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Kotape v McConnell Dowell Construction PNG Ltd [2015] PGNC 295; N6505 (12 January 2015)

N6505

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS No. 1196 OF 2013


BETWEEN:
JOHN KOTAPE and members of IMINI clan, HETABE KIAMBE, OLABE KAMBE and members of his PEPE clan, URULU HATAPI (Cr) and members of his PARUKA clan and 434 other clan members residents of the Tumbi Quarry landslide disaster area whose name and particulars all appear in Schedule 1 attached to this Writ all acting for themselves
Plaintiffs


AND:
McCONNELL DOWELL CONSTRUCTION PNG LIMITED (Company No. 1-12873) trading as MCJV under PNG LNG Project EPC 5B Contract for Komo Airfield
First Defendant


AND:
Consolidated Contractors PNG Company Limited (Company No. 1-70137) trading as MCJV under PNG LNG Project EPC 5B Contract for Komo Airfield
Second Defendant


AND:
PETER GRAHAM, Managing Director ESSO HIGHLANDS LIMITED
Third Defendant


AND:
ESSO HIGHLANDS LIMITED
Fourth Defendant


Waigani: Hartshorn, J
2014: 20th February
2015: 12thJanuary


Application to Dismiss Proceeding


Cases Cited:


Dengo v. Tzen Niugini (2011) N5043
Don Polye v. Jimson Papaki (2000) SC637
Golpak v. Alongkrea Kali & Ors [1993] PNGLR 491
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N3050
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107
Rex Paki v. MVIL (2010) SC1015
Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
State v. Peter Painke [1976] PNGLR 210
State v. Tom Watinga [1994] PNGLR 255
Tampion v. Anderson [1973] VicRp 32; [1973] VR 321
Tender Wak v. John Wia (2008) N3356
Thomas Taiya Ambi v. Exxon Mobil Ltd (2012) N4844


Counsel:


Mr. R. Mai, for the Plaintiffs
Mr. R. Mulina, for the First and Second Defendants
Mr. I. R. Molloy and Mr. A. Mana, for the Third and Fourth Defendants


12th January, 2015


1. HARTSHORN J: This is an application to amongst others dismiss the proceeding pursuant to Order 12 Rule 40 (1) (a), (b) or (c) National Court Rules and/or s. 155 (4) Constitution. It is made by the third and fourth defendants and is supported by the first and second defendants. The application is opposed by the plaintiffs.


Background


2. The plaintiffs sue the defendants in respect of the loss and damage they allegedly suffered as a result of a landslide that occurred on 24th January 2012. The landslide occurred at an area now known as the Tumbi Quarry Landslide Disaster Area which the plaintiff's claim is their property.


3. The proceeding is sought to be dismissed on a number of grounds. The first ground that I shall consider is whether the substantive claim of the plaintiffs raises a dispute concerning the ownership of customary land and if so whether this court has jurisdiction to determine such a dispute.


4. If this court does not have jurisdiction, then the proceeding would be bound to fail if prosecuted. Such a claim would be frivolous, vexatious and an abuse of the process of the court: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N3050, Tampion v. Anderson [1973] VicRp 32; [1973] VR 321, Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107, Thomas Taiya Ambi v. Exxon Mobil Ltd (2012) N4844.


5. The third and fourth defendants submit that a substantial majority of the plaintiffs’ claims appear to be based on allegations that they are the customary owners of the landslide affected area. An example of this is in paragraph 19 of the statement of claim in which it is pleaded amongst others, that the plaintiffs claim the losses sought to be recovered on the basis that they “have lived and benefit[ed] from the Tumbi Quarry landslide disaster area for generations according to the Huli customary land tenure system”. The losses claimed include limestone and forest losses, the rights to recover which must be based on ownership interests in the landslide affected area.


6. Further, the importance of customary land ownership in the claims of the plaintiffs, and that the status of customary land ownership for the subject area is unresolved is evidenced in the affidavits of various deponents upon which the plaintiffs rely. Numerous affidavits contain a statement substantially similar to the following:


“I refute the claim by so called Paramount Chief Stanis Talu from the Ware clan that I am not a land beneficiary to the Tumbi Quarry mine......”


7. The third and fourth defendants have adduced evidence that at least some of the plaintiffs do not have any connection to or interests in the area affected by the landslide and they therefore dispute that the plaintiffs are entitled to claim damages based on their alleged customary ownership of the landslide affected area.


