Daniel Tulapi v Gabriel Yer, Secretary, Department of Finance and Caroline Jaruga, Principal Legal Officer, Department of Finance and Neville Devete, Solicitor-General and The Independent State of Papua New Guinea (2010) N4095

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 15 July 2010
• Citation: (2010) N4095
• Docket Number: OS NO 115 OF 2010
• Year: 2010

Full Title: OS NO 115 OF 2010; Daniel Tulapi v Gabriel Yer, Secretary, Department of Finance and Caroline Jaruga, Principal Legal Officer, Department of Finance and Neville Devete, Solicitor-General and The Independent State of Papua New Guinea (2010) N4095

National Court: Cannings J

Judgment Delivered: 15 July 2010

PRACTICE AND PROCEDURE—motions—whether a defendant can obtain substantive relief on a motion—Rule 9(1) Motions (Amendment) Rules 2005.

The plaintiff commenced proceedings by originating summons seeking orders for enforcement of orders of the District Court. The defendants responded with a motion seeking declarations that they bear no liability to the plaintiff and that the plaintiff is liable to them. In the alternative they sought leave to file a cross-claim.

Held:

(1) The notice of motion procedure should not be used as a vehicle to obtain substantive relief (John Momis v AG [2000] PNGLR 109; Rule 9 of the Motions (Amendment) Rules 2005).

(2) The defendants’ motion sought substantive relief and was an abuse of process and for that reason the primary relief sought by the defendants was refused.

(3) Other relief sought by the defendants was also refused.

Cases cited

The following cases are cited in the judgment:

John Momis v Attorney–General [2000] PNGLR 109; Martin Kenehe v Michael Pearson (2009) N3763; NCDC v Yama Security Services Pty Ltd [2003] PNGLR 1; Gabriel Yer v Peter Yama (2009) SC990;

Gabriel Yer v Peter Yama (2009) SC996

15 July, 2010

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