N11513
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 243 OF 2024

BETWEEN:
  JACK KORE 
Plaintiff

AND:
PASTOR CHARLES LAPA
First Defendant

AND:
LIFE OUTREACH MINISTRIES INC.
Second Defendant

MT. HAGEN: KAULE AJ
18 AUGUST, 29 SEPTEMBER 2025

PRACTICE AND PROCEDURE - Writ of Summons - Notice of Motion - Application for dismissal of proceedings for abuse of process - National Court Rules - Order 12, Rule 40 (10 (c) - Relevant considerations - Discretion of Court - Order  

Cases cited
Anderson Agiru v Electoral Commission and The State [2002] PGSC 5; SC687.
Somare v Manek [2011] PGSC 17; SC1118.
Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited [2007] PGNC 43; N3144.
Telikom PNG Limited v The Independent Consumer and Competition Commission and Digicel (PNG) Limited [2008] PGSC 5; SC906.
The National Executive Council the Attorney - General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264.

Counsel
P. Kunai, for the plaintiff
A. David Lora, for the first and second defendants
                                                                     
RULING
1.     KAULE AJ: Before this Court are two opposing applications by way of Notices of Motion: one filed by the plaintiff on 5 July, 2024 and other filed by the first and second defendants (“defendants”) on 16 August, 2024.

2.     The plaintiff’s application is for urgent interim orders. The orders sought in his Notice of Motion are as follows:

1. The requirements for service of the Notice of Motion be dispensed with pursuant to Order 4, Rule 49 (5) (ii) (d) of the Motion (Amendment) Rules 2005.

2. Leave be granted to proceed with the hearing of the Notice of Motion ex-parte pursuant to Order 4, Rule 49 (5) (ii) (d) of the Motion (Amendment) Rules 2005.

3. The Order of Mount Hagen District Court made on 12 April, 2024 in the matter Complaint No. DC – 25 of 2024 between Life Outreach Ministries Inc. -v- Jack Kore for ejectment of the Defendant/Plaintiff from the property described as Section 48, Allotment 11, Mount Hagen, WHP be stayed pending the determination of this proceeding. 

4. The time for entry of the Order shall be abridged to the time for settlement by the Assistant Registrar which shall take place forthwith pursuant to Order 12, Rule 19 of   the National Court Rules.
5. The time for service of the Originating process and other documents on the Defendants be abridged to the time of service of the Order.

6. The matter shall return for inter-partes hearing on a date to be fixed by the Court.

7. Costs of the application be costs in the cause.

8. Such further or other Orders as the Court may think fit.

3.     In support of his application, the plaintiff filed his affidavit which was sworn and filed on 5 July, 2024.

4.    The defendants seek the following orders in their Notice of Motion: 

1. The Plaintiff has not served his Writ of Summons on the Defendants and the filing and the service of the Notice of Intention to Defend is conditional pursuant to Order 6 Rule 7 (1) and pursuant to Order 6 Rule 8 (c) of the National Court Rules the Court should declare this fact.

2. The Plaintiff’s Writ of Summons be dismissed as an abuse of process of the Court pursuant to Order 12 Rule 40 (1) (c) of the National Court Rules 1983.

3. The Plaintiff be ordered to pay the costs and disbursements of the of the Defendants on indemnity basis. 

4. Any other orders as the Court sees fit.

5.    In support of the application, the defendants filed the following affidavits:

(a)	Affidavit in Support of the first defendant sworn on 15 August, 2025 and filed on 16 August, 2025.

(b)	Supplementary affidavit of the first defendant sworn on 27 August, 2024 and filed on 30 August, 2024.

(c)	Affidavit of Tom Wete sworn on 7 July, 2024 and filed on 14 August, 2024. 

6.     After I heard arguments of the parties in relation to the two applications, I reserved my ruling.

7.     Having notified the parties of today’s date for ruling, I now proceed to deliver the ruling.  

ISSUES

8.    The issues for determination are:

(a)	Whether interim orders should be granted in favour of the plaintiff.

(b) Whether the proceedings is an abuse of process of the Court and should be dismissed.

THE LAW

9.    In seeking to dismiss the proceedings for being an abuse of process, the defendants rely on Order 12 Rule 40 (1) (c) of the National Court Rules (“Rules”), which is in the following terms:

“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).........
(b).........
(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.”

10.    It is trite law that the Court’s power to deal with any possible abuse of its process is inherent in the powers the Court has. See The National Executive Council the Attorney - General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264. The Supreme Court in Anderson Agiru v. Electoral Commission and The State [2002] PGSC 5; SC687 summarized the principles that are to be applied, as follows:

“Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process.” 

