Trinity Grammar School v Henry Bale Tomai and Andrea Tomai (2018) N7819

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 24 April 2018
• Court: National Court
• Citation: (2018) N7819
• Docket Number: WS No.11 of 2018
• Year: 2018
• Judgement Number: N7819

Full Title: WS No.11 of 2018; Trinity Grammar School v Henry Bale Tomai and Andrea Tomai (2018) N7819

National Court: David, J

Judgment Delivered: 24 April 2018

N7819

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.11 of 2018

BETWEEN:

TRINITY GRAMMAR SCHOOL

Plaintiff

AND:

HENRY BALE TOMAI and ANDREA TOMAI

Defendants

Waigani: David, J

2018 : 15 & 24 April

PRACTICE & PROCEDURE – application for dismissal of proceedings – jurisdiction – standing of plaintiff - relevant considerations – application refused.

Cases Cited:

Papua New Guinea Cases

The State v Peter Painke [1976] PNGLR 210

SCR No.2 of 1981 [1982] PNGLR 150

Uma More v UPNG [1985] PNGLR 401

United States of America v WR Carpenters (Properties) Ltd (1992) PNGLR 185

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488

Brinks Incorporated v Brinks Pty Ltd [1997] N1567

Hornibrook NGI Pty Ltd v Lihir Management Company Pty Ltd [1998] N1735

Benedict Pisi v Sam Akotai & Electoral Commission [1998] N1763

Anderson Agiru v Electoral Commission and The State (2002) SC687

William Duma v Yehiura Hriehwazi (2004) N2526

Kerry Lerro v Philip Stagg (2006) N3050

Philip Takori v Simon Yagari (2008) SC905

Telikom PNG Limited v ICCC & Digicel (PNG) Limited (2008) SC906

Kingston v Kingston (2017) N7054

Overseas Cases

Walker v Appleton [1838] NSW Sup C 83

John Lavington Bonython v Commonwealth of Australia (1951) AC 201

Hunter v Chief Constable of the West Midlands Police and Others (1982) AC 529

House of Spring Gardens Ltd v Waite (1991) 1 QB 241

Counsel:

Ethel Goina, for the Plaintiff

Jessy Biar, for the Defendants

RULING

24th April, 2018

1. DAVID, J: INTRODUCTION: This is a ruling on a contested application that was moved by the defendants through their notice of motion filed on 12 April 2019 seeking an order to have these proceedings struck out or dismissed in their entirety for being an abuse of the process of the Court under Order 12 Rule 40(1)(c) of the National Court Rules or alternatively for lack of standing under Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.

EVIDENCE

2. The defendants’ application is supported by the affidavits of:

1. Jessy Biar sworn and filed on 18 March 2019; and

2. Henry Tomai sworn on 13 July 2018 and filed on 8 August 2018.

3. The plaintiff relies on the affidavits of:

1. Carolyn Ila sworn on 22 January 2018 and filed on 23 January 2018;

2. Sabetha Sawati sworn on 19 June 2018 and filed on 20 June 2018; and

3. Sabetha Sawati sworn on 11 April 2019 and filed on 12 April 2019.

BRIEF BACKGROUND FACTS

4. The defendants, Henry Bale Tomai and Andrea Tomai enrolled their son, Masilo Bale Tomai (Masilo) as a boarder at the plaintiff, Trinity Grammar School, Summer Hill Campus in Sydney, Australia agreeing to pay all school fees and associated charges in connection with his studies (school fees). The total accumulated amount of school fees due and owing by the defendants to the plaintiff for Masilo doing years 10, 11 and 12 was $200,272.66. The defendants have settled $61,309.80 and the amount still due and owing to the plaintiff is $138,962.86.

5. On 17 January 2018, the plaintiff filed a writ of summons endorsed with a statement of claim claiming $138,962.86 or alternatively damages for breach of contract plus interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs of and incidental to the proceedings.

