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Tai v Baker [2023] PGNC 482; N10640 (18 December 2023)

N10640

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 9 OF 2022 (IECMS)

BETWEEN:
LUKE TAI
Plaintiff

AND:
MARK BAKER as Managing Director
of Australia New Zealand Bank trading as ANZ Bank
First Defendant

AND:
AUSTRALIA NEW ZEALAND BANK
trading as ANZ BANK
Second Defendant

Waigani: Shepherd J
2023: 17^th November & 18^th December

PRACTICE AND PROCEDURE – application for summary dismissal – National Court Rules, Order 12 Rule 40(1) – whether proceeding failed to disclose reasonable cause of action – doctrine of res judicata – whether proceeding statute-barred – Frauds and Limitations Act, s.16 – whether proceeding is frivolous or vexatious – whether proceeding is abuse of process – multiplicity of proceedings – application for summary dismissal granted.

PRACTICE AND PROCEDURE - application for plaintiff to be declared vexatious litigant – principles applicable – conditions to be applied where declaration is made that plaintiff is vexatious litigant.

Cases Cited:
Agiru v Electoral Commission (2002) SC687
Geru Holdings Ltd v Kruse (2003) SC2492
Hui v Bank of South Pacific (2019) N8838
Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007
Nema v Rural Development Bank Ltd (2012) N5317
PNG Forest Products Ltd v Minister for Forests [1992] PNGLR 85
Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062
Takori v Yagari (2008) SC905
Wabia v BP Exploration Co. Ltd [1998] PNGLR 8

Counsel
Mr Luke Tai, plaintiff in Person
Ms Ethel Goina, for the Defendants

DECISION

18^th December 2023

1. SHEPHERD J: The defendants seek orders for the dismissal of this proceeding and for the plaintiff to be declared by the Court to be a vexatious litigant.

BACKGROUND

2. The claims made by the plaintiff in this suit arise from events that occurred more than 30 years ago. The events in question have already been the subject of protracted court proceedings taken by the plaintiff against the second defendant in both the National Court and on appeal to the Supreme Court. Both of those prior proceedings have long since been heard and determined in favour of the second defendant. The plaintiff now seeks to relitigate matters in the Human Rights Track of the National Court based on the same events.

National Court proceeding – OS No. 519 of 1996

3. On 3 December 1996 the plaintiff filed an originating summons in the National Court styled OS No. 519 of 1996: Luke Tai v Rod M Leader, Manager, Port Moresby Branch Australia & New Zealand Banking Group (PNG) Limited and Australia & New Zealand Banking Group (PNG) Limited.
4. The plaintiff’s originating summons sought judicial declarations and related orders against the second defendant (Bank) for redeeming a term deposit for K40,000 (IBD) which the plaintiff had invested with the Bank on 3 September 1990. In November 1992 the Bank applied the proceeds of the plaintiff’s IBD in partial satisfaction of three outstanding loan accounts of the plaintiff. loan accounts which at that time had totalled K57,562. The plaintiff’s IBD had been given as collateral security for his loan accounts.
5. On 7 July 1998 the National Court ordered that the plaintiff’s suit in OS No. 519 of 1996 was to proceed by way of pleadings.
6. The plaintiff’s statement of claim was filed on 29 July 1998. The plaintiff pleaded breach of contract and commission of the tort of negligence by the Bank. The plaintiff alleged that the Bank had failed to take reasonable care in its dealings with the plaintiff’s IBD which had resulted in financial loss to the plaintiff.
7. The National Court’s decision in OS No. 519 of 1996 was delivered by Injia DCJ (as he then was) on 23 February 2005. The Court found on the evidence that the plaintiff had not disputed that he owed the Bank a total sum of K57,562 as at September 1992. The Court further found that the Bank had the contractual right to foreclose on the plaintiff’s IBD under the terms of the instrument of charge which the plaintiff had signed as security for loans advanced by the Bank to the plaintiff from time to time. The Court ruled that the decision of the Bank to foreclose on the IBD was a commercial decision which the Court could not interfere with and that foreclosure had occurred because of the plaintiff’s inability to repay his indebtedness in good time. The plaintiff’s claim was dismissed, with costs awarded to the Bank.

