Yakam Malayeki v Judah Utin (2019) N8040

• Jurisdiction: Papua New Guinea
• Judge: Numapo, AJ
• Judgment Date: 04 October 2019
• Citation: (2019) N8040
• Docket Number: Yakam Malayeki v Judah Utin (2019) N8040OS No. 116 of 2019 & OS 479 of 2019
• Court: National Court
• Year: 2019
• Judgement Number: N8040

Full Title: Yakam Malayeki v Judah Utin (2019) N8040OS No. 116 of 2019 & OS 479 of 2019; Yakam Malayeki v Judah Utin (2019) N8040

National Court: Numapo, AJ

Judgment Delivered: 4 October 2019

N8040

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 116 of 2019 & OS 479 of 2019

BETWEEN:

YAKAM MALAYEKI, Leader of Waffes Clan of Babuaf Village, Wampar LLG, Morobe Province

Plaintiff

AND:

JUDAH UTIN

First Defendant

AND:

YAWASING ANUNGA

Second Defendant

AND:

THOMAS NEN

Third Defendant

Lae: Numapo, AJ

2019: 04th September & 04th October

CIVIL PRACTICE AND PROCEDURE – Application to set aside ex parte orders - Order 12 Rule 8 (3) (a) – Representative class action –- Plaintiff’s Lack of standing to institute proceedings – Order 5 Rule (13) - No reasonable cause of action disclosed – Trivial and vexatious proceedings - Abuse of Court’s Process – Order 12 Rule 40 (1) – Application refused.

Held:

(i) Plaintiff has not provided a reasonable explanation of his absence to the satisfaction of the Court.

(ii) Plaintiff has no standing to represent the Waffes Clan in these proceedings pursuant to Order 5 Rule 13 (1).

(iii) There is no reasonable cause of action disclosed in the pleadings and the proceedings are trivial and frivolous and an abuse of the process of the Court pursuant to Order 12 Rule 40 (1) (a) (b) and (c).

(iv) Plaintiff has abused the Court’s process by commencing multiplicity of proceedings on a matter with substantially the same issue seeking the same relief.

(v) Application to set aside the ex parte order refused.

Cases Cited:

Papua New Guinea Cases

Andakelka Ltd v Petronas Ltd [2010] PGNC 4; N3976.

Anderson Agiru v Electoral Commission (2002) SC 682

Dogoliv v Laho [2005] PGNC 47; N2885.

Eliakim Laki v, Maurice Alaluku, Secretary for Lands [2000] N4158

Kiee Toap v The State & Ors (2004) N2731.

Louis Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158.

Markscal Ltd v Mineral Resources Development Ltd (1999) PGNC 117; N1807.

National Superannuation Fund v Yawenaik Holdings Limited & Ors (2018) SC1709.

Paula Yayabu Lawyers & Ors v Melanesian Trustee Services Limited & Ors [2016] N7967 (18th July 2019).

PNG Forest Products Ltd v The State [1992] PNGLR 85.

Simon Mali v. Independent State of Papua New Guinea (2002) PNGLR 15.

Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.

Tigam Malewo v. Keith Faulkner (2009) SC 960.

Wawoi Guavi Timber Company Limited & Ors v John Molu (2016) SC 1514.

Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674

Overseas Cases

Armour v Bate [1891] 2 QB 223

Counsel:

Mr A Chillion, for the Plaintiff

Mr F So, for the Defendants

DECISION

4th October, 2019

1. NUMAPO AJ: This is an application by the Plaintiff/Applicant made pursuant to Order 12 Rule 8 (3) (a) of the National Court Rules (NCR) seeking to set aside an ex parte order of the 05th July 2019 dismissing the proceedings and to reinstate the proceedings forthwith for substantive determination.

A. BACKGROUND

2. On 5th July 2019 the Court, on an ex parte application by the Defendants, the court dismissed the proceedings referred to as OS 116 of 2019 on three grounds; firstly, that the Plaintiff has no standing to institute the proceedings pursuant to Order 5 Rule 13 (1); secondly, that the proceedings was frivolous and vexatious and an abuse of Court’s process pursuant to Order 12 Rule 40 (1) (b) (c) and thirdly, for want of prosecution pursuant to Order 10 Rule 5. The collective orders were made concurrently with individual effect of its own.

3. On the 5th July 2019 neither the Plaintiff nor his lawyer was present when the proceedings was dismissed on an application by the Defendants even though the Plaintiff and his Counsel were advised of the hearing date.

