N6471
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 OS No. 181 OF 2015

BETWEEN: 

TIMBI BARR
Plaintiff
 
AND:
JAMES POLI 
First Defendant

AND:
RAIM KUNJIL, PUT MAKRUPA, MARCUS PUP & PETER POTI 
Second Defendants

AND:
PAUL AKEL  
Third Defendant

Mt Hagen:   Poole, J
2016: 17th August 

PNG Cases Cited:
Albright Limited v Mekio Interland Holdings Limited (N5774), 
Macoes (PNG) Limited v Allan Kundi (2012) (N 4621)
PNG Deep Sea Fishing Limited v Like Critten (SC1126). 	
Telikom PNG v ICCC (N3144) 

Overseas Cases Cited: 
Port of Melbourne Authority v Anshun Propriety Limited (147 CLR 589)

Counsel:
Mr C Joseph, for the Plaintiff
Mr Ben, for the Defendants

17th August, 2016

Background Facts

1.	POOLE J:	The Plaintiffs are members of the Kukulika Tribe of Mt Hagen and the First Defendants are members of the Malakamp’s Sub-Clan of the Jiga tribe, also of Mt Hagen. The Second Defendants are the Local Land mediators at Mt Hagen and the Third Defendant, at the institution of the proceedings, was a Magistrate at Mt Hagen in the Local Land Court. The First Defendants and Plaintiffs are customary land owners of parcels of land which are adjacent to each other and the location of the boundary is the source of a very long-running dispute. This land, also, is here at Mt Hagen.

2.	In 1990 this dispute was eventually the subject of a ruling by the Local Land Court at Mt Hagen which ruled, relevant for the present purposes, as follows:
•	“That by a majority decision, the historical and original ownership of the said Lalinga Land does belong to the Keme Kukulika Tribes and not the Jiga Malakamp’s sub-clan.
However;
•	Because of the long, long years of both the Jiga Malakamp’s subclan and the Keme Kukulika Tribes….having been in co-existence or living together prior to the differences towards the late 1980’s over the original ownership of the said Lalinga Land, and; on the principles of natural justice, this Court again by majority decision ruled that the Land Lalinga be equally/fairly allocated to the respective Subclan and Tribe.”
3.	No action was taken by either party to appeal from this decision to the 
Provincial Land Court within the three (3) month period set out for the appeals by s.54(1) of the Land Disputes Settlement Act, nor to seek to have the Provincial Land Court extend the term within 12 months of the decision, as permitted by s.54 (1) of the Act.

4.	It is clear, however, that the Plaintiffs, at least were not content with the ruling. In 2001, eleven (11) years after the decision, they applied to the Local Land Court at Mt Hagen to vary the Orders of 1990. S.44 of the Land Dispute Settlement Act permits such an application to be made (s.44 (3) (a)) within 12 years at the date of the Order and (s.44 (1)) if the applicant “can show that circumstances have changed so that the enforcement of the Order is causing hardship.” At the conclusion of the hearing of the application to vary, the Third Defendant ruled; 
“I therefore vary this part of the decision [and] in its place the boundaries between the Kukilikas and the Jiga Malakamps be drawn as proposed and accepted by majority in 1989 provided no hardships or inconvenience to be caused to those Jiga Malakamps already occupying parts of or within the Lalinga Land.”

5.	Still this question of the boundary has retained issues of dispute which simmered on until, in October 2013, some 12 years after the decision, land mediation took place on the question of the location of the boundary between the Plaintiff’s land and the First Defendant’s land under the provision of Sub-Division B of the Land Disputes Settlement Act. The Second Defendants signed this agreement on the 2nd of October 2013 and the boundary determined by the agreement was marked by a deep trench excavated by heavy machinery. This was as a result of an application made on the 10th of October under s. 27 of the Land Disputes Settlement Act. The Third Defendant approved the agreement under s.19 of that Act.

6.	The Plaintiffs claim now they were unaware of the Mediation and did not agree to the terms arrived at. Having, for more than 23 years, litigated this matter in Mt Hagen, where the parties to the dispute and the property the subject of the dispute are located, the Plaintiffs then, after a delay of 1 year and 6 months, sought relief from the National Court and filed an Application for Leave to Judicially review the decision of the Local Land Court at Mt Hagen by filing proceedings in the National Court at Waigani. These proceedings were filed under Order 16 Rule 3 (2) (a) of the National Court Rules and must be set out in some detail, for reasons I shall come to.

7.	The Plaintiffs also filed in Waigani a 31 page, a Writ of Summons and Statement of Claim nominating, as defendants, various police officers based in Mt Hagen, the Provincial Police Commander of the Western Highlands, the Commissioner of Police and the State, claiming damages for breach of Constitutional Rights, breach of the Search Act, the Arrest Act, for trespass, negligence and special damages and consequential Orders as a result of the Police having assisted in the digging of the trench to delineate a boundary between the two areas of land. The action, also, as I have said was filed in Waigani although all parties, (including the nominal Defendant State) were resident, in person or by lawyers, in Mt Hagen.

8.	The Originating Summons simply seeks leave for Judicial Review and was accompanied by an authority to act said to have been filed on behalf of 458 other persons and a statement under Order 16 Rule 3 of the National Court Rules as follows:

1.	Names and descriptions of the Plaintiffs
(a) 	The names and descriptions of the plaintiffs are the tribal members of the Kukulika Tribe (Kukulika Tribe) which is a traditional tribe in the Hagen Central Electorate or District, Mt Hagen, Western Highlands Province, c/ - Ashurst PNG Lawyers, P.O Box 850, Port Moresby, National Capital District, Papua New Guinea.
(b)	Timbi Barr is a member and a tribal leader of the Kukulika Tribe. He institutes this proceeding for and on behalf of himself and for and on behalf of and as representing the other plaintiffs.
(c)	Timbi Barr is authorised by the other plaintiffs to institute this proceeding.

2.	Relief sought
(a)	An Order in the nature of Certiorari quashing the decision of the Local Land Court held at Mt Hagen made on 10th October 2013 approving the purported Mediation Agreement made on 2nd October 2013 between the plaintiffs and the first defendants.
(b)	A Declaration that was purported Mediation Agreement made on 2nd October 2013 between the plaintiffs and the first defendants is void and is of no effect.
(c)	A Declaration that there was no agreement between the plaintiffs and the first defendants reached in the year 2000, to dig a “big drain to commence from Terma Rumint’s coffee through the head of Kurup Creek straight to Ganga Creek to Ganga Birbir straight to Kukuma’s drain all the way to Wimbuka Community School.”
(d)	The temporary restraining orders made by the Local Land Court on 14 April 2014 upon the Application by James Poli, Yop Randa and Lucas Kuk, who are the first defendants and members of the Jiga Malakamb’s sub-clan of the Jiga Tribe, be set aside.
(e)	Such further or other order as the Court deems appropriate. 

