Luke Tai v Mark Baker as Managing Director of Australia New Zealand Bank trading as ANZ Bank and Others

• Jurisdiction: Papua New Guinea
• Judge: Shepherd J
• Judgment Date: 18 December 2023
• Neutral Citation: N10640
• Citation: N10640, 2023-12-18
• Counsel: Mr Luke Tai, plaintiff in Person,Ms Ethel Goina, for the Defendants
• Docket Number: WS (HR) NO. 9 OF 2022 (IECMS)
• Hearing Date: 17 November 2023,18 December 2023
• Court: National Court

N10640

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 9 OF 2022 (IECMS)

Between:

Luke Tai

Plaintiff

v.

Mark Baker as Managing Director of Australia New Zealand Bank trading as ANZ Bank

First Defendant

and

Australia New Zealand Bank trading as Anz Bank

Second Defendant

Waigani: Shepherd J

2023: 17^th November & 18^th December

PRACTICE AND PROCEDURE — application for summary dismissal — National Court Rules, Order 12 Rule 40(1) — whether proceeding failed to disclose reasonable cause of action — doctrine of res judicata — whether proceeding statute-barred — Frauds and Limitations Act, s.16 — whether proceeding is frivolous or vexatious — whether proceeding is abuse of process — multiplicity of proceedings — application for summary dismissal granted.

PRACTICE AND PROCEDURE — application for plaintiff to be declared vexatious litigant — principles applicable — conditions to be applied where declaration is made that plaintiff is vexatious litigant.

Cases Cited:

Agiru v Electoral Commission (2002) SC687

Geru Holdings Ltd v Kruse (2003) SC2492

Hui v Bank of South Pacific (2019) N8838

Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007

Nema v Rural Development Bank Ltd (2012) N5317

PNG Forest Products Ltd v Minister for Forests [1992] PNGLR 85

Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation (2006) N3062

Takori v Yagari (2008) SC905

Wabia v BP Exploration Co. Ltd [1998] PNGLR 8

Counsel

Mr Luke Tai, plaintiff in Person

Ms Ethel Goina, for the Defendants

Luke Tai: Plaintiff in person

Dentons Lawyers: Lawyers for the Defendants

18^th December 2023

DECISION

1. Shepherd J: The defendants seek orders for the dismissal of this proceeding and for the plaintiff to be declared by the Court to be a vexatious litigant.

BACKGROUND

2. The claims made by the plaintiff in this suit arise from events that occurred more than 30 years ago. The events in question have already been the subject of protracted court proceedings taken by the plaintiff against the second defendant in both the National Court and on appeal to the Supreme Court. Both of those prior proceedings have long since been heard and determined in favour of the second defendant. The plaintiff now seeks to relitigate matters in the Human Rights Track of the National Court based on the same events.

National Court proceeding – OS No. 519 of 1996

3. On 3 December 1996 the plaintiff filed an originating summons in the National Court styled OS No. 519 of 1996: Luke Tai v Rod M Leader, Manager, Port Moresby Branch Australia & New Zealand Banking Group (PNG) Limited and Australia & New Zealand Banking Group (PNG) Limited.

4. The plaintiff's originating summons sought judicial declarations and related orders against the second defendant (Bank) for redeeming a term deposit for K40,000 (IBD) which the plaintiff had invested with the Bank on 3 September 1990. In November 1992 the Bank applied the proceeds of the plaintiff's IBD in partial satisfaction of three outstanding loan accounts of the plaintiff. loan accounts which at that time had totalled K57,562. The plaintiff's IBD had been given as collateral security for his loan accounts.

5. On 7 July 1998 the National Court ordered that the plaintiff's suit in OS No. 519 of 1996 was to proceed by way of pleadings.

6. The plaintiff's statement of claim was filed on 29 July 1998. The plaintiff pleaded breach of contract and commission of the tort of negligence by the Bank. The plaintiff alleged that the Bank had failed to take reasonable care in its dealings with the plaintiff's IBD which had resulted in financial loss to the plaintiff.

7. The National Court's decision in OS No. 519 of 1996 was delivered by Injia DCJ (as he then was) on 23 February 2005. The Court found on the evidence that the plaintiff had not disputed that he owed the Bank a total sum of K57,562 as at September 1992. The Court further found that the Bank had the contractual right to foreclose on the plaintiff's IBD under the terms of the instrument of charge which the plaintiff had signed as security for loans advanced by the Bank to the plaintiff from time to time. The Court ruled that the decision of the Bank to foreclose on the IBD was a commercial decision which the Court could not interfere with and that foreclosure had occurred because of the plaintiff's inability to repay his indebtedness in good time. The plaintiff's claim was dismissed, with costs awarded to the Bank.

