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Yaluma v Independent State of Papua New Guinea [2010] PGNC 91; N4088 (17 August 2010)

N4088

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 380 OF 2010

BETWEEN:

LUKE YALUMA
as customary representative for and on behalf of the
estate of the late TRAPURA YALUMA
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Sawong .J
2010: 13th & 17 August

PRACTICE & PROCEDURE – Motions – requirement to pleading jurisdictional basis

PRACTICE & PROCEDURE – Circumstances in which a claim for substantive relief in interlocutory proceedings is an abuse of the Court's process – Motion dismissed.

Held:

(1) A Motion that does not state the jurisdictional basis for the relief sought will be in breach of the Rule 8 of the Motions (Amendment) Rules 2005. Such a Motion is incompetent and should be dismissed.

(2) The relief sought in the Notice of Motion was for substantive and it was contrary to the National Court Rules for it to be sought in that manner; and therefore the Motion is an abuse of process and should be dismissed.

Cases cited:

Gabriel Yer, Secretary for Department of Finance v. Peter Yama (2009) SC986

Counsel

J. Simbala, for the Plaintiff
W. Mapisa, for the Defendant

17th August, 2010

DECISION

1. SAWONG .J – By a Notice of Motion filed on 16th July, 2010, the Plaintiff seeks the following orders;

(a) A Declaration that the Deed of Release executed between the Plaintiff and the Defendant in the proceedings WS No. 270 of 2000 – Trapura Yaluma v. The Independent State of Papua New Guinea on 3rd March, 2003 settling the claim in the proceeding at K122,435.38 is valid and binding, thus enforceable against the State.

(b) Judgment be entered for the Plaintiff against the Defendant for the sum of K122,435.38.

(c) The Defendant shall pay the Plaintiff interest at the rate of 8% per annum on the principal judgment sum from 3rd March, 2003 (date of Deed of Release) to the date of payment, pursuant to Judicial Proceedings (Interest on Debts and Damages) Act.

(d) The Defendant shall pay the Plaintiff's costs on solicitor and client basis.

(e) Such further or other orders.

2. The Motion came up for hearing on 13th August, 2010.

3. Before the Motion could be moved, Counsel for the Defendant, Mr Mapiso raised a preliminary objection as to the competency of the Motion. I heard that objection and the response, and adjourned to make a ruling. This ruling is on that objection.

4. The brief facts giving rise to these proceedings are these. The Plaintiff and the defendant entered into a Deed of Release on 3rd March, 2003. The Defendant has not paid the amount agreed in that Deed. Consequently, on 16th July, 2010, the Plaintiff filed an Originating Summons seeking Declaratory Orders and judgment for liquidated amount.

5. Mr Mapiso objected to the competency of this Motion on two basis.

6. First, he submitted that the Motion was incompetent as it did plead or state concisely the Court's jurisdictional basis to grant the reliefs sought. Here, he relied on Rule 8 of the Motions (Amendment) Rules 2005. He submitted that the Motion was contrary to Rule 8.

7. Secondly, he submitted that in the Motion the Plaintiff is seeking substantive relief which is not permissible and is contrary to Rule 9 of the Motions (Amendment) Rules 2005. Here, he relied on Rule 9 and the Supreme Court decision in Gabriel Yer, Secretary, Department of Finance v. Peter Yama (2009) SC986.

8. Mr Simbala, for the Plaintiff submitted that the Motion was competent as the reliefs sought are same as the ones pleaded in the Originating Summons.

9. I deal with the objection by considering the second leg of the submission by Mr Mapiso first for obvious reasons.

10. Rule 9 of the Motions (Amendment) Rules 2005, reads:

"9. Motions for interlocutory matters only

Except as otherwise provided in the National Court Rules, Motions shall be for a relief on interlocutory matters only and not for substantive relief, claimed in the originating process."

11. This Rule was specifically considered by the Supreme Court in Gabriel Yer, Secretary, Department of Finance v. Peter Yama (2009) SC986.

12. The facts of that case were somewhat similar to the facts of this case. The brief facts were as follows. The Respondent commenced proceedings in the National Court by originating summons seeking an order that the Secretary for Finance comply with a Deed of Settlement between him and the State. The day after he filed the Originating Summons, he sought and obtained by Notice of Motion from the National Court an order that the Secretary release and clear a cheque of K7.7 Million. The Secretary and other parties including the State appealed against the order on five grounds. One of the grounds of appeal was that the National Court had erred in law in granting a substantive relief by Notice of Motion when this was not permissible by the National Court Rules.

13. The Supreme Court upheld three of the grounds of appeal and quashed the decision of the National Court. The Court said at pgs.12 – 13:

"GROUND 5: BREACH OF RULES ABOUT GRANTING SUBSTANTIVE RELIEF BY NOTICE OF MOTION

60. The appellant argue that His Honour erred in granting substantive relief in interlocutory proceedings. The principal order sought in the originating summons was an order that the Secretary for Finance complies with the deed of settlement and pay Mr Yama K15.5 million. The principal order sought in the notice of Motion and the principal order made on 3 July 2008 was that the Secretary release and clear the cheque of K7.75 million forthwith. This was argued to be in breach of:
    
    • - the National Court Rules, Order 4, Rule 49-5(2)(f) [Rule 5(2)(f) of the Motions (Amendment) Rules 2005], which provides that when hearing an urgent ex parte application "the Judge shall not make any order in terms of the substantive relief sought in the originating summons"; and
      
    • - the National Court Rules, Order 4 Rule 49-9 [Rule 9 of the Motions (Amendment) Rules 2005], which states that except as otherwise expressly provided by the Rules "motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating summons process."
      
61. These Rules are a codification of what has become a rule of practice and procedure in PNG as a result of the National Court decision of Kapi DCJ (as he then was), in John Momis v. Attorney-General [2001] PNGLR 109 and the Supreme Court decision in NDCD v. Yama Security Services Pty Ltd (2003) SC707.
    

....

63. That may be so but we consider that obtaining an order for half of the amount claimed is a substantive order – a very substantive order – the significance of which is not diminished by referring to the number of other incidental remedies that were not granted. The Court must look at the substance of what the plaintiff was seeking: he was seeking an order for payment of K15.5 million. We uphold the appellants' arguments that this contravened the National Court Rules and was an abuse of process."

14. In the present case, the Notice of Motion seeks substantive relief. This is not permissible and is contrary to Rule 9 of the Motion Rules and the decision in Gabriel Yer & Others v. Peter Yama (supra).

15. Secondly, the Notice of Motion also does not state concisely the Court's jurisdictional basis. This is not permissible as it is contrary to requirements of Rule 8 of the Motion Rules.

16. For these reasons, I would upheld the objection and dismiss the Motion with costs.

___________________________________
N Tame Lawyers: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants