dismiss a claim remains discretionary. For this application, let me first consider whether this proceeding discloses a reasonable cause of action. 

11.	 In the originating summons, the plaintiffs are seeking 2 declarations and 2 orders. The first declaration sought is to declare the termination of the plaintiffs null and void, ab initio and of no effect. The other declaration sought is consequential to the first where the plaintiffs seek a declaration for reinstatement to their respective positions until their contract expires or is extended by the second defendant. The 2 orders sought by the plaintiffs are to restrain the defendants from forcefully removing the plaintiffs from their offices and home, and from interfering with the performances of their duties until the conclusion of their contracts or extension thereof. 

12.	The defendants say that the plaintiffs were lawfully terminated pursuant to Clause 18.1(a) of the Contract. The Employment Act does not apply as the plaintiffs have employment contracts.  They do not argue that this proceeding fails to disclose a cause of action. They only say it is a lawful termination. For the Court to make a finding that the termination was indeed lawful, it must first decide whether a cause of action exist. In this case, the plaintiffs are seeking a declaration that their termination is unlawful. That is a matter for trial. 

13.	Secondly, the defendants argue that the mode in which the plaintiffs bring this action is wrong. They say the plaintiffs ought to have filed a judicial review application to challenge their termination notice. In the 2 affidavits of the plaintiffs filed on 22 September 2021 and 11 August 2021 respectively, they admit that the first plaintiff slapped one Aisi Anas, the Acting Pro Vice Chancellor, Academic on 3 August 2021 and together with the second plaintiff, they verbally abused him in front of staff and students. This resulted in their respective terminations. 

14.	Whether or not, the plaintiffs exhausted the administrative avenues available to them before coming to Court is another issue. This will also discuss on the filing of this proceeding prior to their letter of appeal dated 16 August 2021 and whether the decision by the Chancellor on 27 August 2021 against deliberating on the plaintiffs’ appeal was proper. These are matters for trial. The plaintiffs have chosen their path and they must now tread on it to the end.  

15.	Essentially, I find there is a cause of action disclosed by the plaintiffs in these proceedings where the plaintiffs have a right to challenge their termination notice. Whether they have chosen the right mode of proceedings is a matter, along with others, to be tried.

16.	As I have found there is a cause of action in this proceeding, it is unnecessary to consider the other submissions of counsel. 

Orders

17.	The Orders of the Court are: 

	(a)	the defendant’s application to dismiss is refused.
(b)	the defendants shall pay costs of and incidental to this application to be taxed if not agreed.
(c)	time is abridged until date of settlement. 
________________________________________________________________
Islands Legal Services:	Lawyers for the Plaintiffs 
Kamen Lawyers:		Lawyers for the Defendants