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Smugglers Inn Resort Hotel Ltd v Papua New Guinea Banking Corporation [2006] PGNC 3; N3062 (24 May 2006)

N3062

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 511 OF 2000

BETWEEN:

SMUGGLERS INN RESORT HOTEL LIMITED
First Plaintiff

NEISENAL NO.77 LIMITED
Second Plaintiff

YAMA SECURITY SERVICES LIMITED
Third Plaintiff

AND:

PAPUA NEW GUINEA BANKING CORPORATION
First Defendant

CHRISTOPHER BURT
Second Defendant

Waigani: Lay, J.

2006: 15 AND 24 May

PRACTICE AND PROCEDURE─ National Court─O4 r.36(1)─ Dismissal for want of prosecution─ no adequate explanation for delay ─ proceedings dismissed.

PRACTICE AND PROCEDURE─ inherent jurisdiction─ adoption of common law─ jurisdiction to make orders against vexatious litigant─ jurisdiction to prevent abuse of process.

On an application by the Defendants to dismiss proceedings for want of prosecution and to obtain orders making the Plaintiffs vexatious litigant's,

HELD:

1. where four (4) years and eight (8) months had elapsed since the Plaintiff's motion to raise the Fairness of Transactions Act had been filed and (a) during three (3) years six (6) months of that time the Plaintiffs had not obeyed a Consent Order to prosecute the motion (b) two (2) years and five (5) months had elapsed since the Defendants motion to dismiss had been filed, during which time the Plaintiffs have done nothing to bring the action to trial; the proceedings would be dismissed.
   

Ronald Nicholas v Commonwealth New Guinea Timbers Pty. Ltd [1986] PNGLR 133 followed and applied. Marksal Ltd and Robert Needham v Mineral Resources Development Limited, Masket Iangaleo, Gerea Aopi and Charles Lepani N1807, Bank of South Pacific Limited v Rau Wok N2118, NHC v Yama Security Services N1985 referred to.

2. the court has an inherent jurisdiction in the protection of its processes from abuse, to make orders:
   
   1. to prevent the making of anticipated, unwarranted and vexatious applications in an action which is pending in the court, unless the applicant first obtains leave by demonstrating that the application is arguable ("a vexatious litigant order");
      
   2. to prevent the commencement of anticipated and unwarranted and vexatious proceedings, unless the litigant the subject of the order first obtains leave by showing that the case is arguable ("an extended vexatious litigant order").
      

(a) a vexatious litigant order would not normally be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit;

2. an extended vexatious litigant order would ordinarily be made only after:
   
   1. the litigant has commenced a proceeding that has little or no basis in law but has the effect of subjecting the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and
      
   2. the litigant has sued the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations,
      
   3. the litigant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all, should be joined in the same action;
      
   4. the litigant automatically challenges every decision on appeal and refuses to take any notice or give any effect to orders of the court.
      

Gedaljahu Ebert v. Trevor Nigel Birch (Liquidator of Europride Limited), Midland Bank PLC and Joan Yvonne Venvil, Ralph Wolfe and J. Rabonowicz [1999] EWCA Civ 1130 and Bhamjee v Forsdick & Ors (No.2) EWCA Civ 1113 followed and applied. Stewart v Auckland Transport Board [1951] NZGazLawRp 29; [1951] NZLR 576, Commonwealth Trading Bank v Inglis [1974] HCA 17; [1974] 131 CLR 311, Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214, Von Risefer & Ors v Permanent Trustees Co Pty. Ltd & Ors [2005] QCA 109, Peter Pauke [1976] PNGLR 210, State v Peter Pauke (No.2) [1977] PNGLR 41; PNG Forest Products Pty. Ltd v State [1992] PNGLR 85, Ronny Wabia v BP Exploration Operating Co Ltd N1982, Chris Smith v Ruma Constructions Ltd N1982, State v Zacchary Gelu & Anor N2322, Anderson Agiru v Electoral Commission SC687 referred to.