8. The third and fourth defendants submit that it is well established that the National Court has no jurisdiction to deal with issues relating to ownership or title to customary land or to an interest in customary land. Disputes concerning customary land ownership must be determined by Local Land Courts: Louis Lucian Siu v. Wasime Land Group Incorporated (supra) at [26]-[33]; Land Disputes Settlement Act (Ch. 45).


9. Further, submit the third and fourth defendants, National Court proceedings have previously been dismissed as an abuse of process where plaintiffs’ customary ownership rights had not been determined by a Local Land Court: Ronny Wabia v. BP Exploration Operating Co (supra) and Thomas Taiya Ambi v. Exxon Mobil [2012] N 4844.


10. Moreover, the Supreme Court unanimously stated in Siu v. Wasime Land Group Inc (supra) that:


“31. .............His Honour the learned Judge erred in law when he did not dismiss the entire proceedings for want of jurisdiction..........There were sufficient evidentiary materials before the National Court which showed that this was really a dispute over monetary and other financial benefits and interests arising from the control, use and ownership of customary lands.


32. The person or persons who are declared as the customary owners of this land will have the ultimate control over how financial and other monetary benefits are to be distributed. Hence ultimately the dispute was not only about ownership of customary land per se but also a dispute over interests in customary land.”


11. Counsel for the plaintiffs submitted that the evidence of Chief Stanis Talu, filed on behalf of the third and fourth defendants, that amongst others, many of the plaintiffs do not have any connection to or interests in the area affected by the landslide, is disputed by the plaintiffs. Further, the plaintiffs do not recognise Chief Stanis Talu as their Chief. To them, he is merely an individual. He is also not a party to the proceeding. Further, the plaintiffs are exercising their common law rights in bringing the proceeding. Their claim is not concerned with ownership of customary land.


12. From the evidence of Chief Stanis Talu, he deposes amongst others that he is the Paramount Chief of the Ware clan and that the Ware clan owns the customary land upon which the Tumbi Quarry was located and its immediate surrounding areas. That 73 deponents of affidavits filed on behalf of the plaintiffs dispute the evidence of Chief Stanis Talu as to their not being land beneficiaries to the Tumbi Quarry mine, indicates that there is a dispute concerning ownership of the subject customary land.


13. That Chief Stanis Talu is not a party to the proceeding does not affect his evidence and does not detract from there being a dispute concerning ownership of the subject customary land.


14. From the evidence relied upon by the plaintiffs and the third and fourth defendants, I am satisfied that a dispute does exist as to the ownership of the subject customary land. It is the case that the plaintiffs’ are not seeking any relief in their statement of claim as to any entitlement that they may have to the subject land. But before their claims for loss and damage that are based on their alleged customary land ownership, can be determined, their customary land ownership entitlement must be determined. This court does not have the jurisdiction to determine ownership of customary land. I make reference in this regard to the following authority: Golpak v. Alongkrea Kali & Ors [1993] PNGLR 491, Ronny Wabia v. BP Petroleum (supra), Siu v. Wasime Land Group (supra), Tender Wak v. John Wia (2008) N3356 and Ambi v. Exxon Mobil (supra).


15. I agree with the submissions of the third and fourth defendants as to the lack of requisite jurisdiction of this court and so if this proceeding were to proceed, it would be bound to fail. Consequently, it should be dismissed as being frivolous, vexatious and an abuse of process.


16. A further ground relied upon for the dismissal of the proceeding as an abuse of process is that many of the named plaintiffs do not exist, ought not to have been named as plaintiffs and the claims pleaded are fictitious.


17. The fourth defendant submits that in May to November 2012, Chief Stanis Talu, who is the leader of the Ware clan, including the sub-clans Halia, Mabulu, Hambua, Pina, Warabia, Yagiria, Hagoya, Warila, Ekali, Tabale, Pari, Ne, Tombe, Wabiako, Kaliako, Jakora, Tugabako, Hora and Pini, of the Tumbi area, retained a lawyer in regard to matters relating to the landslide. The lawyer foreshadowed a potential group compensation claim against the fourth defendant and certain contractors including the first and second defendants in respect of the landslide (Talu claims). The potential claimants comprised:


  1. the beneficiaries of persons who had died in the landslide;
  2. persons who claimed to require resettlement because of the landslide;
  1. persons with other claims said to arise from the landslide, including property damage claims.

18. As a result of a rigorous process of identification and authentication involving Paramount Chief Stanis Talu and his lawyer, as well as the fourth defendant's legal representatives Allens and an accounting firm, 132 potential claimants were identified (Talu claimants).


19. Whilst the fourth defendant maintained that good defences to the Talu claims were available and denied liability to the Talu claimants, the fourth defendant and other parties, including its co-venturers and contractors, entered into confidential settlements with each of the Talu claimants (Talu settlements). The Talu settlements were entered into without any admissions of liability and in consideration of the Talu claimants granting the fourth defendant, its co-venturers and contractors a full and final release from any potential liability arising out of the landslide.


20. The Talu settlements concluded all potential claims against the fourth defendant and others arising from the Tumbi landslide.


21. Despite the finality brought about by the Talu settlements, it is alleged in the statement of claim in this proceeding that there are 434 plaintiffs with claims against the defendants. Each of the plaintiffs is alleged to:


  1. be a resident and customary owner of the “Tumbi and Tumbiago villages now known as the Tumbi Landslide Disaster area”; and
  2. have suffered joint and individual losses described in paragraph 19 and schedule 1 of the statement of claim by reason of the allegedly wrongful conduct of the defendants.

22. Schedule 1 to the statement of claim provides “Particulars of Claimants & Loss and Damages”. In most cases, the claimed loss and damage is uniformly and generally described as “damage to properties livestock and cash crops” and is estimated at K200, 000.


23. 33 persons named as plaintiffs in schedule 1 of the statement of claim have sworn affidavits on behalf of the third and fourth defendants that he or she:


  1. have not instructed the lawyers who purport to represent the named plaintiffs, Robert Mai & Company Lawyers, to act for them;
  2. have not authorised the representative plaintiffs to represent them in the proceeding;
  1. do not have any of the claims made in the statement of claim or any other claim related to the subject matter of the statement of claim i.e. the Tumbi landslide, against any of the defendants; and
  1. is aware that numerous of the named plaintiffs do not exist or do not have any connection to, or interests in, the area affected by the landslide and, as a result, have not suffered loss and damage which it is alleged they suffered.

24. It follows submit the third and fourth defendants, that, at least, numerous of the alleged plaintiffs should not have been named as plaintiffs to this proceeding by Robert Mai & Company Lawyers and the pleaded claims of those parties are fictitious.


25. The evidence of a further seven deponents who are prominent Chiefs, senior leaders and/or senior family members in the Tumbi area and the evidence of Paramount Chief Stanis Talu supports the evidence given by the 33 deponents referred to above and supports the conclusions that:


  1. the actual number of purported plaintiffs, noting mis-numbering and duplications, is far less than the stated number of 434;
  2. of the above number, a large number of plaintiffs have not given authorities in relation to the claim;

c) there are a lot of ‘ghost’ names that have been included as plaintiffs;


  1. a further category of named plaintiffs are Tumbi villagers who did not lose anything in the landslide;
  1. another category of named plaintiffs are outsiders who have no connection with Tumbi and could not have lost anything in the landslide; and
  2. after having accounted for the above categories of named plaintiffs, the remaining named plaintiffs described in schedule 1 of the statement of claim are persons unknown to Paramount Chief Stanis Talu and the seven other prominent Chiefs, senior leaders and/or senior family members in the Tumbi area.

26. The third and fourth defendants further submit that the evidence of Paramount Chief Stanis Talu regarding the nature and extent of the claimed losses provides further support to this submission that the claims made in this proceeding have been fabricated as amongst others:


  1. the total number of crops, gardens, houses and domesticated livestock for which claims are being made would require a land area 10 to 20 times the land area affected by the landslide;
  2. a large group of named plaintiffs claim to have lost exactly 104 chickens, and another large group claim to have lost exactly 208 chickens when, according to Chief Talu’s knowledge, the number of chickens owned by those living in the affected area were not uniform and significantly less than the numbers claimed;
  1. similarly, a large number of plaintiffs claim to have suffered damage in the amount of K 200,000; and
  1. a common feature of the claims is the multiplication of identical claims by underage children, when a family should claim as one unit.

27. The third and fourth defendants have also adduced evidence which shows that the named plaintiffs in schedule 1 of the statement of claim include the names of Talu claimants who have already released the fourth defendant, its co-venturers and contractors from any liability arising out of the landslide and have not authorised the proceeding to be brought in their names, as well as including names that are fictitious.


28. In light of the evidence, the claims against the third and fourth defendants are, at least in large part, fictitious, submit the third and fourth defendants, both in terms of the identity of the plaintiffs and their alleged losses. The false premise upon which this proceeding is bought and this abuse of the process of this court is exacerbated by the statement made by the lawyers who purport to represent the named plaintiffs, Robert Mai & Company Lawyers, in paragraph 21 of the statement of claim, that each plaintiff has instructed and authorised that law firm to pursue this class action. This is not the case submit the third and fourth defendants.


