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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HR (WS)NO 696 OF 2019
BETWEEN:
KONMAI KINDI & BENNICK BERRY FOR THEMSELVES AND ON BEHALF OF 15 OTHERS
Plaintiff
AND:
MIRANDA GUAN
First Defendant
AND:
WU – JUI CHE MARIO
Second Defendant
AND:
JANT LIMITED
Third Defendant
AND:
LING QIN GUAN
Fourth Defendant
AND:
FU QUAN HE
Fifth Defendant
AND:
JIA HAO ENTERPRISES LIMITED
Sixth Defendant
Madang: Narokobi J
2020: 23rd June, 07th July
PRACTICE AND PROCEDURE – application to dismiss proceedings under Order 12 Rule 40(1) of the National Court Rules – Applicant under duty to plead alternative grounds – Failure to – application refused.
SECURITY FOR COSTS – Application under Order 14 Rule 25 (1) and (2) – relevant considerations – where application is delayed and amount claimed is not quantified – application refused.
Facts
The Plaintiffs have been living without title on state land. The current proprietor wishes to evict them from the property. They have filed proceedings claiming equitable interest in the land and negligence for property destroyed in the clearing of the land and also for property they currently occupy. The First, Second, Fourth, Fifth and Sixth Defendants, have in the meantime sought dismissal of the proceedings and security for costs.
Held:
(1) Each of the grounds under Order 12 Rule 40(1) of the National Court Rules are alternative grounds which should be specifically pleaded in the notice of motion as distinct grounds. They should not be lumped together.
(2) Since the grounds in Order 12 Rule 40(1) of the National Court Rules were lumped together in the Notice of Motion, the application is refused.
(3) Three considerations from decided cases on security for costs are firstly, that proceedings are brought on behalf of another, secondly, there must be no delay in making an application for security for costs and thirdly, the amount claimed must have some evidentiary basis.
(4) Although the proceedings were brought on behalf of other plaintiffs, since there was undue delay in making the application and no evidentiary basis provided for the security of costs, the application was refused as it may be oppressive on the plaintiffs.
(5) Despite the rejection of the application for dismissal, the court in its inherent power to control proceedings and Order 8 Rule 27 of the National Court Rules can consider on its own initiative whether the statement of claim discloses a reasonable cause of action.
(6) In the circumstances, the statement of claim pleaded a cause of action known in law and should not be dismissed.
Cases Cited:
The following cases are cited in the judgment:
Borok v Ok Tedi Mining Ltd [2017] PGNC 378; N7087
Kuman v Digicel (PNG) Ltd [2013] PGSC 10; SC1232
Premier Corporation Ltd v Dukemaster (PNG) Ltd [2019] PGNC 254; N8057
Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PNGLR 396
Yagon v Nowra No 59 Ltd [2008] PGNC 82; N3375
Yalbees v Amaiu [2018] PGNC 264; N7393.
Treatises referred to:
Sir Salamo Injia and Gregory Lay, Civil Procedure in the National in the National Court (Hong Kong: Kodak House Phase)
Counsel:
Mr. D F Wa’au, for the First, Second, Fourth, Fifth and Sixth Defendants
Mr. K Kindi, with leave of the court for himself and 15 other Plaintiffs
RULING
7th July, 2020
1. NAROKOBI, J: This is an interlocutory application to dismiss the proceedings and alternatively for security for costs.
A BACKGROUND
2. The First, Second, Fourth, Fifth and Sixth Defendants have filed an application by way of Notice of Motion to dismiss the entire proceedings pursuant to Order 12 Rule 40(1)(a),(b) and (c) of the National Court Rules and in the alternative, security for costs pursuant to Order 14 Rule 25 (1) and (2) and Order 12 Rule 1 of the National Court Rules.
3. In support of the Notice of Motion it relies on the affidavits of:
4. Order 12, Rule 40 of the National Court Rules is in the following terms:
“40.Frivolity, etc. (13/5)
(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c)the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
5. Order 14 Rule 25 (1) and (2) of the National Court Rules is in the following terms:
“25.Cases for security. (53/2)
(1)Where in any proceedings, it appears to the Court on the application of a defendant
(a)that a plaintiff is ordinarily resident outside Papua New Guinea; or
(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so; or
(c) subject to Sub-rule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process; or
(d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings,
the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given.
(2)The Court shall not order a plaintiff to give security by reason only of Sub-rule (1)(c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive.”