4. There have been two (2) proceedings struck out as being duplicitous of these proceedings. However those proceedings were commenced four and five years ago and since they were ruled upon there has been no indication of the Plaintiffs commencing further similar proceedings against the Defendants or successive parties.
   
5. Vexatious litigant order refused.
   

Counsel:
E. Anderson with J. Holingu, for the Defendants
B. Lomai, for the Plaintiffs

1. LAY J: The Second Defendant has moved the Court by motion filed on 27 November 2003 for orders:

1. That the proceedings be dismissed;
2. Save as provided for in Order 15 of the Consent Order dated 8 August 2001, all interlocutory or interim orders in this proceeding are discharged;
3. That the Plaintiffs and Mr. Peter Charles Yama pay the costs of the entire proceedings on an indemnity basis;
4. That the Plaintiffs, Mr. Peter Charles Yama, Mrs. Agatha Yama, Ms. Mary Yama, Yama security Services Ltd., along with their servants, agents and employees are restrained from commencing any further proceedings against the Defendants or any officer, servant, or agent of them, or any Receiver or Liquidator appointed by them except with leave of the Chief Justice or Deputy Chief Justice;
5. That any request for leave of the Chief Justice or the Deputy Chief Justice in accordance with Order 5 above shall be by Notice of Motion as a Miscellaneous Proceeding supported by an affidavit of Mr. Peter Charles Yama and the affidavit shall give full disclosure of all matters relevant to the application and shall be served with the motion and all supporting documents on the Defendants not less than three (3) clear days before hearing by the Chief Justice or Deputy Chief Justice;
6. That Peter Charles Yama must give a copy of these orders to any lawyer instructed by him or any of the Plaintiffs or other Yama Group of Companies, or Mary Yama or Agatha Yama;
7. The time for sealing of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

2. On the hearing of the motion the Second Defendant abandoned the claim for costs against Peter Charles Yama sought in paragraph 3 above. To secure borrowings from the First Defendant each of the Plaintiff's granted interlocking securities comprising inter alia real property mortgages, and Registered equitable mortgages over the Plaintiffs registered by the Registrar of Companies. The Plaintiffs defaulted on the terms of the borrowing and on 30 October 2000 the Second Defendant was appointed Receiver of the First and Second Plaintiffs.

3. The Plaintiffs issued these proceedings in late December 2000 seeking the removal of the Receiver. The Plaintiffs obtained ex parte interlocutory orders on 23 December 2000 to remove the Second Defendant as receiver pending trial of the action. This order was set aside on 21 February 2001. On 9 April 2001 the Plaintiffs obtained further ex parte restraining orders against the Defendants. On 8 August 2001 the parties entered into consent orders to protect the parties’ positions until trial. I will set out the effect of those orders a little later. On the 19 March 2002 the Plaintiffs filed a motion to set aside the Consent Orders. On 2 April 2002 the scheduled trial of substantive matters was vacated on the Plaintiffs application. And on 11 April 2002 the consent orders were set aside. The Defendants appealed against the order setting aside the Consent Orders. On 17 July 2003 a single judge of the Supreme Court stayed the Orders setting aside the Consent Orders. On 25 November 2003 the Supreme Court heard the appeal and its decision was handed down on 4 November 2005, quashing the decision and setting aside the Consent Orders.
4. The Consent Orders ran to 3½ pages and there is attached a scheduled of fourteen (14) registered securities given by the Plaintiffs. The effect of the orders was as follows:

1. The ex parte orders obtained by the Plaintiffs on the 9 April 2001 was set aside;
2. The Second Defendant was given full financial and legal possession of all of the secured real property and its income, with liberty to exercise its powers of sale under the mortgages;
3. the Second Defendant was given liberty to appoint a Receiver of the First and Second Plaintiffs and another company on terms that the Receiver would conduct the business but not dispose of the business of those companies;
4. The Yama Group and Mr. Yama were to provide full cooperation, deliver up all books and records and were restrained from interfering with the Receivership by the Second Defendant of the real property of the companies by themselves or by approaching the Police;
5. the Second Defendant was restrained from filing any petition against the Third Plaintiff, Mr. Peter Yama, Mrs. Agatha Yama or Mrs. Mary Yama.
   