Supreme Court appeal - SCA No. 25 of 2005

8. The plaintiff appealed the National Court’s decision by filing SCA No. 25 of 2005 in the Supreme Court on 31 March 2005. The plaintiff’s notice of appeal pleaded, among others, that the trial judge had erred when finding that the plaintiff had difficulties in repaying his loan commitments when the plaintiff was not experiencing financial difficulties at all; that the Bank’s decision to redeem the whole of the plaintiff’s IBD was unfair and unreasonable; and that the Bank had acted negligently and in bad faith.
9. The judges comprising the Supreme Court (Gavara-Nanu, Gabi and Yagi JJ) delivered their unanimous decision on 27 November 2009 and found that there had been no error of law committed by the trial judge. The plaintiff’s appeal was dismissed with costs. This is what the Supreme Court had to say at paras. 43 to 46 of its decision:

“ 43. The terms of the charge [stipulated] clearly that the appellant had irrevocably authorised the bank to foreclose on all or part of his Term Deposits whenever there is a debt, whether immediate or contingent, owed to the bank.

44. In this case, when the appellant defaulted, the bank issued to him a written notice of demand by way of a letter dated 7^th October 1992. The notice was forwarded by post to the appellant’s mailing address “P.O. Box 9080, Hohola, National Capital District”. At that time the appellant failed to pay the monthly instalment of K2,799.00 and was indebted to the bank in the sum of K57,562.00.

45. On the evidence there is a substantial debt owing to the bank at the time the bank exercised its right to foreclose on the Term Deposit.

46. For all the above reasons, we find that the trial judge committed no error as alleged in the appeal and accordingly dismiss the appeal with costs.”

10. Aggrieved by the Supreme Court’s decision, on 2 January 2010 the plaintiff filed a ‘slip rule’ application in SCA No. 25 of 2005 under s.155(4) of the Constitution. The plaintiff claimed that the Supreme Court had erred in certain respects of its decision handed down on 27 November 2009.
11. For reasons which have not been explained, the plaintiff’s slip rule application did not come on for hearing by his Honour Gavara-Nanu J until 2 November 2017, almost 8 years after the Supreme Court’s decision of 27 November 2009. His Honour’s decision was delivered on 11 April 2018 and is reported as SC1681. His Honour observed that there had already been 27 years of litigation up to that time and that public interest requires that litigation be brought to finality to prevent not only abuse of the courts’ processes but also to prevent further prejudice and damage to the interests of those who are directly affected by prolonged litigation.
12. His Honour stated in his ruling that a ‘slip rule application’ under s.155(4) of the Constitution should only be used to correct a glaring error of law or fact. The Supreme Court when exercising its powers of review of one of its own decisions must be satisfied that the error is on a critical issue affecting a primary right of the applicant which must be protected and enforced before a case can be reopened. The error must be little short of extraordinary. His Honour went on to find that the plaintiff had not shown any clear and manifest error of law or fact in the Supreme Court’s decision of 27 November 2009 but was instead asking the Court to allow a rehashing of arguments which had already been canvassed by the plaintiff at the substantive hearing of the appeal in SCA No. 25 of 2009. The plaintiff’s ‘slip rule’ application was dismissed, again with costs awarded to the Bank.

WS (JR) No. 9 of 2022

13. Four years after the plaintiff’s ‘slip rule’ application was dismissed by the Supreme Court on 11 April 2018, the plaintiff filed this present National Court proceeding WS (H/R) No. 9 of 2022 on 29 June 2022.
14. In this latest suit the plaintiff’s statement of claim has repeated many of the alleged matters pleaded in his earlier National Court and Supreme Court proceedings in support of his claims of breach of contract and commission of negligence by the Bank. The only significant difference in the latest proceedings filed some 30 years after the events complained of by the plaintiff is that the plaintiff has now belatedly alleged fraud on the part of the Bank and has claimed that the Bank has wrongfully withheld from him a State Lease for a property he says he owns at Gerehu described as Allotment 41 Section 302 Hohola, NCD. In this latest proceeding the plaintiff seeks orders for the Bank to return to him his State Lease for his property at Gerehu, general damages for pain and suffering and interest at the rate of 8.75% (presumably per annum) on an amount of K60,060.32 computed as from October 1992 to date of judgment.
15. One unusual aspect of the plaintiff’s latest suit is that the present managing director of the Bank, Mr Mark Baker, has been cited as the first defendant. The plaintiff pleads in paragraph 2 of his statement of claim that Mr Baker is sued “for his actions and inactions and that of his predecessors”. Yet there is no allegation in the plaintiff’s statement of claim that Mr Baker was the Bank’s managing director at the material time when the events complained of took place more than 30 years ago in 1992. Instead, in the remainder of the statement of claim, Mr Baker is lumped in with references to his predecessors and to the Bank generally as “the Defendants” as if Mr Baker could, in some undisclosed way, be personally or vicariously responsible in law for the actions of his predecessors at the Bank.
16. I also note that the plaintiff has incorrectly sued the Bank as second defendant in the name and style “Australia New Zealand Bank trading as ANZ Bank” instead of the Bank’s registered corporate name of “Australia and New Zealand Banking Group (PNG) Limited”.