3.	Grounds
(a)	The plaintiffs and the first defendants share a common land boundary along a customary land called ‘Lalinga Land’. Prior to 1990, there had been disputes between the plaintiffs and the first defendants in relation to their common land boundary. 
(b) 	In 1990, the Local Land Court at Mt Hagen, Western Highlands Province made the following decisions:
“5.2. That by a majority decision, the historical and original ownership of the said Lalinga Land do belong to the Keme Kukulika Tribes and not the Jiga Malakam’s sub-clan.
		However;
“5.3 because of the long, long years of both the Jiga Malakam’s sub-clan and the Keme Kukulikas Tribes...having been in co-existence or living together prior to the differences towards the late 1980’s over the original ownership of the said Lalinga Land, and; on the principles of natural justice, this Court again by majority decision ruled that the Land Lalinga be equally/fairly allocated to the respective Sub-clan and Tribe.” (2nd leg of the decision). 
(c)	In 2001, the plaintiffs applied to the Local Land Court at Mt Hagen, Western Highlands Province to vary the Local Land Court decision of 1990. His Worship Raphael Appa varied the 2nd leg of the decision and said:
I therefore vary this part of the decision [and] in its place the boundaries between the Kukilikas and the Jiga Malakamps be drawn as proposed and accepted by majority in 1989 provided no hardships or inconvenience to be caused to those Jiga Malakamps already occupying parts of or within the Lalinga Land.” 
(d)	Pursuant to the Local Land Court decisions of 1990 and 2001 mentioned above (Land Court Decisions of 1990 and 2001), the common land boundary of the plaintiffs and the first defendants was along the edges of Lalinga Land bordering with the land of the first defendants. The only outstanding issue was to place cement pegs along the common land boundary.
(e)	On or about 2nd October 2013, pursuant to the Land Disputes Settlement Act 1975, there was an alleged land mediation held between the plaintiffs and the first defendants regarding ownership of certain customary lands and the position of the common land boundary of the plaintiffs and the first defendants. An alleged mediation agreement (mediation agreement) was then reached between the plaintiffs and the first defendants and was signed by the second defendants on or about 2nd October 2013. Pursuant to the term of the mediation agreement, a big drain was to be dug by four excavators from one end of the land border from Terma Rumint’s coffee to the head of Kurup Creek and straight to Ganga Creek and to Ganga Birbir and straight to Kuk Kukuma’s drain and all the way to the other end of the land border at Wimbuka Community School. At all material times:
(i)	the plaintiffs were not aware or consulted and/or given an opportunity to be heard in the land mediation held on or about 2nd October 2013, contrary to the intent of the Land Disputes Settlement Act Chapter 45 (Chapter 45 Act) (or the Land Disputes Settlement Act 1975 (the 1975 Act)): see esp. Section 1(a) of the respective Acts, and the principles of natural justice. And so.
(ii)		the plaintiffs did not agree to any mediation agreement and/or term or terms of a mediation agreement on or about 2nd October 2013.
(iii)		the second defendants recorded that an agreement had been reached on or about 2nd October 2013, contrary to section 18 (1) of the Chapter 45 Act (or the 1975 Act) as there was no agreement reached between the plaintiffs and the first defendants.
(f)	On or about 3rd October 2013, an application (application) under section 27 (2) of the 1975 Act for approval of the mediation agreement was made at the Local Land Court at Mt Hagen, Western Highlands Province. On 10th October 2013, the third defendant approved the mediation agreement, which pursuant to section 19(6) of the Chapter 45 Act (or section 28(6) of the 1975 Act) has effect as an Order of the Local Land Court. At all material times, the plaintiffs were not consulted or aware and/or given an opportunity to be heard before the Local Land Court approved the mediation agreement on 10th October 2013, regarding the mandatory requirements under section 19(2) (a), (b) & (c) of the Chapter 45 Act (or section 28(2) (a), (b) & (c) of the 1975 Act), which includes the following:
(i)	whether there was a land mediation between the plaintiffs and the first defendants regarding their common land boundary and whether a mediation agreement was reached on or about 2nd October 2013, and if so;
(ii)	whether the plaintiffs understood the terms of the mediation agreement;
(iii)	whether a substantial majority of the plaintiffs concur with the terms of the mediation agreement;
(iv)	whether the mediation agreement was not in breach of any law, or contrary to natural justice or public policy.
(g)	Further to the matters pleaded above, the Local Land Court: 
(i)	conducted its hearing on or about 10th October 2013 in a manner that was contrary to the principles of natural justice as the plaintiffs were not given an opportunity to be heard;
(ii)	acted ultra vires and/or committed an error of the law when it approved the mediation agreement without first enquiring with the plaintiffs to satisfy itself of the mandatory considerations under section 19(2)(a), (b) & (c) of the Chapter 45 Act (or section 28 (2)(a), (b) & (c) of the 1975 Act); 
(iii)	 committed an error of the law when it approved the mediation agreement under section 19(5) of the Chapter 45 Act (or section 28(5) of the 1975 Act) when there was no mediation agreement reached between the plaintiffs and the first defendants; 
(iv)	acted ultra vires and/or committed an error of the law when it allowed the application for approval of the mediation agreement to be made pursuant section 27(2) of the 1975 Act when he application for approval ought to have been made pursuant to section 28(1) of the 1975 Act (or section 19(1) of the Chapter 45 Act);
(v)	committed an error of the law when it approved the mediation agreement as there was already in place the Land Court Decisions of 1990 and 2001 which have decided the issue of the common land boundary of the plaintiffs and the first defendants.
(vi)	lacked jurisdiction to hear and approve the application on the basis that it was not properly constituted according to section 23(1) of the Chapter 45 Act (or section 22(1) of the 1975 Act) as Paul Akel who sat as the magistrate of the Local Land Court had not been appointed as a Magistrate of the Local Land Court pursuant to section 22 of the Chapter 45 Act (or section 21 of the 1975 Act).
(h)	Furthermore, contrary to section 19(1) of the Chapter 45 Act (or section 28(1) of the 1975 Act) the plaintiffs were not aware of the application at the Local Land Court to approve the mediation agreement. Instead, only one party, the first defendants without notice to the plaintiffs applied at the Local Land Court on 3rd October 2013 for approval of the mediation agreement, which was subsequently approved on 10th October 2013.
(i)	Accordingly and further to the circumstances pleaded above, no reasonable Local Land Court doing justice between the plaintiffs and the first defendants would have made the decision complained of.
Reason why the plaintiffs allowed the statutory right of appeal to the Provincial Land Court to expire
(j)	Between 30th October 2013 and 8th November 2013, a trench (trench) of about 3.3 kilometres in length, 4 metres in width and 4 metres in depth was dug allegedly pursuant to the Local Land Court Order of 10th October 2013 to mark the common land boundary between the plaintiffs and the first defendants. The trench was dug using four excavators which was guarded by about 70 fully armed policemen. At all material times:
(i)	the plaintiffs protested against the digging of the trench as it was in breach of the Land Court Decisions of 1990 and 2001, however the armed policemen said they had instructions from their superiors to do away with the common land boundary set by the Land Court Decisions of 1990 and 2001 and to dig a new land boundary.
(ii)	the plaintiffs were not given copies of the mediation agreement and the Local Land Court Order made on the 10th October 2013. And so;
(iii)	The plaintiffs were not aware of the mediation agreement and the Local Land Court Order made on 10th October 2013.
(k)	During the digging of the trench, food gardens and houses of the plaintiffs on their land but on the other side of the trench towards the land of the first defendants were destroyed. Accordingly, on 3 October 2014, several members of the Kukulika Tribe, whose food gardens and/or houses were destroyed, filed a Writ of Summons in National Court proceeding WS No. 1215 of 2014 – Timbi Barr & Others v The State & Others for damages as a result of, among others, breach of the Land Court Decisions of 1990 and 2001 and negligence of the police officers.
(l)	The State failed to file their Defences within the 90 day time period and so, on 12 February 2015 they filed a Notice of Motion supported by several affidavits seeking leave of the Court to extend time to file their Defences. On 13 March 2015, upon a file search of the Court file of proceeding WS No. 1215 of 2014 the plaintiffs for the first time became aware of the mediation agreement and the Local Land Court Order of 10 October 2013, which was attached to the affidavit of Paul Akel sworn on 10 February 2015 and filed on 13 February 2015 in proceeding WS No. 1215 of 2014 in support of the application to extend time to fill the Defences of the State. 
(m)	The plaintiffs were then forced to file the present application in the National Court of Justice pursuant to Order 16 Rule 3 of the National Court Rules and/or section 155(3)(a) of the Constitution, for leave to review the Local Land Court Order of the Local Land Court made on 10 October 2013, as the plaintiffs’ statutory right of appeal to the Provincial Land Court under section 54(1) & (2) of the Chapter 45 Act (or section 55(1) & (2) of the 1975 Act) expired.
(n)	On 14 April 2014, the Local Land Court at Mt Hagen, allegedly on the basis that there was the Local Land Court Order of 10 October 2013, made temporary restraining orders, among others, to restrain the plaintiffs to cross over the land boundary marked by the trench. The application was made by James Poli, Yop Randa and Lukas Kuk, who are the first defendants and members of the Jiga Malakamps. The plaintiffs were not aware of the application and the temporary restraining orders until on or about 12th March 2015. Furthermore, the temporary restraining orders are prejudicial to the plaintiffs as they are now not able to attend to their gardens, including food and cash crop gardens which are on the other side of the trench. Some of the plaintiffs are now forced not to rebuild their houses on the other side of the trench which was burnt down by the police officers.
There was no undue delay in making the application for leave to review 
(o)	The plaintiff became aware of the mediation agreement and the Local Land Court Order made on 10 October 2013 on or about 13 March 2015 as pleaded above. As there were no other options available to the plaintiffs other than an application in the National Court of Justice for leave for judicial review to review the Local Land Court Order made on 10 October 2013, the plaintiffs without any undue delay filed the present application.