4. On the 24th August 2019, the Defendants moved to dismiss yet another similar proceedings styled OS 479 of 2019 when it was discovered that there was a motion on foot by the Plaintiff to set aside the orders of 5th July 2019. Plaintiff apply to have the two matters (OS 116/2019 and OS 479/2019) consolidated and dealt with together as the relief sought is substantially the same despite different people being named as defendants in the two proceedings. I granted leave for the two matters to be consolidated and dealt with together as the issues and the relief sought are substantially the same.

B. ISSUE

5. The issue is: ‘Whether the ex parte order made on the 5th July 2019 dismissing the proceedings can be set aside and the matter be reinstated?’

C. THE LAW

6. Order 12 Rule 8 (3) of the National Court Rules states that:

The Court may, on terms set aside or vary an order –

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of the motion for the order; or

(b) where notice of motion for setting aside or variation is filed before entry of order.

D. PRESENT CASE

7. The Plaintiff moved to set aside an ex parte order pursuant to Order 12 Rule 8 (3) made on the 5th July 2019 dismissing the proceedings and to have the matter reinstated.

8. In support of the application, Mr Chillion for the Plaintiff referred the Court to the Supreme Court decision in Wawoi Guavi Timber Company Limited & Ors v John Molu (2016) SC 1514 where the court held that the National Court has the power under Order 12 Rule 8 (3) of the NCR to set aside an ex parte order dismissing the proceedings for reasons that the rule was intended to set aside order made in absence of another party. The Court said that, it would be futile to appeal as the grounds of appeal would be dependent on what is submitted in the lower court and if a party does not appear, there would be no grounds he would rely on because he was absent at the hearing. The Supreme Court went further to say that the power to set aside an ex parte order is conditional on the following:

(a) There is a reasonable explanation for the party’s absence at the hearing;

(b) There is no delay in applying to set aside the order; and

(c) There is merits in the substantive matter.

9. The decision was later reaffirmed in the Supreme Court’s decision in National Superannuation Fund v Yawenaik Holdings Limited & Ors (2018) SC1709.

10. I have read the decisions of the two cases and it appears to me that both relate to dismissal of proceedings for Want of Prosecution pursuant to Order 10 Rule 5 and not for frivolous and vexatious or abuse of the Court’s process etc.

11. In the present case the proceedings was dismissed on three separate grounds firstly, for being frivolous and vexatious and abuse of the Court’s process pursuant to Order 12 Rule 40 (b) (c), secondly for being an abuse of process as the Plaintiff does not have standing to institute the proceedings pursuant to Order 5 Rule 13 (1) (a), and thirdly, for want of prosecution pursuant to Order 10 Rule 5.

12. I agree with Mr So for the Defendants that the Orders of the 5th July 2019 is a collective order dismissing the entire proceedings on several grounds of which want of prosecution is one. The other grounds such as dismissal of the proceedings for being frivolous and vexatious, an abuse of the Court’s process and lack of standing are separate grounds which must be argued on their own merits. Mr Chillion argued that application to set aside an ex parte equally applies to all grounds of dismissal including want of prosecution and undertook to provide the relevant case laws to assist the Court but he has not done so.

13. The applicable principles developed by the Supreme Court in Wawoi Guavi (supra) also gives the absent party the opportunity to explain why the order dismissing the proceedings should be set aside and the matter be reinstated for hearing. As to whether the Court should set aside the ex parte order or not is within the discretion of the Court after having regard to all the circumstances.

(a) There is a reasonable explanation for the party’s absence at the hearing.

14. The Plaintiff claimed that neither he nor his lawyer was advised of the hearing date after the matter was adjourned from 10th June 2019 which was a Public Holiday (Queen’s birthday) and re-listed on the 5th July 2019.

15. I find the Plaintiff’s argument rather unconvincing for the reason that there is on record a letter dated 30th May 2019 from the Assistant Registrar of the Lae National Court addressed to both Counsels and their respective law firms advising them that the matter has been re-listed for the 5th July 2019 at 9:30am due to the Public Holiday on the 10th June 2019. The advice was sent by both email and post to all parties by their known addresses and contact details.

16. Counsel for the Defendants Mr So appeared on the 5th July 2019 and is on record to have informed the Court that he was notified by the Lae National Court Registry via a letter dated 30th May 2019 sent through email...