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Gulf Provincial Government v Baimuru Trading Pty Ltd [1998] PGNC 144; [1998] PNGLR 311 (10 December 1998)

[1998] PNGLR 311

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GULF PROVINCIAL GOVERNMENT

V

BAIMURU TRADING PTY LTD

WAIGANI: SEVUA J
7 October and 10 December 1998

PRACTICE AND PROCEDURE – National Court – Motion to dismiss – Grounds – Order 12 Rule 40 National Court Rules.

Facts

The defendant applied to dismiss the plaintiff’s claim on the grounds that it was vexatious and an abuse of process under Order 12 R 40(1) of the National Court Rules. The plaintiff had filed an action to recover unpaid taxes. Its earlier claim against the defendant for recovery of unpaid taxes was dismissed for want of prosecution.

Held

1. That the plaintiff’s proceedings are vexatious and an abuse of process of the court under Order 12 r 40(1) of the National Court Rules. Once an action is dismissed for want of prosecution, a claimant cannot, thereafter, be allowed to resurrect the same cause of action.
   

Ronny Wabia v BP Exploration & Ors [1998] PNGLR 8; Theresa’s Pty Ltd v PNGBC & Anor [1998] PNGLR 283 and Day v Victorian Railway Commissioner [1948-49] 78 CLR 62 at p 84 (per Latham CJ), applied.

Papua New Guinea cases cited

Ronny Wabia v BP Exploration & Ors [1998] PNGLR 8.

Theresa’s Pty Ltd v PNGBC & Anor [1998] PNGLR 274.

Other case cited

Day v Victorian Railway Commissioner [1948-49] 78 CLR 62.

Counsel

E Manu, for plaintiff.
J Shepherd, for defendant.

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 5th and 11th August, this year, and I will advert to it later.

In the present proceedings the plaintiff’s writ of summons was filed on 15th July 1998; and purportedly served on the defendant on 24th 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 K144,000.00 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 is 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 K67,583.97 for alleged unpaid sales tax from 1989 to 1994. That action commenced on 15th April 1996, and was dismissed for want of prosecution on 11th August 1998.

The present proceedings commenced on 15th July 1998; and the plaintiff is claiming the sum of K144,000.00 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 were on foot, the plaintiff instituted the present proceedings, which, I consider relate to the same cause of action. Proceedings in WS 386 of 1996 were 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 r 40 were discussed in two of my unreported judgments this year: Ronny Wabia v BP Exploration & Ors [1998] PNGLR 8, and Theresa’s Pty Ltd v PNGBC & Anor [1998] PNGLR 283; 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 13th August 1998, are 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 Lawyers.
Lawyer for defendant: Shepherds.