Bali Lupai v Chief Executive Officer to Digicel (PNG) Ltd and Digicel (PNG) Ltd (2019) N7997

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 13 September 2019
• Citation: (2019) N7997
• Docket Number: WS No. 724 of 2018 (COMM)
• Year: 2019

Full Title: WS No. 724 of 2018 (COMM); Bali Lupai v Chief Executive Officer to Digicel (PNG) Ltd and Digicel (PNG) Ltd (2019) N7997

National Court: Anis J

Judgment Delivered: 13 September 2019

N7997

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 724 of 2018 (COMM)

BETWEEN:

BALI LUPAI

Plaintiff

AND:

CHIEF EXECUTIVE OFFICER TO DIGICEL (PNG) LIMITED

First Defendant

AND

DIGICEL (PNG) LIMITED

Second Defendant

Waigani: Anis J

2019: 4 & 13 September

MOTION TO DISMISS – O4 r5(1) – National Court Rules - proceeding filed by a non-practicing lawyer for the plaintiff – whether writ defective or lacks form – O4 r16 and forms 4 & 5 – National Court Rules - O10 r9A(15)(2)(d)(e) and O8 Rr27 – National Court Rules - summary determination – whether pleadings or want of form of the writ of summons and statement of claim amounts to abuse of court process

Cases Cited:

Gordon Gala Junior v. The State (2017) SC1629

PNG Aviation Services Pty Ltd v. Geob Karri (2009) SC1002

Counsel:

Nil, for the Plaintiff

Mr J P Munull Jr, for the Defendants

RULING

13th September, 2019

1. ANIS J: This was an application by the defendants to dismiss the proceeding. The application was heard on 4 September 2019. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The plaintiff filed his writ of summons and statement of claim on 21 June 2018. The claim is for allege outstanding rental payments for the use of one of the second defendant’s towers, namely, Tower No. 435. The plaintiff claims that the tower was erected in 2007 on his people’s land, and he claims to be the principal landowner. He describes the land as Kupipira Land and says that it is situated at a location call Tumbalere, in Kagua in the Southern Highlands Province.

4. The plaintiff had been represented by this person, Paul Masta. I note that Mr Masta was the person that drafted and filed the writ of summons and statement of claim on behalf of the plaintiff. He made one appearance on behalf of the plaintiff on 5 September 2018. At that time, the Court, amongst others, directed the plaintiff to engage a practicing lawyer to act for him or otherwise to appear in person in relation to the matter.

APPLICATION

5. The defendants’ application was filed on 21 May 2019. It seeks the following orders:

1. The proceedings be dismissed pursuant to O4 r5(1), O8 r27, O10 r9A (15)(2)(d)(e), O12 r40 of the National Court Rules, s60 of the Lawyers Act 1986 and this Honorable Court’s inherent jurisdiction to control proceedings before it.

2. The plaintiff pay for the Defendant’s costs on a solicitor-client basis.

3. Such further or other orders as this Honorable Court deems appropriate.

6. The defendants rely on the following evidence in support of their application:

(i) Unsealed affidavit of service of Hoko Steven sworn on 30 August 2019;

(ii) Affidavit of John Munnull Jr filed on 3 December 2018;

(iii) Affidavit of John Munnul Jr filed on 10 December 2018; and

(iv) Affidavit of John Munnul Jr filed on 21 May 2019.

SERVICE

7. As a preliminary matter, I inquired whether the plaintiff had been served and therefore was aware of the application returning at 9:30am on 4 September 2019. In response, counsel for the defendants assisted with reference to the unsealed affidavit of service of Mr Steven. I note that I had granted leave to the defendants to rely on the said affidavit. In a brief ruling, I noted that the Court had on 19 July 2019 ordered substituted service of the application documents upon the plaintiff.

8. I was then satisfied that the application documents had been duly served on the plaintiff, and also that the plaintiff had been notified of the hearing date which was at 9:30am on 4 September 2019. I allowed the defendants to move their application ex-parte.

ISSUES

9. There are various issues to address. In my view, I will firstly address the issue of representation. Subject to my finding, I may proceed to address the other issues that have been raised by counsel in his submissions.

COURT ORDER OF 5 SEPTEMBER 2018

10. I note that the plaintiff was ordered on 5 September 2018 to engage a practicing lawyer to act for him in the matter. In the alternative, the Court also ordered the plaintiff to appear in person to prosecute his claim.

11. Since then, I note evidence which shows that the plaintiff has not engaged a lawyer to act for him. This is also confirmed by perusal of the court file. The plaintiff failed to appear in Court on 12 December 2018. On 6 February 2019, the plaintiff attempted to use Mr Masta, to appear for him in Court, that is, despite the Court’s order of 5 September 2018. The Court refused leave to allow Mr Masta to appear on that day for the plaintiff. On 5 June 2019, the plaintiff again failed to appear in Court. By that time, the defendants were having difficulties in trying to communicate with or serve the plaintiff with court documents. The plaintiff does not have a permanent address of his own. On 19 July 2019, the defendants applied for and substituted service was ordered by the Court in their favour. The application documents were then served as evident in Mr. Steven’s affidavit.

12. When I consider all that, I note that the plaintiff has been pursuing the matter in defiant of a Court order or direction. He was specifically directed on 5 September 2018 to seek legal representation or appear in person. Instead of that, he took steps as I have summarised above, and I note that he had attempted to continue to engage Mr Masta to act for him. In my view, the plaintiff’s action directly breaches O10 r9A(15)(2)(c). It reads, and I quote in part: the Court may summarily dispose of a matter......for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes. I note that the plaintiff has also failed to appear to prosecute his claim on various occasions in the past as well as in the present application. Those are relevant grounds, in my view, for dismissal of proceeding under O10 r9A(15)(2) of the National Court Rules.

PAUL MASTA

13. Mr Masta is not a lawyer. This fact is not disputed. Yet, Mr Masta had purportedly acted for the plaintiff in the past. Let me explain. He files the plaintiff’s claim and puts himself down as the plaintiff’s contact person. He states his address in the plaintiff’s writ of summons and statement of claim. He also states his full name and signs off with a commissioner for oaths stamp at the final page of the writ of summons and statement of claim, as if he is a practicing lawyer acting for the plaintiff.

14. The defendants refer to O8 r27 of the National Court Rules, and claim, amongst others, that the proceeding is an abuse of the court process because the writ of summons and statement of claim was...