29. By letter dated 31st January 2014, Robert Mai & Company Lawyers served affidavit material upon the third and fourth defendants. It was said to comprise ‘Affidavits in Response to the application to dismiss this case’. The 31st January 2014 covering letter included the statement that:


“We refer to the above [proceeding] and confirm our instruction to act for the respective plaintiffs.......”


30. This assertion appears to be intended to mean that each of the 434 named plaintiffs have authorised the proceeding to be brought in their names. The third and fourth defendants submit that the affidavits of the 73 deponents do not provide any support for that assertion as:


  1. there are only 73 deponents - the proceeding is bought in the names of 434 named plaintiffs;
  2. of the 73 deponents, only 18 are recognisable as named plaintiffs;
  1. the 55 deponents who are not identifiable as named plaintiffs are not parties to this proceeding, and the fact that they have purported to authorise Robert Mai & Company Lawyers to prosecute claims on their behalf against the fourth defendant, in the case of 51 of those components, by authorities which are dated 26th or 27th January 2014 and which post dates the filing of the statement of claim, has no bearing on the present application.

31. Robert Mai & Company Lawyers’ letter also states in relation to the evidence that the third and fourth defendants obtained from the plaintiffs, being 33 deponents named as plaintiffs in schedule 1 of the statement of claim that:


“Most of the deponents are illiterate villagers and were not properly interpreted the contents of the affidavit documents and were very surprised. There was no proper translation and interpretation no record of interview was conducted before signing the standard affidavits. Some were even misled to believe that by signing the paper they will be paid compensation soon.”


32. These allegations are denied by the third and fourth defendants and are contradicted by the evidence of Allan Mana, Chief Stanis Talu, Alexander Davani, Fiona Pagla and Lawrence Billy. They all depose as to the process by which evidence was obtained in support of the present application.


33. Further, two of the 33 deponents, Nogole Piwago and Olabe Kembe, are parties to Talu settlements and have granted the fourth defendant, its co-venturers and contractors a full and final release from any potential liability arising out of the landslide.


34. Consequently, the evidence of the 33 deponents does not detract from the evidence relied on by the fourth defendant in support of its motion. Rather, that evidence supports the conclusion that the claims against the third and fourth defendants, are at least in large part, fictitious, both in terms of the identity of the plaintiffs and their alleged losses.


35. For these reasons, the third and fourth defendants submit that amongst others the proceeding should be dismissed generally as an abuse of process of the court.


36. Counsel for the plaintiff submits amongst others that:


  1. any reference to a Deed of Release with the claimants should not be given any weight as a copy of the Deed was not annexed to Mr. Mana’s affidavit;
  2. no evidence of payments made have been given;
  1. the evidence of Thomas Ninkama and part of Mr. Mana’s evidence is hearsay and should be given little weight;
  1. the 434 plaintiffs have not benefited from any settlement and may bring their own individual claims;
  2. the matter cannot be frivolous or vexatious if the third and fourth defendants admit to settling a similar case;
  3. the Tumbi quarry landslide disaster report confirms liability on the part of the defendants;
  4. Stanis Talu does not bind the plaintiffs, he is not a party or an employee of the defendants and therefore does not have authority to give evidence;
  5. the other affidavits filed on behalf of the third and fourth defendants were not properly interpreted to the deponents and they were forced to sign;
  6. some of the witnesses had given conflicting evidence;
  7. the defendants have not provided an independent report concerning the landslide.

37. As to the evidence of Chief Stanis Talu, the plaintiffs submit that it should be rejected as he is not their chief, he does not represent them, is not a party to the proceeding and is not an employee of the defendants. There are however seven deponents who are prominent Chiefs, senior leaders and/or senior family members in the Tumbi area, who have given evidence that they agree with Chief Stanis Talu’s evidence as to the pre-landslide infrastructure of Tumbi village, that he is Paramount Chief of the Tumbi villages and as to his comments concerning the plaintiffs. Further, Chief Stanis Talu has also given evidence, again supported by others, as to the process by which evidence from other deponents was obtained. The fact that he is not an employee of the defendants and is not a party, to my mind does not detract from his evidence, rather it could be said that it adds to its weight.


38. The plaintiffs have not specifically addressed the evidence of the 33 deponents who are named plaintiffs and the seven prominent Chiefs, senior leaders and/or senior family members in the Tumbi area, apart from submitting that there affidavits were not interpreted correctly and they were forced to sign. In this regard I am inclined to prefer the evidence of Messrs Mana, Talu, Davani, Billy and Ms Pagla as to how the evidence was obtained.