11.   In Somare v Manek (2011) PGSC 17; SC1118, the Supreme Court stated the following:

“As was observed by Kandakasi J in Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited [2007] PGNC 43; N3144 and endorsed by the Supreme Court in Telikom PNG Limited v. The Independent Consumer and Competition Commission and Digicel (PNG) Limited [2008] PGSC 5; SC906 the Court has that inherent power to:
-	safeguard against an abuse of their processes;
-	avoid dividing or dealing with each cause of action and reliefs on a piece meal basis to avoid multiplicity of proceedings and increase costs to parties and taxpayers who fund the Courts;
-	avoid the unnecessary taking away of the Court’s limited time;
-	ensure that no party goes to the Court more than once over the same cause either after having failed or succeeded in an earlier action or at the same time thereby ensuring that there is only one action for each cause of action;”

CONSIDERATION

12.   I will firstly deal with the second issue, namely, whether the proceedings is an abuse of the process of the Court and should be dismissed. This is because if I find in favour of the defendants, that will be the end of this matter. However, if the defendants’ application is unsuccessful, then I will consider whether the plaintiff is entitled to the interim orders he seeks.

Issue: Whether the proceedings is an abuse of the process of the Court and should be dismissed.

13.    The defendants strongly submit that the plaintiff has abused the process of the Court by filing the proceedings in the National Court. Their main arguments are as follows:

(a)	The plaintiff did not appeal the decision of the Mt. Hagen District Court made on 12 April, 2024 (“District Court decision”) which evicted him from the property. Instead, he proceeded to file a Writ of Summons in the National Court against the defendants in respect of a claim for damages concerning the same property which was the subject of the District Court decision. It is the defendants’ position that if the plaintiff was aggrieved by the District Court decision, the proper process under the District Court Act (the “Act”) would have been to file an appeal to the National Court against that decision. That option was available to him at that time, but he failed to take that step.  

(b)	By seeking to stay the District Court decision in a separate and fresh proceedings in the National Court, without even appealing that decision, amounts to an abuse of the court process. 

14.     The plaintiff says the defendants’ application is misconceived and raises the following points, among others:

(a) Previous proceedings filed against the defendants concerning the property, which were either struck out or dismissed, were by his brother, the late Philip Kore, and not the plaintiff. The plaintiff’s action is for damages for security services provided in respect of the property for a period of over 20 years. 
(b) In the District Court the plaintiff claimed damages for looking after the property. However, the District Court only dealt with the issue of who had title to the property and found against him. The Court did not consider his claim for damages.

15.    Having heard and read submissions of counsel and carefully considering the evidence before me, I find that the plaintiff has abused the process of the Court in the following respects:

(a)	The plaintiff did not appeal the District Court decision. He allowed the time period for him to do so under the Act to lapse, without any concern at all. Then he proceeded to file the National Court proceedings when he felt threatened that he would be evicted, as the deadline of three (3) months set by the District Court for him to vacate the property, approached. The District Court decision is a valid court order that the plaintiff has not appealed against, and which can be enforced. It is an abuse of process of the Court for the plaintiff to seek to stay the District Court decision in the National Court in a Writ of Summons when he had the opportunity to appeal the same decision to the National Court, under the relevant provisions of the Act. Accordingly, the Writ of Summons, which contains a reference to a relief for stay of the District Court eviction order in the Statement of Claim, cannot stand. It should be dismissed for being an abuse of process of the Court. 
       
(b)	Paragraph 3 of the plaintiff’s Notice of Motion which seeks an interim stay of the District Court decision is a word-for-word repetition of the substantive relief he seeks in paragraph 14 (b) of his prayer for relief in his Statement of Claim.  The Rules are clear that Notice of Motions are for interlocutory relief, not substantive relief. Order 4 Rule 49 (9) provides: “Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.” To the extent that the plaintiff’s Notice of Motion pleads a substantive relief, it is in breach of the Rules and should be struck out.

(c)	Towards the end of the plaintiff’s submission, I queried his counsel whether the plaintiff would be pursuing the relief sought in paragraph 3 of his Notice of Motion, namely, that the District Court eviction order should be stayed pending the determination of these proceedings. I note the plaintiff’s counsel responses as follows:

    (i)  He conceded that “nothing should happen to the District Court order.”
    (ii) He admitted that “obviously it would amount to abuse of process.”
   (iii) Furthermore, he said “it should not be brought in to confuse the plaintiff’s claim.”

EXERCISE OF DISCRETION

16.   I am satisfied that the plaintiff has abused the process of the court by filing these proceedings in the manner and form that he did. 

17.    If the plaintiff did not claim as a relief in the Statement of Claim the stay of the District Court eviction order, the proceedings would survive and only the Notice of Motion would be dismissed. But as it is, the plaintiff’s originating process, that is, the Writ of Summons, and the Notice of Motion filed on 5 July, 2024 are liable to be dismissed.

18.     Accordingly, I uphold the defendants’ application and dismiss the plaintiff’s Notice of Motion and the entire proceedings.  

COSTS

19. The normal rule is that costs follow the event. I order costs in favour of the defendants.

ORDERS OF THE COURT

20.    The terms of the orders are as follows:

1. The defendants’ application is upheld.
2. The proceedings is dismissed for being an abuse of the process of the court.
3. The plaintiff shall pay the defendants’ costs on a party-party basis, to be taxed, if not   agreed.
4. The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
_______________________________________________________________
Lawyers for the plaintiff:    Kunai & Co. Lawyers        
Lawyers for the first and second defendants: Andano David Lorawi Lawyers