9.	I noted on the file, when the matter was before me, reference to an action WS 1215 of 2014 involving the Plaintiffs. I enquired of counsel for the Plaintiffs if it concerned issues raised or potentially raised in this OS application. I was told that it did not: it was simply seeking damages from Police and the State for damage to the Plaintiff’s gardens arising from the cutting of the trench to which I have referred. This answer was seriously inaccurate. 

10.	The statement of claim (WS 1215 or 2014) was filed on the 3rd of 
October 2014. It is a 23 page document, much of it in gross disobedience of Order 8 Rule 8 (1) which requires;
•	“A pleading of a party shall contain only a statement in a summary form of the material facts on which he relies, but, subject to these rules, not the evidence by which those facts are to be proved.” (my underlining)

11.	More relevantly, for present purposes, I set out certain portion of this 
statement of claim.  
•	The Plaintiffs reside at Glanga Village, a few kilometres from the Kagamuga Airport at Mt Hagen, Western Highlands Province.
•	The Kukulika Tribe shares a common land boundary with the Jiga Malakamps Sub-clan of the Jiga Tribe of Hagen Central Electorate, Western Highlands Provice (Jiga Malakambs) along a customary land called ‘Lalinga Land’. Prior to 1990, there had been disputes between the Kukulika Tribe and the Jiga Malakambs in relation to the customary ownership of Lalinga Land.
•	In 1990, the Local Land Court at Mt Hagen, Western Highlands Province made the following decisions:
“5.2.	That by a majority decision, the historical and original ownership of the said Lalinga Land do belong to the Keme Kukulika Tribes and not the Jiga Malakambs sub-clan.
However;
“5.3.	Because of the long, long years of both the Jiga Malakambs sub-clan and the Keme Kukulikas Tribes...having been in co-existence or living together prior to the differences towards the late 1980’s over the original ownership of the said Lalinga Land, and; on the principles of natural justice, this Court again by majority decision ruled that the Land Lalinga be equally/fairly allocated to the respective Sub-clan and Tribe.” (2nd leg of the decision).
•	In 2001, the Kukulika Tribe applied to the Local Land Court at Mt Hagen to review the Local Land court decision of 1990. His Worship Raphael Appa varied the 2nd leg of the decision and said:
“I therefore vary this part of the decision [and] in its place boundaries between the Kukilikas and the Jiga Malakamps be drawn as proposed and accepted by majority in 1989 provided no hardships or inconvenience to be caused to those Jiga Malakamps already occupying part of or within the Lalinga Land.”
•	Pursuant to the Local Land Court decisions of 1990 and 2001 (Court Decisions of 1990 and 2001), the land boundary between the Kukulika Tribe and the Jiga Malakambs was along the edges of Lalinga Land bordering with the land of the Jiga Malakambs. The only outstanding issue was to place cement pegs along the land boundary.
•	In about July to October 2013 there was a tribal war between the Kukulika Tribe and the Jiga Malakambs as a result of several members of the Jiga Malakambs who crossed the land boundary onto the land of the Kukulika Tribe and stole coffee beans from coffee trees of the members of the Kukulika Tribe. Several members of the Kukulika Tribe then chased those members of the Jiga Malakamp’s and in the process, a member of the Jiga Malakamp’s shot dead a young man from the Kukulika Tribe.
•	On 28th October 2013 and 29th October 2013 respectively, the First and Second Defendants in command of more than 70 other armed policemen (armed policemen) entered Glanga Village with instructions from the Third and Fourth Defendants to dig a trench to mark a land boundary between the Kukulika Tribe and the Jiga Malakamp’s (the instructions) which would separate the two ethnic groups to prevent further tribal wars and to maintain peace and good order between them.   
•	Also 28th October 2013 and 29th October 2013 respectively at Glanga Village, Timbi Barr physically gave copies of the Court Decisions of 1990 and 2001 to the First and Second Defendants and the armed policemen. He explained the nature of the Court Decisions of 1990 and 2001 and that the land boundary between the Kukulika Tribe and the Jiga Malakamp’s was along the edges of Lalinga Land bordering with the land of the Jiga Malakamp’s. The First and Second Defendants and the armed policemen refused to follow the Court Decisions of 1990 and 2001 and said they were instructed by the Third and Fourth Defendants to mark and dig a new land boundary and to do away with the land boundary set by the Court Decisions of 1990 and 2001.
•	On 30th October 2013, the First and Second Defendants and the armed policemen entered Glanga Village with four Excavators to carry out the instructions. 
•	The four Excavators under the continual instructions and guard of the First and Second Defendants and the armed policemen dug a trench of about 3.3 kilometres in length, 4 meters in width and 4 meters in depth (the trench) to mark a purported new land boundary between the Kukulika Tribe and the Jiga Malakamp’s.
•	The digging of the trench aforesaid was carried out on 30 to 31 October 2013, 1st November 2013 and 4th to 8th November 2013, being a total of eight days. 
•	The trench was dug along land on which the plaintiffs had their gardens and houses and sites for graveyards and ceremonial activities.
•	There is about 132.25 hectares of land (the 132.25 hectares of land) between the purported new land boundary marked by trench and the land boundary set by the Court Decisions of 1990 and 2001. The gardens of the Plaintiffs on the 132.25 hectares of land were destroyed by the Excavators and several houses and household items of the Plaintiffs were burnt by the armed policemen. 
•	Further to the matters aforesaid, the actions of the First, Second, Third and Fourth Defendants and the armed policemen were in breach of the Court Decisions of 1990 and 2001:
(a)	Failing to draw or peg the boundary in accordance with the Court Decisions of 1990 and 2001.
(b)	Failing to ascertain the exact location of the land boundary to peg in consultation with the responsible stakeholders and authorities.
(c)	Digging the trench when it was not directed by the Court in the Court Decisions of 1990 and 2001 or in any other Court Order.
(d)	Digging the trench not along the boundary set by the Court Decisions of 1990 and 2001.
(e)	The way in which they attempted to resolve disputes between the Kukulika Tribe and the Jiga Malakamps was extreme and unreasonable in the circumstance.
•	Further to the matters aforesaid, the instructions given to the First and Second Defendants and the armed policemen by the Third and Fourth Defendants were in breach of the Court Decisions of 1990 and 2001.
(a)	Instructing the First and Second Defendants and the armed policemen to peg and dig a new land boundary and to do away with the land boundary set by the Court Decisions of 1990 and 2001.
		Particulars of breach of section 42 of the Constitution
		(a)	The Plaintiffs were not allowed by the First and Second 
Defendants and the armed policemen to attend to their gardens on the 132.25 hectares of land, as they trench was the new land boundary. 
•	Failing to ascertain that they were Court decisions in place defining the land boundary between the Kukulika Tribe and the Jiga Malakambs. 
•	Giving the instructions in breach of the Court Decisions of 1990 and 2001.
•	Failing to withdraw the instructions after the Court Decisions of 1990 and 2001 were brought to his attention.
•	Failing to ascertain that they were Court decisions in place defining the land boundary between the Kukulika Tribe and the Jiga Malakambs.  
12.	For reasons I shall discuss later, I regard this as a duplication of issues raised in OS 181 of 2015; as raising claims which should be properly pleaded in a one proceeding; of being caught by the principle in Port of Melbourne Authority v Anschun Propriety Limited and, by filing in Waigani, as being an improper attempt to obtain a collateral advantage – in short as a clear abuse of process. 