APPLICATIONS BEFORE THE COURT

17. The interlocutory aspects of this proceeding WS (HR) No. 9 of 2020 were previously dealt with by Deputy Chief Justice Kandakasi. His Honour transferred the case on 5 September 2023 and it was listed to come before me on 18 October 2023.
18. The plaintiff, who is representing himself in this suit, appeared before me in person on 18 October 2023. Ms Ethel Goina of Dentons Lawyers appeared for the Bank on that occasion. Ms Goina informed the Court that there were three motions which were outstanding at that time, namely:

(1) the plaintiff’s motion filed on 6 March 2023 seeking default judgment;

(2) the Bank’s motion filed on 9 March 2023 seeking an extension of time to file a defence; and

(3) the Bank’s motion filed on 11 May 2023 seeking dismissal of this proceeding and an order that the plaintiff be declared a vexatious litigant.

19. An order was made by me on 18 October 2023 which set all three motions down for hearing as a special fixture on 17 November 2023 at 9.30 am. Term 2 of the order stated that if there was default in appearance by any party on 17 November 2023, either in person or by counsel, the motion or motions of that party would be dismissed with costs. It was made clear to the plaintiff and counsel for the Bank on 18 October 2023 that there would be no further adjournments and that they were to each come fully prepared to address the Court on 17 November 2023 on their respective motions.
20. On 17 November 2023 the plaintiff again appeared in person. Ms Goina appeared for the Bank. I informed the plaintiff and Ms Goina at the outset that morning that I would hear the plaintiff’s motion seeking default judgment followed by the Bank’s motion for dismissal, and would then reserve. If default judgment and dismissal were not granted after reserving on the first two motions, only then would I hear the Bank’s motion seeking an extension of time to file its defence.
21. When the plaintiff stood to move his motion for default judgment on 17 November 2023, it became apparent that he was unprepared to proceed with his application. The plaintiff had none of his Court papers for this case with him. He was unable to inform the Court what affidavit material he intended to rely on in support of his motion. I therefore called the plaintiff to the witness box and administered the witness’s oath to him. I gave leave to Ms Goina to produce to the plaintiff a copy of his principal affidavit filed in support of his motion for default judgment. The reason for this was so that the plaintiff could refresh his memory as to the content of that affidavit and then proceed with his motion for default judgment. However, the plaintiff was vague in the extreme in his responses to questions put to him by myself and Ms Goina in connection with the matters he had deposed to in his principal affidavit despite having the affidavit in front of him. The plaintiff then requested an adjournment so that he could return to Court to pursue his motion for default judgment at a later date. The plaintiff’s application in this regard was refused on the basis that he was present in Court on 18 October 2023 and had been forewarned to come ready to move his motion for default judgment on 17 November 2023 and to oppose the Bank’s two motions. I also reminded the plaintiff that the Bank’s position in this suit is that it is time-barred under the Frauds and Limitations Act Chapter 1988. I enquired of the plaintiff if he wished to proceed with his motion or to seek leave for its withdrawal, particularly in view of the time-bar issue and the matters which had been deposed to in the extensive affidavit material filed for the Bank in support of its two motions. The plaintiff was given time to consider his options, The plaintiff then informed the Court that he would withdraw his motion. Leave was accordingly granted to the plaintiff to withdraw his application for default judgment.
22. I then proceeded at the hearing on 17 November 2023 to hear the Bank’s motion for dismissal on the basis that there would be no utility in the Court also hearing the Bank’s separate motion seeking extension of time to file a defence if the Court were to determine that this proceeding should be summarily dismissed under Order 12 Rule 40(1) of the National Court Rules with the consequential orders sought by the Bank.
23. By its motion filed on 11 May 2023 the Bank seeks the following orders:

(1) That this proceeding be dismissed pursuant to Order 12 r. 40 (1) (a). (b) and (c) of the National Court Rules for disclosing no reasonable cause of action, for being frivolous and vexatious and for being an abuse of court process.

