N4674

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1348 OF 2008

BETWEEN:

WILFRED MAMKUNI & 80 OTHERS
Plaintiffs

AND:

MR. LY CUONG-LONG
First Defendant

AND:

JANT LIMITED
Second Defendant

AND:

GOGOL REFORESTATION COMPANY PTY LTD
Third Defendant

Madang: Batari, J
2011 : 11 June

CIVIL LAW - PRACTICE & PROCEDURE – civil suit for unpaid entitlements by class representation – party as plaintiff – representative claim – authority to represent - consent of to be joined as plaintiff – Order 5 r 13 National Court Rules – application of - evidence of authority to be in writing and filed – failure to show evidence of authority will render cause incompetent and dismissal or striking out of proceedings – cause - pleading of - whether pleadings disclose reasonable cause of action - defence – filing of out of time – consent – whether defence filed with consent.

Cases Cited:

Simon Mali v The State [2002] SC 290
Eliakim Laki and 167 Ors v. Maurice Alaluku & Ors [2002] N 2001
Tigam Malewo v. Keith Faulkner [2009] SC 960
PNG Forest Products Pty Ltd & Anor v The State & Anor [1992] PNGLR 85
Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915)
Eliakim Laki & Ors v Maurice Alaluku & Ors. (2002) N2001
Kiee Toap v The State (2004) N273

Counsel:

W. Akuani, for the Plaintiffs
R. Mann-Rai, for the Defendants

11 June, 2011

BATARI, J: The principal application by the defendants here is to dismiss the plaintiffs' claims for disclosing no reasonable cause of action and/or for being an abuse of the Court process. Order 8 r.27 and O.12 r.40 of the National Court Rules (the NCR) are cited as the jurisdictional basis for that contention. The defendants also challenges the competence of the proceedings on the issue of representative capacity of the principal plaintiff pursuant to O.5 r.8(2) of the NCR.

2.	In the alternative, defendants are seeking the setting aside of the current Interim Orders against eviction of the plaintiffs and that they have leave to file their defence out of time pursuant to O.1 r.15(1)(2). I will deal with the issues of want of representative capacity first as in my view, it is a pivotal issue on the whole of the proceedings. 

Issue of Representative Capacity

3.	This action is filed by Wilfred Mamkuni "for himself and 80 others." Mr. Mann-Rai of Counsel for the defendants takes issue with such general reference and submits that, representative actions of this nature must bear endorsement on the Writ, consent of the plaintiff to act as the plaintiff or show authority to the principal plaintiff to act on his or her behalf. In this case, the principal plaintiff has filed this proceeding without proof of his representative capacity. Counsel submits that, there is prima facie, no evidence of Mamkuni's representative capacity endorsed on the Writ and argues, the omission to clearly name and identify the 80 persons he purportedly represents and the failure to apply to have each and everyone of the intended plaintiff join him as the plaintiff breaches O.5 r.8 (2) of the NCR. Mr Mann-Rai relies on the case of Simon Mali v. The State (2002) SC 290 (Hinchliffe, J, Sakora, J and Batari, J) in support of his submission to strike out the proceedings.

4.	Mr Akuani of Counsel for the plaintiffs submitted that, the defendants' application under O.5 r.8 (2) of the NCR is inapplicable and misconceived. Counsel submitted that the plaintiffs are already parties to this proceeding so, it is erroneous and unreasonable to require each plaintiff to apply to join as a plaintiff. 

5.	Plaintiff's Counsel did not specifically and directly address the serious issue of jurisdiction raised and the implications of Simon Mali's case in a representative class action. I do however note from the file, Affidavits from individuals purporting to give consent and authority to the principal plaintiff, Wilfred Mamkuni to act on his or her behalf. 

Ruling 

6.	This case is filed as a representative claim. This is apparent from the representative title given to Wilfred Mamkuni as, "for himself and 80 others." The body of the Statement of Claim also lists in paragraphs 10.1 to 10.10 and 12.11 to 12.81, those persons for and on behalf of whom Wilfred Mamkuni purportedly represents. 

7.	For multiple party actions, O 5 r 8 (2) of the NCR applies to joinder of parties generally. The applicable Rule for class actions of which this case is one, is O.5 r.13 (1) which states:

"(1)	Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them." (emphasis mine)

8.	The phrase, "commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all", in my view clearly implies discretion to allow a personal representative of the plaintiffs provided that all intended plaintiffs in the action or proceeding of a representative nature are individually named in the originating process and that the plaintiff must show evidence of specific instructions for that representative capacity. The procedural requirements for commencement of proceedings in a representative capacity was recently summarised by the Supreme Court in Tigam Malewo v Keith Faulkner (2009) (Batari J Mogish J Cannings J) SC960:

•	all intended plaintiffs must be named in the originating process;
•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
•	any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative. 

9.	The rationale is set out in the case of Simon Mali:

"… in all actions or proceedings of a representative nature, all the intended plaintiffs' must be named and duly identified in the originating process, be it writ of summons, originating summons or statement of claim endorsed on a writ. In this respect, pursuant to the rules each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this one being where costs of the litigation are concerned, if awarded against the plaintiff. Some of the problems or consequences in a representative action are anticipated in various sub-rules under O. 5 r. 13 of the NCR." 

