Frivolous filings and vexatious litigation

“PEOPLE OF POWER AND AUTHORITY must not use the Courts and the system to delay justice. People of power and wealth must not use the Courts as a means to hide behind the letters of the law and pretend that s/he can run away from the truth”. These words of admonition come from a self-described “Nationalist” who wrote into The National newspaper (24/10/08) from the Kagua-Erave area in the Southern Highlands Province of PNG.

The “Nationalist” was commenting on three theories of conspiracy that gained currency in Hagen recently following the burning of the famous Kapal Haus which houses the provincial government headquarters of the Western Highlands Province. The Kapal Haus was burnt down on the night of Tuesday (21/10/08). The cause of the fire is yet unknown and experts are seeking to establish the cause while security guards are being questioned for possible clues. Further details about this inferno can be found on The National (21/10/08). The belief that arsonists were at work to destroy this architectural landmark has fueled various theories of malicious intent and ill motivation which meant that the rumour mill in Hagen underwent an overload in the production and circulation of conspiracies.

What is captivating about the editorial letter is the theoretical connection the “Nationalist” of Kagua-Erave left implicit about the fire and the abuse of Court process. It seem as though the Court system could become clogged with frivolous filings and vexatious litigation so that it could go up in flames much like the Kapal Haus. This is not an overdrawn analogy. The two men who have been seeking the province’s highest political office have been battling an extended court case which ensue from a previous court of disputed returns after the last election in 2007 which saw the current incumbent Governor, Tom Olga’s election nullified. Governor Olga had defeated his renown predecessor, Paias Wingti, who contested the election in Court leading to the extended litigation process. One of the theories behind the Kapal inferno is that elements aligned with either of these two leaders could have been responsible for setting fire on the building. This is said here to only explain the analogy and not the relative merits of the extended court case let alone the suspicions or the true cause of the fire.

The “Nationalist” used the conspiracy theories as a pretext to comment on a trend in Papua New Guinea where people of power and wealth are using the Court system to avoid prosecution. No doubt every person has the right to access the Court to seek address and get redress, to secure defence and find protection, to prosecute the guilty or liberate the innocent; to obtain remedy or to harness restoration; to sanction truth or to enforce justice etc. Whatever it is, possessing or bearing the very right to elicit the attention and time of the Court introduces a moral dillema because of the fact that this very right can also help to deny and delay justice through the technique of prolonged and excessive litigation. The point is that possessing such a right does not mean it automatically sanctions a moral imperative for instituting legal action. 

The Prime Minister, Sir Michael Somare, for instance, has been going at lengths now to avoid being investigated by the Ombudsman Commission for allegations of breaching the leadership code. That case is currently in the Court and the Ombudsman Commission has been seeking to strike out the case on grounds that the weight of repetitive litigation is now amounting to an abuse of Court process and privilege. When the Julian Moti saga was investigated by a Commission of Inquiry, various court proceedings were instituted to either prolong and illegalise the establishment of the inquiry and even to annul the findings and conclusions of the inquiry. In the current Commission of Inquiry into allegations of mismanagement in the Finance Department, several legal hiccups have now been engineered to achieve similar objectives.

Frivolous filings and vexatious litigation is proving burdensome and will clog the capacity of the Court system to administer and deliver legal decisions in a timely manner. Ultimately it means that any move that works to delay justice is committed also to the object of denying justice. At the same time law firms are making a lot of money from people of power and wealth who could afford to bring their cases to the Court under such circumstances. Receiving hefty legal fees from the wealthy and powerful cannot mean that the right to seek legal address override the merits of a case at end. Lawyers and vexatious litigants should not routinely and habitually abuse the Court system for the sake of personal gain. The overload of cases the Court has been experiencing means that it is high time now that stringent legislative measures are enacted to curb vexatious litigation and frivolous conduct by litigants and law years alike.