(2) That the plaintiff be declared a vexatious litigant with attendant orders pursuant to Order 12 r. 1 of the National Court Rules, Section 155(4) of the Constitution and the Court’s own inherent jurisdiction.

24. This decision therefore addresses the issues raised by the Bank’s motion filed on 11 May 2023 whereby the Bank is seeking the summary dismissal of this proceeding and for the Court to declare the plaintiff a vexatious litigant.

THE DISMISSAL APPLICATION

25. Order 12 r. 40 (1) of the National Court Rules (NCR) provides:

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,

(d) the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

26. The relevant principles which apply to applications to dismiss under each or any of the grounds set out in Order 12 r. 40(1) NCR are well established. The Supreme Court in Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007 (Gavara-Nanu, Davani, Yagi JJ) conveniently summarises those principles at paras. 27 to 30 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 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 have 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. ”

Order 12 Rule 40(1)(a) NCR – does this proceeding disclose any reasonable cause of action?

27. In this instance the Bank submits that this proceeding discloses no reasonable cause of action because the plaintiff, by his statement of claim, has disguised this suit as a human rights application to seek different heads of relief from his earlier court proceeding so as to avoid the defence of res judicata.
28. I agree with counsel for the Bank. I find that the plaintiff’s statement of claim shows that it is a claim based on almost the same facts and issues which have already been determined by the National Court and the Supreme Court. It is not a genuine claim based on sections 57 and 58 of the Constitution.
29. To the extent that the plaintiff’s statement of claim introduces allegations of fraud and deceitful conduct by the Bank in the manner in which his IBD was redeemed to offset his indebtedness under three loans in late 1992, those allegations are premised on the same facts and raise the same issues that were already raised by the plaintiff and determined by the National Court in OS No. 519 of 1996 and confirmed on appeal in SCA No. 25 of 2005.
30. The plaintiff has alleged in his statement of claim that the Bank:

(1) failed to issued arrears notices to him and give him reasonable time to pay those arrears;

(2) failed to take legal action as forewarned in the Bank’s letter to him of 7 October 1992;

(3) offset his loan arrears against his IBD without transferring funds from his savings account;

(4) offset his loans against his IBD instead of using other securities such as his truck under a bill of sale to the Bank or under an alleged mortgage.

31. All of these allegations were raised in the prior proceedings and fully considered by the National Court, which held that the Bank was entitled to foreclose on the charge over the plaintiff’s IBD upon the plaintiff falling into arrears and that the Bank did not breach any of the conditions of the charge when it exercised its commercial decision to foreclose on the IBD. The National Court’s judgment was then upheld by the Supreme Court on appeal when it reviewed the evidence that was before the National Court.
32. In Nema v Rural Development Bank Ltd (2012) N5317 Hartshorn J identified six factual matters that must be established by a party who asserts that the doctrine of res judicata applies such that a claimant is estopped from bringing further proceedings based on an earlier claim that has already been judicially determined. The six probanda, with my responses, are these:

(1) Was the earlier decision a judicial decision?

Yes. It was the decision of the National Court, upheld by the Supreme Court.

(2) Was the judicial decision pronounced?

Yes. There is a written decision of the National Court.

(3) Did the judicial tribunal have competent jurisdiction?

Yes. It was the National Court, a court of unlimited jurisdiction subject only to the Constitution: s166(1).

(4) Was the judicial decision final?

Yes. It was a final decision of the National Court after a substantive trial of the matter on the merits, which was then upheld by a final decision of the Supreme Court which remained final after being challenged by an unsuccessful ‘slip rule’ application by the plaintiff.

(5) Did the judicial decision involve the determination of the same question?

Yes. The cause of action pleaded in OS No.519 of 1996 was breach of an alleged duty by the Bank to take reasonable care in dealing with the plaintiff’s IBD. That pleading has been repeated with the same or similar facts in this proceeding OS (HR) No. 9 of 2022 to support the addition of a further claim of alleged fraud and deceitful conduct but the facts pleaded in this latest proceeding are essentially the same.