10.	In this case, all intended plaintiffs are not named in the Writ of Summons as plaintiffs. They are only named in the body of the Statement of Claim in asserting their losses. That is not sufficient compliance with the procedural requirement in O. 5 r. 13 of the NCR that they must be named individually as plaintiffs. The omission would have been cured by application under O. 5 r. 2 to join them as parties as Mr Mann-Rai submitted. 

11.	The originating process is also defective in that there is no evidence of each and every intended plaintiff giving specific instructions (evidenced in writing) to their lawyers to act for them. This is the requirement stated by the Supreme Court in Simon Mali's case and affirmed in Malewo v Keith Faulkner. Furthermore and as the third omission, the principal plaintiff Wilfred Mamkuni in whose name proceedings were commenced has not produced evidence of his authority to file this proceeding as a class representative.

12.	In making this third observation, I am mindful of the existence of some 80 or so affidavits filed by individuals in purported compliance with the procedural requirement for representative capacity. I have some difficulty relying on the authenticity of those affidavits, the reason being that, counsel for the intended plaintiffs does not rely on them. Mr. Akuani did not articulate or defend the affidavits and the purpose they serve when this was clearly raised in the defendants' application. Counsel had the opportunity to response to the defendants' application and chose to ignore it. It may be safely assumed that he does not rely on them. 

13.	Furthermore, some of the affidavits pre-dated the date of the Writ by 2 days. They were dated 17 November 2008. The Writ was filed on 19 November 2008. For some inexplicable reason, the affidavits were not filed until April 2009. Other affidavits of purported authority were filed in the same month (April 2009) and in the month of May, 2009. The filings were coincidentally done after the issue of representative capacity of the principal plaintiff was raised. Hence, this leaves a strong suspicion of the affidavits of purported authority for Wilfred Mamkuni's representative capacity being manufactured. 

14.	The onus is on Wilfred Mamkuni to show satisfactory compliance with the procedural requirement for representation in a class action. I have considered whether the pleading of each of the other plaintiffs in paragraphs 10.1 to 10.10 and 12.11 to 12.81 of the Statement of Claim is sufficient statement of consent. It is clearly not. Those paragraphs merely identify each plaintiff and plead the damages he or she claims. They do not comply with the procedural requirement under O.5 r.13 for representative actions. I am also for the reasons I have set out, not satisfied the affidavits of purported authority amount to satisfactory compliance with the requirements for representative actions. The defendants' application succeeds on that basis.

15.	In view of the conclusion I have reached, it is unnecessary to consider the other grounds. However for completeness, I have also considered whether the pleadings show reasonable cause of action. 

Issue of reasonable cause of action

16.	It is trite law that the plaintiff should not be driven from the judgment seat unless the case is incontrovertibly hopeless; it is unsustainable on both questions of facts and law. This principle applies where the cause of action is obviously and almost incontestably bad: PNG Forest Products Pty Ltd & Anor. v The State & Anor [1992] PNGLR 85. 

17.	In Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915) the Court proposed that a statement of claim should be struck out if it is so ambiguous or lacking in particularity that would enable the real issues to be identified. In other instances, a statement of claim will be struck out for showing no reasonable cause of action if it leaves a defendant guessing as to what the plaintiff's allegations are, (Eliakim Laki & Ors. v Maurice Alaluku & Ors. (2002) N2001) or where it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that it disclosed no cause of action. (Kiee Toap v The State (2004) N273).

18.	In this case I am of the view that the pleadings of the cause in paragraphs 7 and 8 of the Statement of Facts are too generic and vague. It falls into the category of lacking in particularity in that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified. Hence, the pleadings stand to be dismissed for showing no reasonable cause of action.

Issue of filing defence out of time

19.	I have also considered the defendants' application to file their defence out of time. The application is supported by Counsel's Affidavit filed on 4th June, 2009. A draft defence is attached to that affidavit. The application is also supported by the affidavits of Mr. Huang Wen Jang, Managing Director of the Second Defendant and Mr. Ly Cuong-Long, Director of the First Defendant.

20.	The relevant considerations in favour of the defendants' application is that, they filed the NOITD within the time required to file a Defence, their propose Defence have merits and that there is no undue delay in making the application.

21.	In the end, I would grant the application and allow the defendants leave to file their defence out of time.

Conclusion

22.	In summary, there are 81 individual employees who are claiming their legal rights and interests have been breached by the defendant employers. There may be some merits in their claims. But the pleading of the cause is so lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified. Unless the alleged breaches are particularised, their action stands to be dismissed.

23.	The application by the defendants succeeds on the basis of glaring procedural defect of lack of representative authority. Because of that defect, this action cannot be sustained. So that the intended plaintiffs have the opportunity to re-institute and re-plead their cause of action, the proper course in my view is to strike out this action as intended in the defendants' application.

24.	The Orders of the Court are that the proceedings be struck out for being filed in breach of O.5 r.13 of the NCR. The Restraining Orders of 7th April 2009 are discharged forthwith. Consequently, the defendants have liberty to evict the plaintiffs within fourteen (14) days.

25.	I order that costs follow the event to be taxed, if not agreed.

_____________________________________________________

William Akuani Lawyers: Lawyers for the Plaintiffs
Greg Manda Lawyers: Lawyers for the Defendants