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Philip v Spiecapag Niugini Ltd [2016] PGNC 51; N6226 (17 March 2016)

N6226

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 23 OF 2015

OSCAR PHILIP -trading as STONEPHILLS CONSULTANT
Plaintiff

V

SPIECAPAG NIUGINI LIMITED
First Defendant

TRANS WONDERLAND LIMITED
Second Defendant

Kundiawa: Liosi AJ
2016: 17th March

PRACTICE AND PROCEDURE – Application to dismiss proceedings against Second Defendant – Order 12 Rule 40 of National Court Rules – Failing to disclose a reasonable cause of Action – Order 8 Rule 27 National Court Rules – Frivolous and Vexatious – Failure by plaintiff to plead basis of claim for services rendered – Failure by plaintiff to plead terms of contract or Assignment although requested for by the defendant.

Held
1. Failure by the plaintiff to plead the basis of the claim although specifically requested for by the second defendant amounts to failure to disclose a reasonable cause of action.

2. Failure by the plaintiff to plead terms of contract, assignment and novation of a debt under an existing contract amounts also to embarrassment and an abuse of the process of court.

Cases Cited:

Jim Trading Ltd v Madison (2006) 3174.
Kenny Lero v Philip Stagg as Chairman of Central Tenders Board and Ors (2006) N3050.
Kope v Tourism PNG Ltd (2010) N4138.
MVI (PNG) T v James Pupune (1993) PNGLR 370,
NPF Board of Trustees v Maladina (2003) N2486.

17th March, 2016

1. LIOSI AJ: This is the second defendant's motion to dismiss the proceedings as against it for failing to disclose a reasonable cause of action pursuant to Order 12 Rule 40 and for been frivolous and vexatious pursuant to Order 8 Rule 27 of the National Court Rules.

Facts

2. The plaintiff entered into an Agreement with the first defendant to provide security, parking and lodging services at Poroma in Nipa Kutubu District between 2013 – 2014 during Papua New Guinea Liquefied Natural Gas (PNGLNG) Construction phase.

3. The Agreement was between the plaintiff and the first defendant. 㺼&1160; However, the plaintiff alle alleges that it also provided services to the Second defendant as well and the reason was that they travelled together in convoys.

4. Despite this it says it billed the first and Second defendants under the First defendant as it had an agreement only with the first defendant. Consequently only the first defendant paid.

5. When the construction phase of Liquefied Natural Gas (LNG) closed, the first defendant left leaving the Second defendant's debts unpaid.

6. Mr. Ripen Sarepo the Chief Executive Officer of the Second defendant says that at all material times the plaintiff had a contract with the first defendant only for the use of the plaintiff's facilities by the first defendant. There was never any agreement for the plaintiff to provide such services to the Second defendant.

7. Mr. Sarepo infact wrote to the plaintiff asking it to provide a valid purchase order or proof of a valid request by the Second defendant for provision of services amounting to the sum of K89, 400.00.

8. On 20th March, 2015 all documents were served at the offices of Warner Shand Lawyers Kundiawa who act for the plaintiff. To date one (1) year down no reply has been filed in response to the Defence and Affidavit in Support of Ripen Sarepo.

The Law

9. National Court Rules, Order 8, Rule 27 provides:

"Embarrassment, etc. (15/26)

(1) Where a pleading –

Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

Or

(a) Has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(b) Is otherwise an abuse of the process of the Court,

The court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(1) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

10. The Statement of Claim is misconceived. The plaintiff has dragged in the Second defendant by pleading existence of an agreement the plaintiff and the first defendant entered into and is trying to hold the Second defendant liable on this basis. Again this type of pleading is embarrassing - see MVI (PNG) T V James Pupune (1993) PNGLR 370.

11. The plaintiff's Statement of Claim is very vague and does not specify dates, location on how and when a contract between the First defendant and the plaintiff was entered into. This factor is not pleaded and amounts to embarrassment. On this ground alone, the Statement of Claim can be dismissed.

12. The Second defendant however, also argues that not only can the pleadings be dismissed on the above ground. It can also be dismissed under Order 12, Rule 40 of National Court Rules. Order 12, Rule 40 provides for non disclosure of reasonable cause of action proceedings been frivolous or vexatious on an abuse of process of the court.

13. From the Statement of Claim, the plaintiff alledges a contract with the first defendant only and yet has dragged in the Second defendant and to hold that as a basis to claim money from the Second defendant. This it is trying to do so without establishing the elements of any existing contract and without demonstrating a cause of action against the Second defendant.

14. The Statement of Claim by the plaintiff is both embarrassing and fails to disclose a reasonable cause of Action at law.

15. In the circumstances, the Second defendant's Notice of Motion is upheld. Orders are granted in terms of paragraph 1, 2, of the Notice of Motion filed on 06.03.2015. Costs are also awarded to the Second defendant to be paid by the plaintiff to be taxed if not agreed.

Ruling and Orders Accordingly,

___________________________________________________________
Tumun Kuma Lawyers as: Lawyers for the Applicant
Agents for Dawidi Lawyers: Lawyers for the Defendants