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Gulf Provincial Government v Baimuru Trading Pty Ltd [1998] PGNC 120; N1794 (10 December 1998)

Unreported National Court Decisions

N1794

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 670 OF 1998
BETWEEN: GULF PROVINCIAL GOVERNMENT
PLAINTIFF
AND: BAIMURU TRADING PTY LTD
DEFENDANT

Waigani

Sevua J
7 October 1998
10 December 1998

Counsel

E. Manu for Plaintiff

J. Shepherd for Defendant

RULING

10 December 1998

SEVUA J: The defendant, by way of notice of motion, has applied for an order that these proceedings be summarily dismissed pursuant to Order 12 Rule 40, and for costs on an indemnity basis.

I have dealt with a similar application on 5^th and 11^th August, this year, and I will advert to it later.

In the present proceedings the plaintiff’s writ of summons was filed on 15^th July, 1998; and purportedly served on the defendant on 24^th August, 1998. The defendant was served with a photocopy of the writ of summons, not a sealed copy as required. However, despite that, the defendant has filed a notice of intention to defend, and has submitted to the jurisdiction of the Court. The dates referred to above are important for the reasons I will revert to later.

The plaintiff’s claim is for a total amount of K 144,000.00 for alleged unpaid sales tax. No particulars have been endorsed on the writ, and none will be provided until trial. To me, this is trial by ambush. This Court needlessly emphasise the significance of proper and better particulars of a plaintiff’s claim in his pleadings. Such particulars are not only for the benefit of the defendant, but the Court as well.

The basis for the defendant’s application is that these proceedings amounted to harassment of the defendant, and are vexatious. The National Court Rules provide a discretionary power to the Court to dismiss proceedings which are vexatious – Order 12 Rule 40 (1). Pursuant to that power, the Court can stay or dismiss proceedings that show no reasonable cause of action, are frivolous or vexatious or an abuse of the Court’s process.

The plaintiff in this action had previously sued the defendant in WS 386 of 1996, claiming K 67,583.97 for alleged unpaid sales tax from 1989 to 1994. That action commenced on 15^th April, 1996, and was dismissed for want of prosecution on 11^th August, 1998.

The present proceedings commenced on 15^th July, 1998; and the plaintiff is claiming the sum of K 144,000.00 it alleged, the defendant owed in unpaid sales tax from 1985 to 1998. It is undoubtedly clear that whilst the proceedings in WS 386 of 1996 was on foot, the plaintiff instituted the present proceedings which, I consider relate to the same cause of action. Proceedings in WS 386 of 1996 was dismissed for want of prosecution. The plaintiff cannot commence a new action in the same cause of action after it had already been dismissed.

In my view, the plaintiff’s action in instituting WS 670 of 1998, the present proceedings, not only is vexatious, but an abuse of the process of the Court. Some cases on the Court’s power under Order 12 Rule 40 were discussed in two of my unreported judgments this year: Ronny Wabia -v- BP Exploration & Ors, N 1697, 26^th March, 1998, and Theresa’s Pty Ltd -v- PNGBC & Anor, N.1781, 13^th May, 1998; so I need not refer to them here. However, I want to reiterate that, vexatious proceedings are proceedings that cause vexation and harassment and is used to describe vexation to a defendant in being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed, or which can really lead to no possible good or, which for some other reason, he ought not to have defend.

Proceedings which are vexatious are those that put the defendant to the trouble of having to defendant proceedings which are useless and futile. See: Day –v- Victorian Railways Commissioner [1948 – 49] 78 CLR 62 at 84 per Latham, CJ.

I reiterate that the proceedings in WS 386 of 1996, which I dismissed for want of prosecution on 13^th August, 1998, is basically the same as the present proceedings. The plaintiff therefore cannot resurrect the same cause of action after is has been dismissed. The Court has an inherent power to protect itself from abuse of its process.

I am of the view therefore that the present proceedings are vexatious and an abuse of the process of the Court. The defendant’s application is therefore granted, and I order that the proceedings WS 670 of 1998 be dismissed, and the plaintiff pays the defendant’s costs on a solicitor/client basis, to be taxed if not agreed upon.

Lawyer for Plaintiff: Paul Paraka

Lawyer for Defendant: Shepherds