33. I am satisfied that the pleading in the statement of claim, such that it is, concerns and is in essence the same as the causes of action pleaded in OS No. 519 of 1996. The plaintiff is therefore estopped from bringing and pursuing this proceeding by operation of the doctrine of res judicata.
34. There is one further and insurmountable obstacle to the plaintiff’s latest proceeding which, even if it were otherwise a valid suit, prevents it from disclosing any reasonable cause of action. There can be no doubt that this proceeding is statute-barred.
35. I observe that in the plaintiff’s attempt to relitigate this matter, he has endeavoured to expand his alleged causes of action against the Bank to include the tort of fraud, also known as deceit.
36. I find that the particulars of fraud that have been pleaded by the plaintiff in paragraph 19 of his statement of claim do not establish the elements of fraud. Rather, those particulars amount to alleged breach of contract. The plaintiff’s claim for breach of contract, framed as breach of a contractual duty of care, has already been fully litigated in the prior National Court proceeding.
37. But even if fraud could be proven, which I say on the evidence adduced before this Court in this proceeding to date it could not, such a claim along with all other claims pleaded in this latest proceeding would have become statute-barred in November 1998, six years after the events complained of by the plaintiff which occurred in November 1992. This is because s.16 of the Frauds and Limitations Act 1988 provides:

16. Limitation of actions in contract, tort etc.

(1) Subject to Sections 17 and 18, an action –

(a) that is founded on simple contract or tort; ...

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

38. Section 17 of the Act relates to actions within the admiralty jurisdiction of the National Court. Section 18 of the Act applies to claims for specific performance, injunctions and other equitable relief. Those provisions have no bearing on causes of action based on breach of contract, the tort of negligence and the tort of fraud, these being the causes of action pleaded by the plaintiff in this present suit. Section 16 of the Frauds and Limitations Act 1988 operates as a complete bar to the plaintiff’s latest proceeding.
39. For the foregoing reasons this proceeding must accordingly be dismissed for failure to disclose any reasonable cause of action within the meaning and purport of Order 12 r.40(1)(a) NCR.
    

Order 12 Rule 40(1)(b) NCR – is this proceeding frivolous and vexatious?

40. In Takori v Yagari (2008) SC905 (Kirriwom J, Gavara-Nanu J, Kandakasi J) it was said that a frivolous claim is one that is characterised as a claim that is plainly and obviously untenable. A vexatious claim is one that cannot succeed because it is a sham but goes further in that it seeks to harass the opposing party and put that party to unnecessary trouble and expense in defending the proceeding. The Supreme Court was here endorsing what was said in similar vein by the National Court in Wabia v BP Exploration Co. Ltd [1998] PNGLR 8 (Sevua J).
41. The Court also has an inherent power and a duty to protect itself from frivolous claims by litigants: PNG Forest Products Ltd v Minister for Forests [1992] PNGLR 85 (Sheehan J).
42. It will be apparent from the foregoing analysis of the plaintiff’s latest proceedings, which I have determined disclose no reasonable cause of action, that the plaintiff’s claims in this suit cannot possibly succeed. Furthermore, the Bank has been harassed and seriously inconvenienced by having to respond at length to a proceeding which, quite apart from anything else, is time-barred.
43. I accordingly find that this proceeding is both frivolous and vexatious and that Order 12 r. 40(1)(b) NCR requires dismissal of this suit.

Order 12 Rule 40(1)(c) NCR – is this proceeding an abuse of the Court’s process?

44. The Bank asserts that this proceeding is an abuse of process because it amounts to a multiplicity of proceedings. The Supreme Court in Agiru v Electoral Commission (2002) SC687 (Hinchliffe, Jalina, Batari JJ) held:

“ The Court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding. ”