39. The plaintiffs have also not addressed:


  1. that in most cases the claimed loss and damage in schedule 1 to the statement of claim is generally described as the same and is for the same amount;
  2. That 33 persons named as plaintiffs had deposed that they have not instructed Robert Mai & Company Lawyers to act for them, have not authorised the representative plaintiffs to represent them, do not have any of the claims made in the statement of claim or any other claims concerning the Tumbi landslide against any of the defendants, that they are aware that numerous of the named plaintiffs do not exist, or do not have any connection to, or interests in the area affected by the landslide and have not suffered the loss and damage alleged.

40. Further, the submissions of the plaintiffs, even if they have merit, do not address the above points.


41. Given the above, this court is entitled to conclude that many of the named plaintiffs do not exist, should not have been named as plaintiffs and that the claims made in the statement of claim are fictitious.


42. The National Court has express power under Order 12 Rule 40 National Court Rules, and inherent power as a superior court of record established by the Constitution, to prevent abuse of the court process: State v. Peter Painke [1976] PNGLR 210. Abuse of process means any use of the process or procedures of the court for an improper purpose or in an improper way: Painke (supra); State v. Tom Watinga [1994] PNGLR 255, and includes claims that are oppressive, frivolous or vexatious: Ronny Wabia v. BP Exploration Operating Co (supra), Don Polye v. Jimson Papaki (2000) SC637.


43. A proceeding is frivolous if it does not merit serious attention, is manifestly futile, discloses no reasonable cause of action, or is otherwise unsustainable: Wabia (supra), Siu v. Wasime (supra), Dengo v. Tzen Niugini (2011) N5043. A proceeding is vexatious if a defendant is put to the trouble and expense of defending claims that are a ‘mere sham’ or are incapable of succeeding: Wabia (supra), Siu v. Wasime (supra), Dengo v. Tzen Niugini (supra).


44. I am satisfied that this proceeding is frivolous as it is unsustainable and vexatious as it is a mere sham and is an abuse of process of the court for the reasons given.


45. Given the above it is not necessary to consider the other submissions of counsel apart from the question of costs.


46. As to costs, the third and fourth defendants seek costs of and incidental to the proceeding on an indemnity (solicitor and client) basis against the plaintiffs and or Robert Mai & Company Lawyers. In support of this, they rely upon a letter dated 16th December 2013, a copy of which is in evidence, that invites Robert Mai & Company Lawyers, the lawyers for the plaintiffs to discontinue the proceeding as amongst others, this court does not have jurisdiction in respect of customary land disputes and that the proceeding is frivolous or vexatious and an abuse of process of the court. The letter also puts Robert Mai & Company Lawyers on notice that costs on an indemnity basis would be sought upon a successful application to dismiss.


47. In Rex Paki v. MVIL (2010) SC1015, the Supreme Court, of which I was a member, held that:


“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”


48. One of the reasons that this proceeding is being dismissed is straightforward - the court does not have the requisite jurisdiction. There have been numerous reported cases on this point. It is not as though this point has not been considered by the court before. The other reason is that the proceeding is frivolous as it is unsustainable and vexatious as it is a mere sham and is an abuse of process of the court. The lawyers for the plaintiffs are responsible for commencing and prosecuting this proceeding in such a manner.


49. Further, the lawyers for the plaintiffs were informed of the particular points, invited to discontinue and were put on notice that indemnity costs would be sought. If the lawyers for the plaintiffs had taken heed of this information and further, given sufficient consideration to the points after they had been put on notice, this application would not have been necessary. Consequently, I am satisfied that the conduct of the plaintiffs by their lawyers caused the defendants to incur unnecessary costs.


50. I am further of the view that in all of the circumstances and particularly as it would appear that many of the plaintiffs have not authorized Robert Mai & Company Lawyers to act for them in this proceeding, it would be just and appropriate for Robert Mai & Company Lawyers to indemnify the third and fourth defendants for their costs of this proceeding and to pay the costs of the other defendants on a party party basis.


Orders


51.


  1. This proceeding is dismissed.
  2. Robert Mai & Company Lawyers shall pay the costs of the third and fourth defendants of and incidental to the proceeding on a solicitor and client basis.
  1. Robert Mai & Company Lawyers shall pay the costs of the first and second defendants of and incidental to the proceeding on a party party basis.
  1. Time is abridged.

_____________________________________________________________
Robert Mai & Company Lawyers: Lawyers for the Plaintiffs
Defendants Leahy Lewin Nutley Sullivan Lawyers: Lawyers for the First and Second Defendants
Allens Lawyers: Lawyers for the Third and Fourth Defendants


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