5. Some of the orders were specifically expressed to be "permanent orders". The other orders were to "remain in place until determination of the Notice of Motion filed by the Plaintiffs herein dated the second of August 2001 or until further order of the court." The motion of 2 August 2001 raised the issue of the Fairness of Transactions Act.

6. On 21 March 2006 the Defendant’s lawyers wrote to the Plaintiffs’ lawyers advising their intention to request that this application to dismiss the proceedings be listed for hearing on 7 April 2006. The matter was in fact listed for 12 April 2006 which was confirmed to the court by the Defendants lawyer's letter dated 7 April 2006 which was also copied to the current and former lawyers for the Plaintiffs.

7. At the commencement of this application I granted leave to the Plaintiffs to file in court, but refused leave to proceed with, a cross-motion to strike out the Defendant's motion, as the Plaintiffs had had more than enough time to file and serve the motion in the time prescribed by the Rules.

8. There were related proceedings entitled OS No. 56/2001 commenced by the Plaintiffs in Madang in which the Plaintiffs obtained further ex parte orders restraining the First Defendant's agents. Those proceedings were subsequently struck out, as were proceedings WS 250/2002, both on the basis that they sought the relief requested in these proceedings.

Submissions

9. The Defendant's submission on the application to strike out the proceedings is that the Plaintiffs did not prosecute with dispatch the Motion of 2 August 2001, nor did they seek to set down the substantive matter for trial. From the filing of the motion until 8 August 2001, the Plaintiffs had the usual obligation to prosecute the action and from the entry of the Consent Orders on 8 August 2001 until they were set aside on 11 April 2002, and from 17 July 2003, when the order setting aside the Consent Orders was stayed, until the present, the Plaintiffs have been under a positive obligation by order of the Court to "properly prosecute with dispatch the Notice of Motion filed by the plaintiffs herein dated 2 August 2001."

The Law

10. Order 4 Rule 36(1) provides:

"When a plaintiff makes defaulting in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings."

11. The case of Ronald Nicholas V. Commonwealth New Guinea Timbers Proprietor Ltd. [1986] PNGLR 133 (Woods J.) is often cited as containing the general principles, the relevant passage being:

"An excellent analysis of the law on the inherent power to dismiss for want of prosecution is to be found in the case of Calvert v Stollznow, an unreported decision of Cross J of the Supreme Court of NSW found in the Supreme Court Procedure NSW Service Vol 2 at 44 under Practice Decisions (Affirmed on appeal [1980] 2 NSWLR 749). His Honour in that case analysed Australian and English decisions. He notes that prior to 1967 the law in New South Wales and England tolerated delay within fairly wide limits. The principle being that there was no point in striking out an action which the plaintiff could immediately commence.

12. Then his Honour notes that in 1967 the Courts in England appeared to make a deliberate policy decision and adopted a new and sterner approach. See Salmon LJ in Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657 at 659: "It is of the greatest importance in the interests of justice that these actions should be brought to trial with reasonable expedition" and see Birkett v James [1978] AC 297.

13. However when one looks at these cases and other examples it is not necessarily a sterner approach but rather a more careful explanation and application of the principles that apply.

14. In the case of Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v James, the courts laid down the following principle (at 298):

"That the power of the Court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant."

15. Where there is a long delay "a balance must be struck as between the plaintiff and defendant and in the end the Court must decide whether or not in the balance justice demands that the action should be dismissed". See the words of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411."

16. Some examples of the application of the principles in that case are Marksal Ltd and Robert Needham v Mineral Resources Development Limited, Masket Iangaleo, Gerea Aopi and Charles Lepani N1807 where the Plaintiff ignored the Defendant's efforts to get the case on for trial, the case of Bank of south Pacific Limited v.Rau Wok N2118 where the applicant defendant gave lengthy written notice to the Plaintiff of its intention to make an application under O.10 r.5, which the Plaintiff ignored and the case of NHC V. Yama Security Services N1985 where one (1) year and ten (10) months elapsed with no action by the Plaintiff and no explanation for the delay. The court in that case said "a litigant, especially a plaintiff, who initiated legal proceedings has the obligation to ensure he prosecutes the proceedings without delay."