45. The plaintiff’s claims have already been determined by the National Court in proceeding OS No. 519 of 1996 and further determined on appeal by the Supreme Court in SCA 25 of 2005, a further slip rule application by the plaintiff to the Supreme Court having been refused. This latest proceeding by the plaintiff is an attempt, many years later, to bypass the determinative effect of the dismissal of the plaintiff’s prior proceedings against the Bank.
46. There are further cogent reasons why the Bank submits this proceeding is an abuse of process.
47. A Court can only direct entry of such judgment against a defendant as the plaintiff appears to be entitled on his originating process. Here the plaintiff is seeking an order for the Bank to return to him a State lease which the Bank contends it has never held. The plaintiff is also seeking damages for unjust deprivation of property as well as interest in respect of his IBD since October 1992 and general damages for alleged pain and suffering.
48. As to the plaintiff’s claim for more than K60,000 as interest on his IBD dating back to 1992, it need hardly be repeated that the plaintiff’s earlier claim alleging wrongdoing by the Bank in enforcing the charge given as security over the IBD was dismissed by the National Court and then dismissed again by the Supreme Court on appeal. The National Court held, and the Supreme Court confirmed, that the plaintiff’s IBD was properly dealt with by the Bank and that the plaintiff was not entitled to reimbursement of those funds. There is therefore no basis in fact and in law for the plaintiff to be entitled to claim, as he has done in his latest statement of claim, interest on an IBD that was redeemed by the Bank in 1992 to offset the plaintiff’s indebtedness to the Bank.
49. Furthermore, any pain and suffering which the plaintiff alleges he has experienced over the years as a result of events that took place back in 1992 is not compensable in view of the findings of both the National Court and the Supreme Court that the Bank acted lawfully and within its commercial powers by redeeming the IBD to offset the plaintiff’s indebtedness. If the plaintiff has suffered any deterioration in his health, then it is self-inflicted to the extent that the plaintiff has not accepted the findings of both the National Court and the Supreme Court on his claims against the Bank.. The plaintiff has failed to take competent legal advice. He does not appear to understand the reasons that have underpinned the judicial pronouncements on his case which have already been made by the National Court and the Supreme Court.
50. The plaintiff has pleaded in paragraph 15 of his statement of claim that the Bank has not returned to him a title deed, presumably a State lease, for a property known as Allotment 41 Section 302 Hohola (Gerehu), NCD (the Gerehu property). The plaintiff has pleaded that the Bank originally held the title deed as security for three of his loans but by not returning the title deed to him the Bank is guilty of “unjustly depriving the Plaintiff of his property since November 1992.”
51. The plaintiff does not clarify elsewhere in his statement of claim whether his vague reference to deprivation of “property” in paragraph 15 of his statement of claim is a reference to him having been allegedly deprived of having the title deed returned to his physical possession by the Bank or whether the Bank has allegedly somehow deprived him of the benefit of possession and ownership of the Gerehu property itself.
52. This is what the plaintiff says in on page 4 of a letter he addressed to the Bank dated 27 July 2023, a copy of which letter is annexure “D” to his affidavit filed on 30 May 2023:

“ Furthermore for some unknown reason the bank still has my title over State lease described as Section 302 Allotment 41 Gerehu which has prevented me from conducting any business thus adding to my problems I already have.”

53. The Bank has vigorously denied the plaintiff’s contention that the Bank has ever held the plaintiff’s title deed for the Gerehu property.
54. Ms Lily Benoma is a paralegal with the Bank. Ms Benoma, in her affidavit filed on 6 April 2023, deposes to the effect that on becoming aware of the plaintiff’s claim that the Bank had allegedly been holding the title deed for the Gerehu property as security for his loans from the Bank, she and other staff at the Bank conducted an extensive search for the title deed at the Bank. Ms Benoma confirmed as a result of that search that the Bank has never held the title deed. Ms Benoma also deposed in her affidavit that enquiries were made of personnel at Kina Bank, which purchased the Bank’s retail business several years ago, and that Kina Bank has similarly confirmed that it does not hold any title deed for the Gerehu property.
55. Ms Benoma’s affidavit is supplemented by the affidavit from Ms Wavie Kendino, the Bank’s corporate secretary and head of the Bank’s Legal Unit. Ms Kendino deposes in paras. 6 to 8 of her affidavit filed on 11 July 2023:

“ 6. I refer to and rely on the Affidavit of Lily Benoma sworn and filed on 6 April 2023 in this proceeding (Court document #20), deposing that ANZ does not hold the Plaintiff’s copy of the title for Allotment 41 Section 302, Hohola, National Capital District (the Property).

7. Further to these searches, ANZ also conducted extensive searches of its records for any mortgage document over the Property and did not locate any mortgage document or evidence that ANZ took a mortgage over the Property.

8. On 8 June 2023, ANZ was able to successfully conduct a title search at the Department of Lands & Physical Planning – Titles Office and located the title file for the Property. ANZ’s title search confirms that the title file is available and there is no mortgage registered to ANZ on the title to the Property.”