13.	I also note, in this matter, a long argumentative affidavit filed by Kuk Kundaki on the 5th of April 2015 which, after referring to and annexing the notice of the District Administrator (Mt Hagen) to the third Defendant to commence mediation states 
•	“11. Despite the issue of the land boundary being heard and decided by the Local Land Court, the Plaintiffs and the First Defendants continue to have disputes and disagreements as the First Defendants continue not to accept the Land Court decisions of 1990 and 2001. Consequently, on or about first week of September 2013, a notice to commence mediation was issued by Land Mediators to the Plaintiffs and the First Defendants. The mediation was to commence on the 23rd of September 2013, the Plaintiffs, including I did not request for any mediation to take place.......
•	14. The Plaintiffs including I, strongly disagree for mediation to commence as the traditional lands details in the Notice to Commence mediation was small stretches of land within the Lalinga and as such, the issues of customary ownership and the common land boundary between the parties had already been heard and decided by the Local Land Court in 1990 and 2001.
•	15. Furthermore, we were adamant that the common land boundary be drawn as set by the Local Land Court decision of 1990 and 2001, and accordingly there were no new land disputes capable of being mediated.....
•	16. Accordingly, the Plaintiffs including I refused to participate and did not participate in any land mediation......”
This evidence plainly contradicts counsel’s statement that the Plaintiffs were never aware of the mediation before the Third Defendants

14.	I find the Plaintiffs were aware of the proposed mediation but refused to attend. This affidavit, as well as being in gross breach of Order 11 Rule 32 (which requires it to be expressed to the first person) is in clear breach of the fundamental rule that the affidavits can speak only the facts and must not contain hearsay or argument. It does, nonetheless, show the Plaintiffs were aware of the mediation but chose not to attend. It is quite perverse therefore, to claim that they were denied an opportunity to present their case at the meeting in Mt Hagen.

15.	On the 6th of May 2015 the Plaintiffs applied for Leave due to Judicially Review the decision of the Local Land Court in Mt Hagen on the 10th of October 2013. Leave was refused and the National Court held that the Applicant Plaintiffs had not avoided themselves of alternatives remedies. 

