Andrew Nagari v Rural Development Bank; Rural Development Bank v Andrew Nagari {2007) N3295

• Jurisdiction: Papua New Guinea
• Judge: Gavara–Nanu, J
• Judgment Date: 16 April 2007
• Court: National Court
• Citation: (2007) N3295
• Docket Number: WS 1030 OF 2004
• Year: 2007
• Judgement Number: N3295

Full Title: WS 1030 OF 2004; Andrew Nagari v Rural Development Bank; Rural Development Bank v Andrew Nagari {2007) N3295

National Court: Gavara–Nanu, J

Judgment Delivered: 16 April 2007

N3295

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1030 OF 2004

BETWEEN:

ANDREW NAGARI

Plaintiff / Cross-Defendant

AND:

RURAL DEVELOPMENT BANK

Defendant / Cross-Claimant

Waigani: Gavara-Nanu, J

2007: 11 & 16 April

PRACTICE AND PROCEDURE – District Court Complaint duplicating claims in a National Court proceeding – Whether District Court proceedings are bona fide – Abuse of process.

PRACTICE AND PROCEDURE – National Court – Inherent jurisdiction to summarily determine - Abuse of judicial process generally.

PRACTICE AND PROCEDURE – District Courts Act Chapter No. 40, s. 24 (1) & (2) – Transfer of proceedings to the National Court - Circumstances in which such transfer may amount to an abuse of process.

Case cited:

Karl Paul v. Aruai Kispe, N2085

PNG Forest Limited v. The State [1992] PNGLR 85

Counsel:

R. Sak for the plaintiff

R. Bradshaw for the defendant

1 Gavara-Nanu J: There are two motions before me. One is by the defendant, filed on 24 January, 2007 and the other by the plaintiff, filed on 27 March, 2007.

2. The defendant’s motion seeks orders that permanent ex-parte restraining orders obtained by the plaintiff in respect of Complaint No. 3355 of 2004, filed at the Port Moresby District Court on 11 August, 2004 (‘the Complaint’) be dismissed for abuse of process. Alternatively, the Complaint be dismissed for want of prosecution and the ex-parte orders obtained by the plaintiff at the Port Moresby District Court on 11 August, 2004, pursuant to the Complaint be set aside with costs.

3. The plaintiff’s motion on the other hand seeks orders that the Complaint be brought up to the National Court and be extended and the ex-parte orders made by the National Court in respect of these proceedings on 15 November, 2006, for time to be extended for the defendant to file its cross-claim be set aside and the defendant’s cross-claim filed on 16 November, 2006 be either dismissed or struck out for being frivolous, vexatious and having no reasonable cause of action and abuse of process. The plaintiff also seeks orders that the defendant take appropriate actions to obtain a trial date and expedite the hearing of this action.

Background

4 To put the two motions in perspective, it is appropriate that I discuss the background of the two motions. The background facts to the two motions are sufficiently set out in the plaintiff’s affidavit sworn on 27 March 2007. The facts reveal that the plaintiff was formerly employed by the defendant as its Managing Director, but was terminated before serving out his full term. The termination took effect on 3 June, 2004 and on 5 August, 2004. The plaintiff commenced these proceedings claiming damages in excess of K100, 000.00 for breach of contract.

5 While being employed by the defendant, the plaintiff purchased a motor vehicle, a Toyota Land-Cruiser (‘the vehicle’), through the defendant’s staff loan scheme. The plaintiff was still paying off the loan through fortnightly deductions from his pay when he was terminated. Thus, at the time of his termination, the loan was still outstanding. After his termination, the plaintiff was told by the new Managing Director in a letter dated 6 August, 2004, to return the vehicle. He was told that he still owed K5, 313.00 to the defendant from his loan thus the defendant had the right to repossess the vehicle under the terms of the bill of sale. He was warned in the letter that if the vehicle was not returned by 11 August, 2004, the police would impound it.

6 On 11 August, 2004, the plaintiff filed the Complaint for damages and obtained permanent ex-parte restraining orders restraining the defendant, its servants and agents, including police from impounding the vehicle.

7 It is noted that the claims pleaded by the plaintiff in the Complaint are exactly the same as the claims pleaded in the Statement of Claim in these proceedings except for the relief sought; in that, in the Complaint the plaintiff sought general damages and a permanent restraining orders whereas in these proceedings the plaintiff seeks damages in excess of K100, 000.00.

8 On 11 August, 2004, apart from obtaining the permanent ex-parte orders to restrain the defendant, its servants and argents from impounding the vehicle, the plaintiff also obtained orders for the Complaint to be transferred to the National Court to be listed together with these proceedings for hearing.

9 On 22 September, 2005, Allens Arthur Robinson Lawyers who initially acted for the defendant sought orders at the Port Moresby District Court to set aside the permanent ex-parte restraining orders obtained by the plaintiff on 11 August, 2004. The application was refused on the basis that the matter had already been transferred to the National Court.

Submissions

10 Mr Sak argued that the permanent ex-parte restraining orders granted by the Port Moresby District Court on 11 August, 2004 are valid because the defendant has not appealed them. It was argued that the orders should therefore be allowed to remain and the defendant should now take appropriate actions to expedite the hearing of these proceedings.

11 Mr Bradshaw on the other hand argued that the Complaint is a duplication of these proceedings and is an abuse of process and should be dismissed. Mr. Bradshaw argued quite forcefully that litigants should not get away with this type of practice, because if such practice is allowed, it will open flood gates for litigants to run to the District Court for orders over matters which are subject of proceedings in the National Court. He argued that the National Court has a duty to prevent its processes from being abused. He said the plaintiff should have obtained the restraining orders from the National Court and not from the District Court.

12 Mr. Sak told the Court that the plaintiff obtained the ex-parte permanent restraining orders from the District Court because he tried to secure a Judge to hear the plaintiff’s urgent application but could not find a Judge as all the Judges were busy. He therefore submitted that orders are valid. He further submitted that ex-parte National Court Orders obtained on 15 November, 2006, extending time for the defendant to file its cross-claim should be dismissed.

Reasons for decision

13 The case in my opinion turns on the central issue of whether the District Court proceedings, including the permanent ex-parte restraining orders obtained pursuant to the Complaint are an abuse of process.

14 It is not disputed that the Complaint is a duplication of the Statement of Claim in these proceedings. That being the case, the Complaint and the permanent ex-parte restraining orders obtained pursuant to that Complaints are clearly an abuse of process. The Court’s power to dismiss proceedings generally for abuse of process derives from Order 12 r 40 (c) of the National Court Rules. The Court also has the inherent jurisdiction to dismiss proceedings summarily where there is abuse of its process, as in this case. See, Karl Paul v. Aruai Kispe (2001) N2085 and PNG...