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Aruaru v Noki [2009] PGNC 172; N3745 (23 October 2009)

N3745

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 84 OF 2007

BETWEEN:

PETER ARUARU & ORS
Plaintiffs/Respondents

AND:

HIS WORSHIP, BILL NOKI
First Defendant

AND:

MICHAEL KORAH
Second Defendant/Applicant

Waigani: Manuhu, J.
2009: 18 August
2009: 23 October

PRACTICE AND PROCEDURE – Review of Land Court decision - Application to dismiss – Abuse of process – Frivolous and vexatious – Undue delay.

Cases cited:

Jim Tapako v Puka Temu & Ors (2009) Unreported,
Kelly Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534.

Counsel:

L. Yandaken, for the Plaintiff/Respondents
D. Liosi, for the Second Defendant/Applicant

23rd October, 2009

1. MANUHU, J.: This is an application to dismiss the proceeding for want of prosecution, abuse of process, and frivolous and vexatious. The substantive proceeding is a judicial review of a decision of a Provincial Land Court.

2. As a customary land dispute, the matter had been through mediation, the Local Land Court, the Provincial Land Court, a review in the National which remitted the matter back to the Provincial Land Court presided by his Worship Bill Noki whose decision is the subject of the substantive review currently on foot. The Applicant argues that the second review on foot is an abuse of process because all the previous proceedings have been properly conducted and concluded.

3. This argument raises issues which are the subject of the substantive review. In the Provincial Land Court, Magistrate Noki made certain findings on the mediation, the approval of the mediation agreement, the conduct of the hearing before the Local Land Court, as well as the issue of delay.

4. Eventually, Magistrate Noki dismissed the Respondents’ appeal and confirmed the terms of the Local Land Court Order of 20th November 2001, thereby, awarding the land to the Applicants. The Respondents have filed this proceeding for the Court to review those findings. Clearly, therefore, the findings of the Land Court Magistrates are substantively before this Court and should not be considered in an application such as this.

5. It should also be noted that leave has been granted. By granting leave, the Court has determined that there is proper basis for reviewing the findings of Magistrate Noki and the other Land Court Magistrates. Thus, the application for review is not an abuse of process, and is frivolous or vexatious.

6. The only argument that appears meritorious is in relation to the question of delay. The Applicant argues that the Respondents have not prosecuted the review with due diligence. The Respondents say they have.

7. The Originating Summons was filed on 20 February 2007. Leave was granted on 3 April 2007. Notice of Motion pursuant to Order 16 Rule 5 (1) of the National Court Rules 1983 was filed on 23 April 2007. From the file notes, there were no appearances of all parties so the matter was adjourned generally. There were no appearances again on 16 July 2007.

8. On 26 July 2007, only Mr. Tanuvasa appeared for the Second Respondent. On 10 December 2007, no one appeared and the matter was taken off the list. On 14 April 2008, Mr. Yandaken appeared and the matter was adjourned to 5 May 2008 for Directions Hearing. Mr. Yandaken was directed to file a draft consent order before 5 May. The file does not have any notation for 5 May 2008.

9. The review book was filed on 15 July 2008, more than a year after grant of leave. In his letter of 20 August, 2008, Mr. Yandaken wrote to the Registrar requesting for the matter to be listed for directions hearing. The same request was made in a letter dated 29 September 2008. The same request was repeated in a letter dated 22 October 2008.

10. On 4 December 2008, Mr. Yandaken appeared and the matter was to be listed on 5 December 2008 for allocation of hearing date. On 5 December 2008, the matter was again deferred to 9 December 2008 for a hearing date to be given. On 9 December 2008, an interim stay, on application by the Respondents, was granted pending substantive application and the matter was adjourned to the Registry.

11. On 18 May 2009, Mr. Yandaken appeared and the matter was adjourned to 2 June 2009 for stay application hearing. On 2 June 2009, hearing of stay application was adjourned to 16 June 2009.

12. On 9 June 2009, Mr. Yandaken filed an application to have Gopera Investment Limited as a party to the proceeding.

13. On 16 June 2009, Mr. Yandaken and Mr. Liosi appeared and the matter was adjourned to 6 July 2009. On 6 July 2009, the matter was given a special fixture hearing date of 14 July 2009 for the stay application.

14. On 14 July 2009, Mr. Yandaken and Mr. Liosi appeared and the matter was further adjourned to 21 April 2009. On 21 April 2009, both lawyers appeared again and the matter was deferred to 13 August 2009. I presided over the matter on 13 August.

15. In the case of Jim Tapako v Puka Temu & Ors (2009) Unreported, the proceeding was dismissed for want of prosecution where after the proceeding was filed, leave and interim relief were granted 9 days later; notice of motion seeking substantive relief was filed 48 days from date of filing of proceeding; service of motion was filed 70 days from date of filing of substantive proceeding; and nothing was done for the subsequent 17 months.

16. In the case of Kelly Kerua v Council Appeal Committee of the University of Papua New Guinea (2004) N2534, Injia DCJ, as he then was, said this in relation to matters of this nature:

"A reasonable or practical timeframe is not infinite number of weeks or months ... I am speaking of a week or to a few weeks, and in exceptional cases a month or two at the most."

17. Undoubtedly, each case will be considered on its own merits.

18. In this case, before the filing of the review book, the Respondents failed to appear on 4 occasions. After the review book was filed, the Respondents obtained interim stay on 9 December 2008 pending substantive stay hearing. The substantive hearing has been pending since then. I fail to understand how an interim stay has been in force for more than 10 months and has essentially become a substantive stay.

19. The Respondents have also filed an application to join a corporate person as a party to a dispute over ownership of customary land. I fail to understand how a corporate person could have an interest in customary land ownership; and how it could be joined in a review application when it was not a party in the original proceedings which was determined under the Land Dispute Settlement Act.

20. Only parties to the land dispute or having customary interest in the land should be parties in the review. The application to join has only added to the delay in getting the stay application and the substantive review heard. It should not be forgotten that this dispute is before this Court for the second time. And the initial dispute has been through the formal process for the last 10 years.

21. In all the circumstances, I am satisfied that the progress of this matter is being affected by undue delay as a result of non appearances, failure to secure hearing dates for the pending applications, including one that is unnecessary, and the ultimate consequential failure to have the (second) review heard. Accordingly, it is appropriate to dismiss the proceeding and I do so for want of prosecution and for abuse of process. Cost follows the event.

_________________________________________

Yandaken Lawyers: Lawyer for the Applicant
Daniel Liosi Lawyers: Lawyer for the Respondent