17. I set out in the following table an analysis of what has occurred to demonstrate the time which has elapsed.

18. In defence of the Defendants application, the Plaintiffs rely upon the affidavits of Mr. Peter Yama sworn on 21 December 2000, 10 February 2001, 28 February 2001 and 31 July 2001. Those affidavits go to the merits of the action and do not provide any explanation for the delay in prosecuting the Plaintiffs motion filed on 2 August 2001 nor the delay in prosecuting the action since filing of that motion. The Plaintiffs also rely on the affidavits of John Poro sworn on 22 March 2002 and 15 May 2006.

19. The affidavit of 22 March 2002 annexes a letter from Poro Lawyers to Gadens Lawyers making a conditional offer of instalment settlement of the Plaintiffs debt and the deponent says "I believe the Plaintiffs are genuine in trying to settle the debts and the Defendants are prolonging the proceedings." I do not find this affidavit of any assistance.

20. The affidavit of John Poro sworn on 15 May 2006 says in relation to the Defendants motion of 27 November 2003, he cannot recall being served with it, he cannot recall having seen it, he may be wrong, the Defendant should provide a copy of the motion and supporting affidavits in order that the Plaintiff can respond to it. In the face of the Defendants evidence of service of the motion and the several items of recent correspondence I referred to earlier, warning of the Defendants intention to move the motion, I regard John Poro's evidence as no more than a prevarication and untrue with respect to the denial of service. The affidavit raises three (3) substantive issues that do not go to the delay question. Mr. Poro appeared as counsel on 19 April 2006 when the Defendants application was specially fixed for hearing before the motions judge on 11 May 2006. He had almost a month before the hearing of the motion before me, to have his clients directors swear affidavits but the best the Plaintiffs were able to do was the swearing and filing of Mr. Poro's affidavit the day prior to the hearing.

21. Apart from the claims to lack of service or lack of memory of service, Mr. Poro's affidavit refers to the parties dealing with interlocutory issues since the writ was issued and that the chronology in Mr. John Maddison's affidavits sworn on 22 March 2006 explains the delay in finalizing the matter. He also says that there are issues concerning the order of the Supreme Court in SCA 41 of 2002 (the appeal from the order setting aside the Consent Orders) which await clarification or rectification by the Supreme Court.

22. The Plaintiffs appeared to be trying to rely upon other applications and proceedings, and particularly the Supreme Court appeal proceedings in SCA 41 of 2002, as a reason for the lack of progress in this matter. One thing is clear about SCA 41 of 2002, the issues involved in that appeal had nothing to do with the substantive matters the Plaintiffs claim they wish to advance in this proceeding. The appeal did not involve the Fairness of Transactions Act, it did not involve the issue of whether the Bank of South Pacific Ltd. is properly the successor of Papua New Guinea Banking Corporation, nor whether the Plaintiffs act of default occurred, or whether it was created by the Papua New Guinea Banking Corporation and not the Plaintiffs. There was no aspect of the appeal which prevented the Plaintiffs from prosecuting the notice of motion filed on 2 August 2001 or bringing to trial the issues which Mr. Poro in his affidavit of 15 May 2006 says the Plaintiffs wish to bring to trial in these proceedings. In short the appeal in SCA 41 of 2002 does not explain the delay shown in the table above.

23. I have examined the file covers for the five (5) files which make up the court record in these proceedings. The Plaintiffs have filed nothing since 2003, apart from Mr. Poro's affidavit of 15 May 2006 and the motion filed in Court. No credible explanation has been shown for the delay in prosecuting the Plaintiffs motion of 2 April 2001 or the action generally.