16.	The Plaintiffs then appealed to the Supreme Court against the decision to refuse Leave. The Supreme Court, on the 28th of October 2015, allowed the appeal, holding, I am informed by counsel for the Plaintiffs that the Land Disputes Settlement Act, “covered the field” and no alternative remedy, in fact, remained open to the Plaintiffs. The matter was remitted to the National Court and, on coming before the National Court in Waigani on the 21st of March 2016, the learned presiding Judge directed that the file be transferred to the National Court in Mt Hagen as the cause of action and parties are all located here.

17.	On the matter coming before me on the 28th of July 2016, I adjourned it to the 10th of August for the Plaintiffs to show cause why this matter should not be struck out as an abuse of process. I received written submissions from counsel and heard argument on this question and, having considered the material to which I have been referred, and received documents on file and argument of learned counsel, I am now in a position to deliver my ruling. 

18.	This is an application filed on the 2nd of November 2015 pursuant to Leave granted by the Supreme Court to judicially review the decision of the Local Land Court at Mt Hagen on the 10th of October 2013. It is made pursuant to the Originating Summons filed on the 7th of April 2015. There also is a Writ of Summons, filed in Waigani, dealing with various aspects of this dispute over land which as has been going on about a quarter of a century. 

19.	In other words, there are two actions on foot concerning issues about this land – the Plaintiffs are suing two groups of Defendants and I note, from material before me, that this particular action is to overturn an agreement reached at a mediation called as a result of a Notice to commence mediation issued to the Plaintiffs and the Defendants. The Plaintiffs accept this and it is part of the sworn evidence filed on behalf of the Plaintiff to which I have already referred. The Plaintiffs received the Notice but, instead of attending and presenting argument, in what can only be described as a piece of blind obstinate perversity, refused to attend. 

20.	The Second Defendants made their decision, apparently in accordance with the procedures set down in the Act. The Plaintiffs did not take any action for one year and six months – then filed this application. I observe, in passing, that this sort of extended delay to judicially review an administrative decision is, in the absence of the most extraordinary circumstances, sufficient to disqualify such an application.

21.	The Orders challenged were public and made publicly. This application proceeds on the facts set out in the Statement of Facts (document No. 3 filed on the 2nd of April 2015) and on the facts depose to by the lead Plaintiff, Mr Timbi Barr, his fellow Plaintiff Mr Kuk Kundaki and other Plaintiffs. These all concentrate on the merits of the Plaintiffs’ claim and do not, as is necessary, deal with the procedures by which the Defendants (Second and Third) reached their decision: that is on the procedures by which the Third Defendant reached his decision. In other works, an argument which should have been presented before the defendants, or, at latest in an appeal from that decision, is being attempted in an application which should, properly, be concerned only about procedure. Further, it is being pursued in a most peculiar manner – the Plaintiffs say they knew nothing of the mediation but their sworn evidence contradicts this. I find, as a matter of fact, that I am satisfied on the balance of probability that the Plaintiffs knew of the proposed mediation and elected to ignore it. I also find, on the balance of probability that they were aware of the decision made at the mediation. 

22.	I come now to a question which has been occupying my mind for some time – that is whether this action is tainted – whether it is an abuse of the process of the Court within the provision of Order 12 Rule 40 (1) (c) of the National Court Rules, including if the litigation has a tendency to cause prejudice or is otherwise an abuse of process (within the provisions of Order 8 Rule 27 sub-rule 1, sub-rule (b) & (c)). For a start, I note that this action and WS 1215 of 2014 are instituted by the Plaintiffs against the Defendants who are resident in Mt Hagen and the subject in dispute is land which is also situated here.

23.	When asked why this matter was filed in Waigani and not Mt Hagen, Mr Joseph, counsel for the Plaintiffs, said that it was because that was in accordance with his clients instructions. That, of course, ignores the indisputable fact that it is a lawyer’s primarily duty to the client and to the Court to advise the client, before instituting litigation; such advise must not only include proper advice on the realistic  prospects of success of a proposed action but also on the proper forum in which to institute an action. 