56. Annexed to Ms Wavie’s affidavit and marked “WK2” is a photocopy of the title deed for the Gerehu property which the Bank obtained from the Titles Office on 8 June 2023. The title deed for the Gerehu property is State Lease Volume 80 Folio 149. It shows that the Housing Commission (as it was formerly known) was the initial registered proprietor of the Gerehu property but that title was transferred to Lucas Lakayari and Augusta Yapiwan as joint tenants on 22 July 1985. If the plaintiff ever purchased the Gerehu property from its last registered owners, no evidence of transfer of title to the plaintiff is apparent on the face of the search copy of State Lease Volume 80 Folio 149 which is annexed to Ms Wavie’s affidavit. The plaintiff has not filed any affidavit material to explain how he may have acquired title to the Gerehu property or how or when he allegedly passed the title deed to the Bank back in 1990 or 1991 as security for his loans from the Bank.
57. It is clear that if the plaintiff ever had the owner’s official copy of State Lease Volume 80 Folio 149, then that title deed has gone missing from his own possession over the years. Be that as it may, the plaintiff has at all material times been at liberty to apply to the Registrar of Titles for a replacement title deed to be issued to him under s.162 of the Land Registration Act 1981 on production of the documentation required by that section of the Act. There is no evidence in this present proceeding that the plaintiff has ever availed himself of that statutory procedure to obtain a replacement of the title deed for the Gerehu property.
58. Based on the evidence of Ms Wavie, I find that the Bank has never placed any impediment which would have prevented the plaintiff from applying to the Registrar of Titles for a replacement to be issued for the State Lease for the Gerehu property. The plaintiff can still do so if he can establish to the satisfaction of the Registrar of Titles that he is entitled to be registered as the proprietor of State Lease Volume 80 Folio 149 as a result of a valid transfer of the Gerehu property to him from its previous owners.
59. In paragraph 22 (ii) of the plaintiff’s statement of claim, he seeks an order for damages “for deprivation of property to be assessed”. No source of jurisdiction for the Court to grant such orders is cited. The plaintiff does not even refer in his claim for relief to s. 53 of the Constitution - protection from unjust deprivation of property - as the source of the Court’s jurisdiction to grant enforcement and compensation for alleged breach of basic Constitutional rights. There is no pleading to this effect at all by the plaintiff.
60. No further alleged facts going to deprivation of property other than the nebulous and ambiguous reference to “property” are set out in the plaintiff’s latest statement of claim which, if proven, could substantiate a claim in damages for unjust deprivation of property. This aspect of the plaintiff’s latest claim discloses no reasonable cause of action against the Bank, which I am satisfied on the evidence has never held the title deed for the Gerehu property and therefore the Bank cannot be held to be accountable to the plaintiff for its return or its loss.
61. For all of these reasons I am satisfied that this proceeding is not only an abuse of the Court’s process for the purposes of Order 12 r.40(1)(c) NCR but it has also failed to disclose any reasonable cause of action and is furthermore a proceeding which is frivolous and vexatious within the meaning of Order 12 r. 40(1)(a) and (b) NCR and must be dismissed.
    

APPLICATION TO DECLARE THE PLAINTIFF A VEXATIOUS LITIGANT

62. The Bank seeks an order that the plaintiff be declared a vexatious litigant as a result of bringing this latest proceeding. If the Court is minded to make that declaration, the Bank seeks the imposition of strict conditions should the plaintiff endeavour to again relitigate matters that have already been determined by the National Court and the Supreme.

The law on vexatious litigants

63. The National Court has power under Section 155(4) of the Constitution. Order 12 r. 1 NCR and its own inherent jurisdiction to declare a person to be a vexatious litigant.
64. The leading case dealing with this issue is Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062 (Lay J) where the principles relating to vexatious litigants are fully set out. The principles are based on an abundance of case law dealing with the Court’s jurisdiction to deal with abuse of process. The principles, posed as questions, are these:

(1) Has the litigant commenced a proceeding that has little or no basis in law but has the effect of subjecting the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant?

(2) Has the litigant sued the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations?

(3) Does the litigant rely on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon?

(4) Has the litigant automatically challenged every decision on appeal and refuses to take any notice or give any effect to orders of the court?

