Legal Index: R
Representative proceedings and res judicata — what a plaintiff suing on behalf of others must establish, and a live Supreme Court division over whether a decided issue ends the second case at once.
Representative proceedings
Papua New Guinea has no class-action statute. Group claims are brought under the representative provisions of Order 5 of the National Court Rules 1983, and the requirements are strictly applied.
Malewo v Faulkner [2009] PGSC 3; SC960 (Supreme Court)
An appeal against the dismissal of a claim brought for a group said to number about 13,000 individuals. Every ground failed, the appellants having shown no significant error of law. The Supreme Court held that the primary judge had properly ruled that:
(1) the appellants had used an originating summons when the proper mode of commencement was a writ of summons;
(2) the plaintiffs were not properly identified and had failed to disclose their authority to represent the other people on whose behalf they purported to sue;
(3) the originating summons disclosed no reasonable cause of action; and
(4) the proceedings were frivolous, vexatious and an abuse of process.
The appeal was dismissed and — a point worth noting — the appellants’ lawyers were ordered to pay the respondents’ costs.
Laki v Alaluku [2000] PGNC 96; [2000] PNGLR 392; N2001 (National Court) — cited in Malewo, and the clearest statement of the pleading problem in a multi-party claim.
The Court held it is the duty of the plaintiffs under Order 8 Rule 29 to give the necessary particulars of their claims to each defendant, and that this is a mandatory requirement. Each plaintiff must plead with sufficient particularity the claim made against each defendant. The plaintiffs had not done so; their pleadings were inadequate, too general, and in breach of Order 8 Rule 29, and they could not obtain default judgment on them.
The Court added that the power to enter default judgment is discretionary — it may be granted or refused — and declined to exercise it in their favour.
These decisions between them explain why large representative claims in Papua New Guinea so often end without a hearing on the merits.
Name the plaintiffs. A schedule of names is required; “and others” is not a party.
Prove the authority. Each represented person must have authorised the proceeding, and that authority must be capable of being demonstrated to the court — not merely asserted by the lawyer or by a leader speaking for the group.
Choose the right originating process. A claim involving substantial disputes of fact belongs in a writ, not an originating summons. See writ or originating summons.
Plead each claim against each defendant. Laki makes this a mandatory requirement, not a matter of style. A pleading that asserts a global wrong against a group of defendants, without particularising who did what to whom, is vulnerable.
The costs risk can fall on the lawyers. Malewo is a standing reminder of that.
See what a representative proceeding is, who can be a party and what a pleading must contain. On the abuse of process ground, see Legal Index: A.
Res judicata
When a matter has already been decided, and whether that is a reason to stop the second proceeding at once or a defence to be pleaded and tried.
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (Supreme Court)
The doctrine of res judicata operates when the issues between the parties have already been finally determined by a court or tribunal having lawful authority to do so.
The Court coupled that with the related abuse-of-process principle: a party who commences a multiplicity of proceedings concerning the same issues commits an abuse of process unless very good reasons are shown to justify it.
Kirriwom and Cannings JJ held that the National Court had correctly found Telikom guilty of an abuse of process and that res judicata applied; those grounds of appeal were dismissed, and because there were good grounds for dismissing the National Court proceedings, the appeal was dismissed.
Injia DCJ, dissenting — the doctrine of res judicata is a substantive and complete defence to an action, which must be pleaded and tried.
On that approach it is not a basis for summarily terminating a proceeding on an interlocutory application. His Honour would have allowed the appeal, quashed the decision of the National Court, and reinstated the proceedings.
The division is practical and unresolved. On the majority view a defendant may raise res judicata on a motion to dismiss; on the Deputy Chief Justice’s view it belongs in the defence and is determined at trial on evidence. A party met with a dismissal application founded on res judicata should read the dissent, and a party bringing one should be ready for it.
Injia DCJ, Kirriwom and Cannings JJ were unanimous that the National Court had erred in holding that Telikom was required to proceed under Order 16, because Telikom sought only declarations and injunctions. That ground of appeal was upheld.
See Legal Index: A on abuse of process and Legal Index: J on the choice between Order 4 and Order 16.