Paul Pilimbo Pora v Dean Hull and Aarlie Hull and Larry Hull and New Guinea Traders Llc and James Kruse and Timbi Kombra and David Borland and Deloitte Touche Tohmatsu and Michael Wilson and Koeya Peri and Warner Shand Lawyers and Paul Miamel and Bank South Pacific (2012) N4936

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 18 December 2012
• Citation: (2012) N4936
• Judgment Number: N4936
• Year: 2012
• Docket Number: WS NO 235 of 2012

Full Title: WS NO 235 of 2012; Paul Pilimbo Pora v Dean Hull and Aarlie Hull and Larry Hull and New Guinea Traders Llc and James Kruse and Timbi Kombra and David Borland and Deloitte Touche Tohmatsu and Michael Wilson and Koeya Peri and Warner Shand Lawyers and Paul Miamel and Bank South Pacific (2012) N4936

National Court: Cannings J

Judgment Delivered: 18 December 2012

N4936

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 235 OF 2012

PAUL PILIMBO PORA

Plaintiff

V

DEAN HULL

First Defendant

AARLIE HULL

Second Defendant

LARRY HULL

Third Defendant

NEW GUINEA TRADERS LLC

Fourth Defendant

JAMES KRUSE

Fifth Defendant

TIMBI KOMBRA

Sixth Defendant

DAVID BORLAND

Seventh Defendant

DELOITTE TOUCHE TOHMATSU

Eighth Defendant

MICHAEL WILSON

Ninth Defendant

KOEYA PERI

Tenth Defendant

WARNER SHAND LAWYERS

Eleventh Defendant

PAUL MIAMEL

Twelfth Defendant

BANK SOUTH PACIFIC

Thirteenth Defendant

Madang: Cannings J

2012: 7, 18 December

PRACTICE AND PROCEDURE – whether proceedings should be dismissed for failure to disclose reasonable cause of action, being frivolous and vexatious, abuse of court’s process – National Court Rules, Order 12, Rule 40

The plaintiff commenced proceedings against 13 defendants, claiming damages for 11 causes of action. Only two of the defendants filed a defence within the time permitted by the Rules. The plaintiff moved the court for summary judgment against those two defendants and for default judgment against the other 11. All defendants then moved the court for various orders, including leave to file their defences out of time and dismissal of the proceedings. The court dealt with five motions together.

Held:

(1) As some of the defendants’ motions raised the question of whether the proceedings should be entirely dismissed it was convenient to deal with that question first even though the motions that raised the question were filed later in time than the plaintiff’s motion for summary judgment and default judgment as a determination that the proceedings are dismissed, which can be made by the court of its own motion, would dispose of all issues raised by the five motions, other than costs.

(2) The statement of claim discloses no reasonable causes of action and deserves to be dismissed as it is plain and obvious even if the matters pleaded were proved it would not entitle the plaintiff to what he is asking for, and it is so prolix, complex and ambiguous it is incapable of facilitating orderly and rational pleadings that would enable the real issues to be identified and it raises so many causes of action (some of which are unknown to the law) against multiple defendants it leaves the defendants guessing as to what the plaintiff’s allegations are in relation to them and it fails generally to demonstrate that the plaintiff’s claim for damages has a clear legal basis.

(3) The proceedings are frivolous and deserve to be dismissed for that reason in that the plaintiff’s claim is so obviously untenable that it cannot possibly succeed and the plaintiff would be bound to fail if the matter went to trial.

(4) The proceedings are not vexatious as the grievances of the plaintiff are genuine and his motivation is not to engage in harassment of the defendants.

(5) The proceedings are to some extent an abuse of process in that they seek orders that would require the court to make a fresh determination of issues of fact and law that were determined in prior proceedings (for winding-up of a company then owned and controlled by the plaintiff).

(6) In the circumstances its appearing to the Court that in relation to the proceedings generally no reasonable cause of action is disclosed and the proceedings are frivolous and an abuse of the processes of the Court, the Court ordered under Order 12, Rule 40(1)(a) and 40(1)(b) and 40(1)(c) of the National Court Rules that the proceedings are dismissed.

