Rimbink Pato v Nelson Leia

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 12 January 2018
• Citation: (2018) N7112
• Court: National Court
• Year: 2018
• Judgement Number: N7112

Full : OS 874 of 2016; Hon Rimbink Pato MP Chairman of Wapenamanda District Development Authority and Member for Wapenamanda Open Electorate and Wapenamanda District Development Authority v Nelson Leia Director Village Courts Enga Province and Enga Provincial Government and the Independent State of Papua New Guinea (2018) N7112

National Court: Hartshorn J

Judgment Delivered: 12 January 2018

N7112

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 874 of 2016

BETWEEN:

HON. RIMBINK PATO MP

Chairman of Wapenamanda District

Development Authority and Member

for Wapenamanda Open Electorate

First Plaintiff

AND:

WAPENAMANDA DISTRICT

DEVELOPMENT AUTHORITY

Second Plaintiff

AND:

NELSON LEIA

Director Village Courts Enga Province

First Defendant

AND:

ENGA PROVINCIAL

GOVERNMENT

Second Defendant

AND:

INDEPENDENT STATE OF

PAPUA NEW GUINEA

Third Defendant

Waigani: Hartshorn J.

2018: 12th January

Application to dismiss or alternatively to transfer the proceeding

Cases Cited:

Kerry Lerro v. Stagg & Ors (2006) N3050

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144

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

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Simon Ekanda v. Rendle Rimua (2015) N6174

Siu v. Wasime Land Group Incorporated (2011) SC1107

Takori v.Yagari & Ors (2008) SC905

Counsel:

Mr. D. Mel, for the Plaintiffs

Mr. L. Kandi, for the First and Second Defendants

12th January, 2018

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding or alternatively to transfer this proceeding to another National Court.

Background

2. This is a dispute concerning the appointment of Village Magistrates in Enga Province. The two plaintiffs, the Wapenamanda District Development Authority, its Chairman and the Member of Parliament for the Wapenamanda Open Electorate seek declaratory relief to the effect that the first and second defendants, the Enga Provincial Government and the Village Court Director for Enga Province, do not have the power to appoint or recommend for appointment Village Court officials including Village Magistrates, and that the Minister for Justice and Attorney General has validly appointed various Village Court officials including Village Magistrates for the Wapenamanda Open Electorate and revoked previous appointments. Consequential permanent injunctive relief is also sought.

This application

3. The defendants submit that the proceeding should be dismissed as:

a) It is an abuse of process and does not comply with s. 37(3) District Development Authority Act 2014. Reliance is placed upon Order 12 Rule 40(1)(c) National Court Rules, s. 155(4) Constitution and this court’s inherent power;

b) The relief sought by the plaintiffs’ is misconceived;

c) Section 8 District Development Authority Act 2014 has not been complied with.

4. In the alternative the first and second defendants submit that the proceeding should be transferred to Wabag National Court as:

a) There is a resident National Court Judge based in Wabag;

b) All parties except the State are residents of Enga Province. Reliance is placed upon Order 10 Rule 2 National Court Rules and Practice Direction No. 1 of 1992.

5. The plaintiffs submit that the proceeding should not be dismissed as amongst others:

a) Section 37(3) District Development Authority Act 2014 has not been breached;

b) The proceeding is not an abuse of process;

c) The Enga Provincial Government does not have the power to appoint Village Magistrates and has not enacted relevant provincial legislation;

d) It is not in the interests of justice for this proceeding to be dismissed.

6. In regard to the alternative relief sought concerning the transfer of the proceeding, the plaintiffs submit that no evidence has been filed by the first and second defendants showing urgent and extra ordinary reasons warranting a transfer. Further, no evidence has been filed in support of this relief and so the application is defective as Order 4 Rule 44(1) National Court Rules has not been complied with.

Consideration

7. I will consider the application initially pursuant to Order 12 Rule 40(1)(c) National Court Rules. There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

8. In this instance, the first and second defendants submit that the proceeding is an abuse of process as the dispute the subject of this proceeding is covered by s. 37(1) District Development Authority Act 2014. Consequently, it is submitted that this proceeding is prohibited by s. 37(3) as there has not been a failed mediation.

9. Section 37 District Development Authority Act 2014 is as follows:

“37. Dispute resolution.

(1) If there is a dispute between —

(a) the Chief Executive Officer and a Provincial Administrator; or

(b) the Chief Executive Officer and a Board member; or

(c) a Board member and the Provincial Government; or

(d) an Authority and any other government entity or State agency,

a party may bring the matter to the attention of the Minister and make a written submission to the Minister.

(2) The Minister shall consider the submission (if any) made by the parties to the dispute and may meet with one or more of those parties, together or separately, to mediate a solution to the dispute.

(3) Legal proceedings are not to be taken in relation to a dispute, unless mediation has been held but failed to resolve the dispute.”

10. The plaintiffs submit that a discretion is given to a party in s. 37(1) and to the Minister in s. 37(2). Whether s. 37(3) applies is dependent upon whether a party has brought a dispute to the attention of the Minister, and if it has, whether the Minister decides to mediate a solution to the dispute, and if he does, whether a mediation has been held, and if it has, whether the mediation has failed. Consequently it is submitted, it is not correct to assert as the first and second defendants do, that if the dispute in this proceeding is covered by section 37(1), that s. 37(3) prohibits legal proceedings unless there...