6. In reply, the Plaintiff relies on the affidavit of Konmai Kindi filed on 23 June 2020.
B ISSUES
7. After considering the First, Second, Fourth, Fifth and Sixth Defendants Notice of Motion and submissions and Plaintiff’s submission, I consider the following to be the relevant issues:
C LAW AND APPLICATION OF LAW TO THE ISSUES
8. The First, Second, Fourth, Fifth and Sixth Defendants Notice of Motion filed on 16 June 2020 seeks the following order:
“2. Pursuant to Order 12 Rule 1 and Rule 40 (1)(a), (b) and (c) of the National Court Rules, and order for dismissal of the proceedings being for frivolous, vexatious and showing no reasonable cause of action in law and been for abuse of court process”.
9. I note from Order 12, Rule 40, that they are stated in the alternative, that is, if you seek dismissal under paragraph (1) (a), then paragraph (1)(b) and (1)(c) is usually not sought or if it is, then it is in the alternative.
10. In this particular case, all the alternative paragraphs in Order 12, Rule 40 are pleaded together. This makes it difficult for the court to focus on relevant issues to deliberate on.
11. I note from the text, “Civil Procedure in the National Court” by Sir Salamo Injia and Gregory Lay, they make the following observation at pg 281 as a guide to interpreting and applying Order 12 Rule 40 of the National Court Rules:
“Each of the grounds under Rule 40 are alternative grounds which should be specifically pleaded in the notice of motion as a distinct ground. They should not be lumped together.”
12. With respect, I adopt this statement as instructive and applicable to the present application. For this reason, I refuse the orders sought in term two (2) of the Notice of Motion of the First, Second, Fourth, Fifth and Sixth Defendants.
13. In relation to the orders sought for security for costs, I have had the benefit of considering past cases on this issue such as Borok v Ok Tedi Mining Ltd [2017] PGNC 378; N7087 and Premier Corporation Ltd v Dukemaster (PNG) Ltd [2019] PGNC 254; N8057. Three considerations that have come out from these cases respectively in relation to an application for security for costs are -firstly, whether the case is brought on behalf of another, secondly, that there must be no undelay in making an application for security for costs and thirdly, the amount claimed must have some basis.
14. This matter is brought on behalf of other plaintiffs, so the first consideration is satisfied.
15. In terms of the second consideration, I note from the affidavits that the writ of summons was served on 4 October 2019. In my view there has been undue delay in making the application.
16. Thirdly, the First, Second, Fourth, Fifth and Sixth Defendants has not justified the amount of K10,000 it seeks as security for costs. In the circumstances it may be oppressive. I therefore refuse this order sought in the Notice of Motion.
17. That however does not end the matter. The court has an inherent power to control its proceedings from abuse and should scutinise whether the statement of claim discloses a reasonable cause of action under Order 8 Rule 27 of the National Court Rules on its own initiative. This of course must be balanced against the constitutional right to be heard.
18. I have read the Statement of Claim to understand the cause of action that the plaintiffs are relying on.
19. The statement of claim pleads negligence and breach of human rights as a result of equitable interests in the property the subject of the proceedings. This is evident from paragraphs 10 to 19. They do not dispute title to the property.
20. There are three main types of damages being claimed – first for gardens being destroyed without notice, second for compensation for value of buildings on the land when they will have to dismantle and vacate, a future event, and thirdly, damages for breach of human rights.
21. I have considered several decisions on this issue, such as Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamba [1981] PGNC 91; [1981] PNGLR 396,Yagon v Nowra No 59 Ltd [2008] PGNC 82; N3375 and Yalbees v Amaiu [2018] PGNC 264; N7393.
22. What they seem to be saying is that a person who can prove equitable interest in land, is entitled to damages for property destroyed without notice, but is not entitled to damages after they have been given proper and reasonable notice to vacate.
23. Although I have dismissed the First, Second, Fourth, Fifth and Sixth Defendants Notice of Motion, my view, that is without making any findings of fact and law, is that if the Plaintiffs succeed at trial that they have an equitable interest in the land, and prove that their gardens were destroyed without notice, they will be entitled to damages only for this item and possibly breach of human rights. The highest they can claim for existing semi-permanent structure, is reasonable notice to allow time to dismantle their property and leave. There is no clear case authority for damages after reasonable and proper notice is given for persons with equitable interest to vacate by the registered proprietor.
24. I am therefore able to follow the story of the plaintiffs and what they are seeking from the court. I note the Supreme Court case in Kuman v Digicel (PNG) Ltd [2013] PGSC 10; SC1232, it held that:
“Though desirable it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet.”
25. Consequently, I find that there is a reasonable cause of action.
D CONCLUSION
26. The orders of the court are therefore as follows:
(1) The First, Second, Fourth, Fifth and Sixth Defendants Notice of Motion filed on 16 June 2020 is refused; and
(2) Costs of the application is costs in the cause; and
(3) Time is abridged.
D.F.W Lawyers: Lawyers for the First, Second, Fourth, Fifth and Sixth Defendants
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