24. The Plaintiffs delay is so extensive that it must cause considerable expense and inconvenience to the Defendants. Further, because the substantive issues which the Plaintiff claims it wishes to advance necessarily challenge the right of the Defendants to exercise the rights of the Papua New Guinea Banking Corporation under registered securities, including the power of sale contained in mortgages, the rights of third parties who have obtained title from the Defendants exercise of the power of sale is also put in issue.

25. The delay has been inordinate. It has involved a deliberate neglect or refusal on the part of the Plaintiffs to obey the Consent Order to prosecute their motion of 2 August 2001. The delay is unexplained. The Plaintiffs have put forward nothing of substance to show that the balance of convenience and the interests of justice require that the action should continue.

26. I order that the proceedings be struck out and that the Plaintiffs pay the Defendants costs of and incidental to the proceedings. Orders 1 to 5, 8, 9 and 10 of the Consent Orders survive the striking out of the proceedings and remain in force in accordance with the intent of the provisions of order 15 of the Consent Orders.

27. Before leaving this part of the judgment, I note that Mr. Poro’s affidavit sworn on 15 May 2006 contains a submission that the elapse of time since the Defendants application to strike out the proceedings was filed should invalidate it. My view is this; the fact that the motion was not moved constituted a constant warning to the Plaintiffs that they should get on with their action. The Defendants could have abandoned the filed motion and filed a new motion instead of sending warning correspondences to the Plaintiffs, but if the warning letters were substituted by a motion that would not change the Plaintiffs position in any respect. Therefore I do not see the delay in prosecution of the Defendants motion as being relevant to the issue of whether the Plaintiffs have been guilty of delay warranting dismissal of the proceedings.

VEXATIOUS LITIGANT ORDERS

28. The Defendants have contended that this Court has an inherent jurisdiction to make a "vexatious litigant" order to prevent the Plaintiffs from attempting to re-litigate in any guise the Plaintiffs claims against the Defendants.

29. In England, Australia and New Zealand legislation empowers the courts to make orders restricting access to the courts by vexatious litigants who repeatedly attempt to re-litigate issues already decided. It has been held no inherent jurisdiction remains in the court to make such orders, since the passage of the legislation, both in New Zealand: See Stewart v. Auckland Transport Board [1951] NZGazLawRp 29; [1951] NZLR 576, and in the High Court of Australia: See Commonwealth Trading Bank v. Inglis [1974] HCA 17; [1974] 131 CLR 311. The England and Wales Court of Appeal (Civil Division) has disagreed with that view, being of the opinion that it was better advised by the researches of counsel than those New Zealand and Australian courts were: See Gedaljahu Ebert v. Trevor Nigel Birch (Liquidator of Europride Limited), Midland Bank PLC and Joan Yvonne Venvil, Ralph Wolfe and J. Rabonowicz [1999] EWCA Civ 1130 (Lord Woolf, Lord Justices Otton & Aldous).

30. In Ebert v Birch & Ors (supra) it was the unanimous view of the court that:

"... the court has an inherent jurisdiction to prevent further applications being made without leave of the court in existing proceedings which are already before the court. This was authoritatively decided in Grepe v Loam [1887] UKLawRpCh 202; (1887) 37 Ch.D 168;
"... the existence of the statutory power has not supplanted the power of the court to make a limited Grepe v Loam order;

3. if there was an application for an order of the same width as the statutory jurisdiction, the court could only appropriately deal with such an application under the statutory jurisdiction;
4. there is no reason in principle why the court should not exercise power (by making an extended Grepe v Loam order) to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings. The court has power to make such an order;
5. a Grepe v Loam order or an extended Grepe v Loam order is only an inhibition from bringing proceedings without the leave of the court. If the proceedings are arguably meritorious leave will be forthcoming.
   

31. I understand this opinion of the Court to be declaring the common law as it stood from the late 19th century down to the present day, restricted in its application to some extent, but not altered, by legislative intervention.