(7) Costs did not follow the event as 11 of the defendants failed to file defences and were in default of the Rules and those defendants who sought dismissal of the proceedings (including the 12th and 13th defendants, who filed a defence) failed to adequately set out the jurisdictional basis on which dismissal was sought and explain with clarity to what extent the proceedings should be dismissed. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Anderson Agiru v Electoral Commission (2002) SC687

Eliakim Laki and 167 Others v Maurice Alaluku (2002) N2001

Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915

Kiee Toap v Department of Lands & Physical Planning (2004) N2766

Kiee Toap v The State and Electoral Commission (2004) N2731

Lero v Stagg (2006) N3050

PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85

Tigam Malewo v Keith Faulkner (2009) SC960

NOTICES OF MOTION

This is a ruling on five motions seeking amongst other things an order for dismissal of the proceedings.

Counsel

P P Pora, the plaintiff, in person

N Tenige, for the 1st, 2nd, 3rd and 10th defendants

E Wamp, for the 5th, 6th, 7th & 8th defendants

B T Nutley, for the 9th & 11th defendants

M G R Henao, for the 12th & 13th defendants

18 December, 2012

1. CANNINGS J: This is a ruling on five motions that have been filed in relation to proceedings commenced by the plaintiff, Paul Pilimbo Pora, regarding a company, Highlands Arabicas Ltd, which he used to own and control.

WS NO 235 OF 2012

2. The plaintiff claims that he suffered significant losses and damages due to breaches of contract and deceit by the first three defendants, members of the Hull family, who are United States citizens, regarding the affairs of Highlands Arabicas Ltd. He claims that he started the company in 2002 and was until 2005 conducting a successful coffee production and exporting operation through it. In 2005 he decided to expand the company’s operations in collaboration with the first three defendants and the fourth defendant, a US-registered company controlled by them. He claims that the first three defendants reneged on an agreement under which he was to obtain a significant interest in the fourth defendant in return for his transfer of a 49% interest in Highlands Arabicas Ltd to them.

3. The deceitful conduct of the first three defendants set in train a course of events, the plaintiff claims, leading to a winding-up petition against Highlands Arabicas Ltd and him being forced to transfer the remaining 51% shareholding in the company to the first three defendants. The result is that he has lost the company that he built up. He claims that the deceit and contractual breaches and other civil wrongs committed by the first three defendants have been facilitated and exacerbated by the actions of the other defendants: the receiver of the company, James Kruse, and other persons associated with the accounting firm Deloitte Touche Tohmatsu (the fifth, sixth, seventh and eighth defendants), the lawyers who acted for the Hull family, Koeya Peri, Michael Wilson and other persons associated with the law firm Warner Shand Lawyers (the 9th, 10th and 11th defendants) and Bank South Pacific and its recoveries manager in its asset management division Paul Miamel (the twelfth and thirteenth defendants).

FIVE MOTIONS

4. The plaintiff commenced proceedings by writ of summons on 19 March 2012. Only the 12th and 13th defendants filed a defence within the time permitted by the Rules, so on 25 October 2012 the plaintiff filed a notice of motion moving the court for summary judgment against those two defendants (on the ground that their defence carried no weight) and for default judgment against the other 11 (on the ground that they were in default of the Rules).

5. All defendants then filed notices of motion seeking various orders that would result in refusal of the orders sought in the plaintiff’s motion:

· the 5th, 6th, 7th and 8th defendants filed a notice of motion on 25 October 2012 seeking dismissal of the proceedings or in the alternative their removal from the proceedings or leave to file a defence out of time;

· the 1st, 2nd, 3rd and 10th defendants filed an amended notice of motion on 8 November 2012 seeking leave to file a defence out of time;

· the 9th, 10th and 11th defendants filed a notice of motion on 9 November 2012 seeking dismissal of the proceedings or in the alternative their removal from the proceedings or leave to file a defence out of time;

· the 12th and 13th defendants filed a notice of motion on 5 December 2012 seeking dismissal of the proceedings or in the alternative striking out of the plaintiff’s notice of motion and supporting affidavits for being incompetent, lacking form and being irrelevant, scandalous and oppressive.

6. The five motions have been heard together. As most of the defendants’ motions raise the question of whether the proceedings should be dismissed it is convenient to deal with that question first. Even...