65. It will be apparent from the chronology and findings set out earlier in this decision that the answer to each of the above four questions which apply when the Court is asked to declare the plaintiff in this proceeding a vexatious litigant is a resounding ‘Yes’. The Court’s findings have established that the plaintiff’s statement of claim in this action discloses no reasonable cause of action, that the proceeding is itself frivolous and vexatious and that the proceeding constitutes a serious abuse of process. Each of the separate elements for dismissal of this proceeding pursuant to Order 12 Rule 40(1) NCR have been made out to the satisfaction of the Court. By commencing this present proceeding, the plaintiff has relied essentially on the same causes of action, disguised as a human rights action with some minor variations, which have already been fully determined by the National Court in OS No. 519 of 1996 in favour of the Bank and confirmed on appeal by the Supreme Court in SCA No. 25 of 2005. Moreover, even if the plaintiff did have a novel cause of action against the Bank based on alleged fraud, which he most certainly does not, any such further claim as well as all prior claims made by the plaintiff in his previous proceedings against the Bank are time-barred under s.16 of the Frauds and Limitations Act 1988.
66. I am accordingly persuaded that this is an appropriate case for the plaintiff to be declared a vexatious litigant.
67. I am mindful that when the Court declares a person to be a vexatious litigant, the order of the Court should be specific as to the conditions that are ancillary to the declaration. An example of this, referred to by the Supreme Court at paragraph 28 of its decision in Geru Holdings Ltd v Kruse (2003) SC2492 (Collier, Geita & Dowa JJ), is the order that was made by Thompson J in Hui v Bank of South Pacific (2019) N8838 where her Honour expressly ordered:

“ The First and Second Plaintiffs are declared vexatious litigants in relation to the Defendant and are thereby prevented from commencing any further proceedings against the Defendant unless the Plaintiffs first obtain leave of the Court. ”

68. The Bank’s subject motion seeking an order that the plaintiff be declared a vexatious also sets out a comprehensive range of conditions which the Bank submits should be attached to any order which the Court might make by way of judicial declaration that the plaintiff is a vexatious litigant. I agree that those conditions, extensive though they may be, are appropriate as they are designed to prevent the Bank being subjected to further unwarranted inconvenience, harassment and expense unless the plaintiff first obtains leave of the Court to commence fresh proceedings. The conditions sought by the Bank will be reflected in the substantive order which the Court will make.
    

COSTS

69. The general rule is that costs follow the event, which is to say that the successful party has its legal costs paid by the losing party calculated by reference to the scale of party/party costs set out under Table 1 of Schedule 2 NCR. The Bank has not sought that the plaintiff should pay its costs on a solicitor/client basis. Costs are in the discretion of the Court. I see no reason to depart from the general rule. The plaintiff is to pay the Bank’s costs of this present proceeding on a party/party basis, such costs to be taxed if not agreed.

FORMAL JUDGMENT

70. The formal judgment of the Court is as follows:

(1) This proceeding is entirely dismissed.

(2) The Court declares the plaintiff Mr Luke Tai to be a vexatious litigant.

(3) The plaintiff Mr Luke Tai is hereby restrained from commencing any new originating process or filing any further application in any form whatsoever in any court or tribunal concerning the exercise of security rights by the Australia and New Zealand Banking Group (PNG) Limited in November 1992 over the plaintiff’s term deposit established in September 1990 (the matter already determined) without:

(a) paying all costs orders for which he is liable in previous proceedings OS No. 519 of 1996, SCA No. 25 of 2005 and this proceeding WS (HR) No. 9 of 2022; and

(b) obtaining written professional advice from a lawyer that considers each of the prior court proceedings along with the decision of the National Court giving rise to this Order in respect of the matter already determined, and which professional advice formally recommends the commencement of the proposed new proceeding; and

(c) filing an Originating Summons only seeking leave of the National Court to commence the new substantive proceeding; and

(d) filing an affidavit that fully discloses and places before the National Court considering the grant of leave, in a full and frank way:

(i) the precise and complete form of the proposed originating process for which leave is sought; and

(ii) the existence and content of this Order; and

(iii) of all prior court proceedings brought with respect to the matter already determined; and

(iv) filing an undertaking to pay the indemnity or other costs of the proposed new proceeding if ordered by the National Court to do so; and

(v) serving the Originating Summons referred to in term 3(c) of this Order and all supporting documents on the head office in Port Moresby, NCD of the Australia and New Zealand Banking Group (PNG) Limited not less than 10 clear business days before the hearing of the application seeking leave; and

(e) being granted the leave of the National Court to commence new originating process concerning the matter already determined as set out in the Originating Summons seeking that leave.

4. The Plaintiff shall pay the Defendant’s party/party costs of and incidental to this proceeding in WS (HR) 9 of 2022, such costs to be taxed if not agreed.
5. The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.
   

Judgment accordingly

___________________________________________________________________
Luke Tai: Plaintiff in person
Dentons Lawyers: Lawyers for the Defendants