6. The writ of summons was served on the defendants on 22 January 2018.

7. On 12 February 2018, the defendants, through Namani & Associates, filed their notice of intention to defend.

8. The defendants have not filed any defence to date nor have they filed an application to file a defence out of time.

LEGAL ISSUES

9. The main legal issues that I have to consider and decide are:

1. Whether the notice of motion is incompetent?

2. If the answer to the first issue is in the negative, does the plaintiff have standing to bring this action in Papua New Guinea?

3. If the answer to the second issue is in the affirmative, are these proceedings an abuse of the process of the Court?

ANALYSIS OF LEGAL ISSUES AND FACTS

Is the notice of motion incompetent?

10. Ms Goina for the plaintiff contends that the defendants’ motion is incompetent as there is no foundation for moving the motion without the defendants having filed a defence in accordance with Order 8 Rule 14 of the National Court Rules pleading specifically the issue of jurisdiction which they allege makes the plaintiff’s claim not maintainable. By failing to file their defence and raising the defence, they are prevented from adducing evidence to support their objection.

11. Order 4 Rule 49(8) of the National Court Rules prescribes what the form of a motion should be. It states:

“All motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.”

12. As to the first relief sought in the motion, the defendants rely on Order 12 Rule 40(1)(c) of the National Court Rules seeking an order to have these proceedings struck out or dismissed in their entirety for being an abuse of the process of the Court as the Court lacks jurisdiction. That is consistent with Order 4 Rule 49(8).

13. As to the second relief sought, the defendants rely on Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution. Order 12 Rule 1 is a general provision of the National Court Rules and does not contain a concise reference to the Court’s jurisdiction to grant the order specifically sought. No objection was taken by counsel for the defendants to rely on the rule. It is settled law that Section 155(4) is not the source of primary jurisdictional power and can only be relied on to protect primary rights of parties where there is a vacuum in law that had to be filled or in the absence of other relevant law. In addition, Section 155(4) confers jurisdiction on the Court to issue facilitative orders in the exercise of its inherent power in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under an enabling legislation: SCR No.2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. As no objection was taken by the plaintiff as to why reliance should not be had on these provisions, reference to them is sufficient so I would allow the defendants to rely on them. Apart from Order 8 Rule 14, Ms Goina did not make reference to any other rule in the National Court Rules that raises the issue of jurisdiction. In any event, this is a matter that can also be considered in the context of abuse of process.

14. I reject the plaintiff’s submissions. The motion is competent.

Does the plaintiff have standing to sue in Papua New Guinea?

15. The defendants contend that the plaintiff has no standing to institute this action in Papua New Guinea as it is not registered and certified under the Investment Promotion Act nor under the Companies Act or any other legislation in the country to conduct business in Papua New Guinea.

16. I was referred to the National Court decision of Brinks Incorporated v Brinks Pty Ltd [1997] N1567. That was a case where the first plaintiff, Brinks Incorporated, a company registered and based in Connecticut, USA which owned a group of companies throughout the world including the second plaintiff, Brinks Air Courier Australia Pty Ltd which was based in Sydney, Australia commenced a passing-off action involving the use of the name “Brink”, “Brinks” or “Brink’s” against the defendants. All companies within the group used the name “Brinks” or “Brink’s” as part of their corporate name or business name. The plaintiffs carried on the business of transporting valuables such as currency and gold in PNG using a resident sub-contractor, PNG Armoured. The plaintiffs did not obtain incorporation, registration or certification as a foreign enterprise under existing laws of PNG. The second defendant, Barry Tan who at one time was employed by PNG Armoured as its Managing Director and did some work for the second plaintiff, with the financial assistance of the third defendant, Herman Lucas incorporated the first defendant, Brinks Pty Ltd and registered two business names known as “Brink’s Armoured” and “Brinks Security Services” and went into various businesses one of which was similar to that provided by the plaintiffs through PNG Armoured. In the passing-off action, the plaintiffs sought a permanent injunction, an equitable remedy, to stop the defendants from carrying on business using the name “Brink”, “Brinks” or “Brink’s”. The National Court dismissed the action as the plaintiffs were conducting business in PNG illegally without obtaining registration as a foreign enterprise under the Companies Act and certification under the ...