Supreme Court appeal — SCA No. 25 of 2005

8. The plaintiff appealed the National Court's decision by filing SCA No. 25 of 2005 in the Supreme Court on 31 March 2005. The plaintiff's notice of appeal pleaded, among others, that the trial judge had erred when finding that the plaintiff had difficulties in repaying his loan commitments when the plaintiff was not experiencing financial difficulties at all; that the Bank's decision to redeem the whole of the plaintiff's IBD was unfair and unreasonable; and that the Bank had acted negligently and in bad faith.

9. The judges comprising the Supreme Court (Gavara-Nanu, Gabi and Yagi JJ) delivered their unanimous decision on 27 November 2009 and found that there had been no error of law committed by the trial judge. The plaintiff's appeal was dismissed with costs. This is what the Supreme Court had to say at paras. 43 to 46 of its decision:

“43. The terms of the charge [stipulated] clearly that the appellant had irrevocably authorised the bank to foreclose on all or part of his Term Deposits whenever there is a debt, whether immediate or contingent, owed to the bank.

44. In this case, when the appellant defaulted, the bank issued to him a written notice of demand by way of a letter dated 7^th October 1992. The notice was forwarded by post to the appellant's mailing address “P.O. Box 9080, Hohola, National Capital District”. At that time the appellant failed to pay the monthly instalment of K2,799.00 and was indebted to the bank in the sum of K57,562.00.

45. On the evidence there is a substantial debt owing to the bank at the time the bank exercised its right to foreclose on the Term Deposit.

46. For all the above reasons, we find that the trial judge committed no error as alleged in the appeal and accordingly dismiss the appeal with costs.”

10. Aggrieved by the Supreme Court's decision, on 2 January 2010 the plaintiff filed a ‘slip rule’ application in SCA No. 25 of 2005 under s.155(4) of the Constitution. The plaintiff claimed that the Supreme Court had erred in certain respects of its decision handed down on 27 November 2009.

11. For reasons which have not been explained, the plaintiff's slip rule application did not come on for hearing by his Honour Gavara-Nanu J until 2 November 2017, almost 8 years after the Supreme Court's decision of 27 November 2009. His Honour's decision was delivered on 11 April 2018 and is reported as SC1681. His Honour observed that there had already been 27 years of litigation up to that time and that public interest requires that litigation be brought to finality to prevent not only abuse of the courts' processes but also to prevent further prejudice and damage to the interests of those who are directly affected by prolonged litigation.

12. His Honour stated in his ruling that a ‘slip rule application’ under s.155(4) of the Constitution should only be used to correct a glaring error of law or fact. The Supreme Court when exercising its powers of review of one of its own decisions must be satisfied that the error is on a critical issue affecting a primary right of the applicant which must be protected and enforced before a case can be reopened. The error must be little short of extraordinary. His Honour went on to find that the plaintiff had not shown any clear and manifest error of law or fact in the Supreme Court's decision of 27 November 2009 but was instead asking the Court to allow a rehashing of arguments which had already been canvassed by the plaintiff at the substantive hearing of the appeal in SCA No. 25 of 2009. The plaintiff's ‘slip rule’ application was dismissed, again with costs awarded to the Bank.

WS (JR) No. 9 of 2022

13. Four years after the plaintiff's ‘slip rule’ application was dismissed by the Supreme Court on 11 April 2018, the plaintiff filed this present National Court proceeding WS (H/R) No. 9 of 2022 on 29 June 2022.

14. In this latest suit the plaintiff's statement of claim has repeated many of the alleged matters pleaded in his earlier National Court and Supreme Court proceedings in support of his claims of breach of contract and commission of negligence by the Bank. The only significant difference in the latest proceedings filed some 30 years after the events complained of by the plaintiff is that the plaintiff has now belatedly alleged fraud on the part of the Bank and has claimed that the Bank has wrongfully withheld from him a State Lease for a property he says he owns at Gerehu described as Allotment 41 Section 302 Hohola, NCD. In this latest proceeding the plaintiff seeks orders for the Bank to return to him his State Lease for his property at Gerehu, general damages for pain and suffering and interest at the rate of 8.75% (presumably per annum) on an amount of K60,060.32 computed as from October 1992 to date of judgment.

15. One unusual aspect of the plaintiff's latest suit is that the present managing director of the Bank, Mr Mark Baker, has been cited as the first defendant. The plaintiff pleads in paragraph 2 of his statement of claim that Mr Baker is sued “for his actions and inactions and that of his predecessors”. Yet there is no allegation in the plaintiff's statement of claim that Mr Baker was the Bank's managing director at the material time when the events complained of took place more than 30 years ago in 1992. Instead, in the remainder of the statement of claim, Mr Baker is lumped in with references to his predecessors and to the Bank generally as “the Defendants” as if Mr Baker...