32. In the case of Bhamjee v Forsdick & Ors (No.2) EWCA Civ 1113 (Master of the Rolls, Brooke & Dyson LJJ's) their Lordships explained that the signal features of the traditional Grepe v Loam order were that:

1. It could be made by any judge of any court upon motion. The jurisdiction was not vested in the divisional Court of the Queen's Bench division alone, and the Attorney General did not have to be involved.
2. The order barred the litigant in question from making any further application in the matter without first obtaining the leave of the court.
3. If an application was made without the leave of the court being obtained, there was no need for the other side to attend, and the application would be dismissed without being heard.
4. The order was susceptible to appeal if permission to appeal was granted.
   

33. The court then summarizes the state of the authorities as follows:

"This court, like any court, has an inherent jurisdiction to protect its process from abuse;

6. the categories of abuse of process will never be closed;
7. no litigant has any substantive right to trouble the court with litigation which represents an abuse of its process;
8. so long as the very essence of a litigant's right to access the court is not extinguished a court has a right to regulate its processes as it thinks fit (absent any statute or rule of practice or direction to contrary effect) so long as its remedies are proportionate to the identified abuse (whether it is existing or threatened);
9. one way in which a court may legitimately regulate its processes is by prescribing a procedure to be conducted entirely in writing."
   

34. The Court then examined the circumstances in which orders might be made. I summarize what the court said in this way:

1. an order restraining the making of applications in an action would not normally be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit. The order would ordinarily remain in effect for the duration of the proceedings and will identify the judge to whom the necessary application for leave should be made;
2. an order restraining the commencement of fresh proceedings by a vexatious litigant would ordinarily be made after the litigant has commenced proceedings that has little or no basis in law but has the effect of subjecting the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant. And the litigant has sued the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations; or the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all should be joined in the same action; that the claimant automatically challenges every adverse decision on appeal, and that the claimant refuses to take any notice or give any effect to orders of the court.
   

35. The Court in the Bhanjee v Forsdick & Ors case then went on to discuss restricting the right of appeal for vexatious litigant's, which is not applicable here.

36. In the case of von Risefer & Ors v. Permanent Trustee Co Pty. Ltd & Ors [2005] QCA 109 (McPherson, Keane, Philippides JJA) the court followed Ebert v Venvil and made an order restraining plaintiffs in an action from taking any further steps in named proceedings or issuing any new proceedings in any Queensland court against named defendants in or arising out of or concerning the allegations made in the named proceedings, without the prior leave of a judge of the trial division of the Supreme Court. The Court found that it was a court of unlimited jurisdiction pursuant to the provisions of the Constitution of Queensland 2001 s.58 and had an inherent power to make the order. It distinguished Commonwealth Trading Bank v Inglis and agreed with French J. where he said in Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214 at 221:

"I do not regard the decision in Commonwealth Trading Bank v. Inglis as so constraining the inherent jurisdiction or the implied incidental power of this court or the application of s.23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the court."

37. Counsel for the Plaintiffs has submitted that an order restraining his client would be inconsistent with the Constitution s.37. Only s.37(11) and s.37(12) relate to civil proceedings and they guarantee a fair public hearing by an impartial court within a reasonable time. In my opinion nothing in those provisions would be offended by an order which required a potential litigant to seek leave before commencing proceedings. It is no more than is required by the O.16 procedure for judicial review or an appellant to the Supreme Court from findings of fact.

38. The common-law rule is not inconsistent with a Constitutional Law or a statute, is not in my opinion inapplicable or inappropriate to the circumstances of Papua New Guinea and in its application to matters of commerce is not inconsistent with custom generally, although this must be determined on a case-by-case basis: See Constitution Scheduled 2.2.

39. This court has consistently taken the view that it has inherent jurisdiction to prevent abuse of its processes: See State v Peter Pauke [1976] PNGLR 210 (O'Leary AJ), State v Peter Pauke (No. 2) [1977] PNGLR 41 (Frost CJ) (criminal proceedings), PNG Forest Products Pty. Ltd. v. State [1992] PNGLR 85 (Sheehan J.), Ronny Wabia v BP Exploration Operating Co Ltd. [1998] PNGLR 8 (Sevua J.), Christopher Smith V. Ruma Constructions Ltd N 1982 (Sakora J), State v Zachary Gelu & Anor N2322 (Kandakasi J). The Supreme Court has held that multiple actions for the same relief is an abuse of process and cannot be permitted: Anderson Agiru v Electoral Commission SC 687.