24.	A party resident in Mt Hagen is quite within his rights to retain a lawyer in Waigani, Vanimo or Kokopo if he wishes. But if the proper forum of the action is Mt Hagen, because the dispute arose here between parties resident here, that lawyer must file in Mt Hagen and must appear here either in person or by duly appointed agent. To file an action in a Registry on the other side of the Country (regardless of the merits of the action itself) is more than just a matter of convenience to a Plaintiff who may then be resident away from where the cause of action arose; it is, prime facie, an attempt to obtain a collateral advantage. Failure to file in Mt Hagen, and filing in Waigani, in circumstances such as apply in this case may have consequences prejudicial to the Administration of Justice and may even, depending on the facts, be considered to be an attempt to further his client’s case by unfair means. (see Re Majory [1955] Ch 600; (Macoes (PNG) Limited v Allan Kundi 2012) (N 4621) are both authorities for this proposition). Further, even if there is a valid case, a lawyer – a competent and ethical lawyer – should advise his client that the proceedings may, none the less, be categorised as having an improper purpose if not filed in the proper forum. If there is an extraordinary reason for the matter proceeding away from the locus of the dispute and the parties, an application should be made to the Court at the proper forum to transfer the matter to another Registry. 

25.	Lawyers must not regard litigation as a competition in which a party tries to succeed by tricks, by attempts to deceive (for example by quoting selectively from authorities) or by any other under hand, back-door tricks. It is the duty of lawyers to place all authorities (whether favourable or adverse to their client’s case) before the Court and, if they are to invoke the impartial and considered jurisdiction of the Court, to assist the Court to do so – not to attempt some sort of jurisprudential three card trick. 

26.	These overriding consideration of Justice founded on fairness is the basis of  has become known as the Anshun Principle of abuse of process – so called because of the ruling of the High Court of the Australia in 1981 in Port of Melbourne Authority v Anshun Propriety Limited (147 CLR 589). This case has been adopted in Papua New Guinea in a number of instances – including Albright Limited v Mekio Interland Holdings Limited (N5774), Telikom PNG v ICCC (N3144) and PNG Deep Sea Fishing Limited v Like Critten (SC1126). 

27.	In attempting to raise in a Statement of Facts matters also pleaded in WS 1512 of 2014 the Plaintiffs are caught by the extended principle of abuse of process by res judicata as extended by Anshun. This, in addition to the issue of attempting to obtain a collateral advantage (to which I have referred to) condemns this application as a clear abuse of process. The motion for declarations certiorari and restraining Orders filed on the 2nd of November 2015 must fail.

28.	That does not leave the Plaintiffs without recourse to Court because of the Orders I shall make:
	
Formal Orders:-
	1.	The motion of the 2nd of November 2015 is dismissed;
2.	OS 181 of 2015 is to proceed by way of pleadings because of the complex issue of the facts that it raises;
3.	This action and WS 1215 of 2014 (improperly filed in Waigani) are to be consolidated and the actions are to proceed from this Registry in Mt Hagen;
4.	The Plaintiffs are to file in this Registry a Writ and Statement of Claim consolidating the 2 actions within 21 days of today and serve it in accordance with the rules and file a proper Affidavit of Service within 14 days of filing;
5.	The matter is to be listed for Directions and Argument on costs on the 21st of September 2016 at 9:30am. 
6.	Time is abridged.  	 
	 
30.	There remains, now, the question of Costs. 

31.	I propose to reserve all National Court costs in this matter (OS 181 of 2015) to 9:30 on the 21st of September 2016. I do so specifically because I am of the present view that the institution of proceedings in Waigani, as I have said, is a clear abuse of process and arose; in very large part, because of the default of the Lawyer for the Plaintiffs to properly advise his client. If not misconduct, such a failure, in these circumstances is, on the face of it, unprofessional conducted. 

32.	On the 21st of September 2016 I will hear argument from both counsel on Costs – especially on two issues. First, the party or parties who should bear the costs and secondly the basis on which such costs should be assessed. Counsel shall file and serve written submissions of no more than 10 pages by close of business on the 14th of September 2016. Counsel will also have available an extract of submissions (of no more than 3 pages) at 9:30 a.m. on the 21st of September 2016. Counsel each has 20 minutes to make their submissions. Counsel will each have 5 minutes only to respond to any issue of law only raised by the other Counsel in his submission. This response must not be thought of as leave to;

	1.	Repeat any argument already stated;
	2.	Raise fresh issues; or
	3.	Raise issues of fact and must be confined to issues of law only.

33.	When the time allotted has expired, counsel will cease speaking and resume his seat.  

 _____________________________________________________________
Ashurst Lawyers      : Lawyers for the Plaintiff		
Yanision Lawyers 	  : Lawyers for the Defendants