40. I find that I should apply the statements of principal in Ebert v Birch & Ors and Bhanjee v Forsdick & Ors in relation to orders against vexatious litigants, in an appropriate case in Papua New Guinea. And I would restate the rule in this way - the court has inherent jurisdiction in the protection of its processes from abuse, to make orders:

1. To prevent the making of anticipated, unwarranted and vexatious applications in an action which is pending in the court, unless the applicant first obtains leave by demonstrating that the application is arguable, which I will call a vexatious litigant order;
2. To prevent the commencement of anticipated and unwarranted and vexatious proceedings, unless the litigant the subject of the order first obtains leave by showing the case is arguable, which I will call an extended vexatious litigant order.
   

This Case

41. These proceedings having been disposed of, a vexatious litigant order in these proceedings is not relevant. Is this an appropriate case in which to make an extended vexatious litigant order? That requires an examination of the history of the litigation insofar as the particulars are before me.

42. As I understand the Defendants case, it is submitting:

1. Proceedings entitled OS 56/2001 were held to be an abuse of process because the relief sought in them could have been obtained in these proceedings: See the ruling of Sakora J;
2. in the same proceedings Salika J stated "the conduct of the matter since I took over the matter has been that the Plaintiffs have generally tried to slow progress of the hearing of this application. On all occasions, applications have been made to adjourn the matter.";

100. proceedings entitled WS 250 of 2002 (Peter Yama and others against others and the PNGBC) were held to be an abuse of process and a duplication of OS 511 of 2000;

4. in SCA 41 of 2002 in which the Defendants sought to set aside the order of the National Court, setting aside the Consent Orders because Mr. Peter Yama had not understood them, the Supreme Court held that he had in fact understood the orders;
5. Mr. Peter Yama and his wives have failed to prosecute their appeal in SCA 110 2004 for two years.
   

43. I do not think I should take into account SCA 110 of 2004 or the alleged failure to prosecute it because that is clearly a matter within the jurisdiction of the Supreme Court and can be dealt with pursuant to O.7 r.53 of the Supreme Court Rules by the Supreme Court. The Supreme Court has not ruled upon the issue and it is not within my jurisdiction to place my views upon it.

44. It is true that proceedings WS 250 of 2002 and OS 56 of 2001 were struck out as being duplicitous of these proceedings and interlocutory orders obtained in those proceedings set aside. However those proceedings were commenced four (4) and five (5) years ago and since they were ruled upon and struck out there has been no indication of the Plaintiffs commencing further proceedings against the Defendants, or successive parties, claiming substantially the same relief. It does not seem to me that the factual situation contemplated in Ebert v Birch & Ors or Bhanjee v Forsdick & Ors, as the precondition to an extended vexatious litigant order, has been made out. For that reason I refuse the order sought. The result might have been different if the Defendants application had been brought, or heard, closer to the time that WS 250 of 2002 and OS 56 of 2001 were struck out.

Costs

45. The Defendants abandoned their claim for indemnity costs against Mr. Peter Charles Yama and costs have been ordered against the Plaintiffs following the event on the dismissal of these proceedings. Therefore nothing further needs to be said on the issue of costs.

Orders:

1. The proceedings are struck out for want of prosecution;
   
2. Orders 1 to 5, 8, 9 and 10 of the Consent Orders made on 8 August 2001 continue in force;
   
3. The Defendants application for vexatious litigation orders is refused;
   
4. The Plaintiffs are to pay the Defendants costs of and incidental to the proceedings.
   

Gadens Lawyers: Lawyers for the Applicant Defendant
Lomai and Lomai: Lawyers for the Respondent Plaintiffs