N6955

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 607 OF 2017

BETWEEN:
EPHRAIM DAULA for and on behalf of all the affected clans and sub-clans of Portion 302, Kinigunan
Plaintiff

AND:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
First Defendant

AND:
REGISTRAR OF TITLES
Second Defendant

AND:
DIRECTOR FOR NATIVE AFFAIRS
Third Defendant

AND:
THE STATE
Fourth Defendant

Kokopo: Anis AJ
2017: 13 & 23 October

MOTION TO DISMISS – want of locus standi and for lack of representative capacity to sue - Order 5 Rule 13 and Order 12 Rule 1 of the National Court Rules - abuse of process - Order 12 Rule 40(1)(c) of the National Court Rules

LAND REGISTRATION – claim for ownership of land based on alleged removal of encumbrances to the title - state lease - three (3) encumbrances consists of three (3) blocks of customary land - existing registered proprietor holds an indefeasible title - section 33(1) of the Land Registration Act discussed - plaintiff has no current or prior title over the same land

Facts

The plaintiff claimed to act for certain clans and sub-clans concerning a 99 years state lease, which is situated in Kokopo, East New Britain Province.  The state lease is Portion 302 Milinch Kokopo, Rabaul, East New Britain Province.  The plaintiff alleged interest over the state lease's encumbrances.  He claimed that when the title to the lease was re-issued to the first defendant in 2009 whereby the title was converted from freehold interest to lease hold interest, the first defendant excluded the three (3) encumbrances that had existed in the prior freehold title.  The first defendant has applied to dismiss the proceeding based on want of capacity to sue, want of representative capacity to sue and for abuse of the Court process.

Held

1.	The plaintiff did not expressly state that he was also suing for himself but evidence disclosed showed that he has interest in the matter so the plaintiff has standing.

2.	The plaintiff did not expressly attach a schedule to the originating summons naming the clans and clan members he claimed to represent, but evidence disclosed showed the names of the clans, the names of the clans' members and also their written authority for the plaintiff to act for them.

3.	A minor discrepancy or error in a title to a property, for example concerning encumbrances, gives no right in law to a person affected by it to seek cancellation and transfer of the said title absolutely to his or her name; there are administrative processes also available under the Land Registration Act Chapter No. 161 to rectify such errors.

4.	The first defendant held an indefeasible title over the state lease Portion 302 Milinch Kokopo, Rabaul, East New Britain Province.

5.	The three (3) encumbrances were included in the title of Portion 302 Milinch Kokopo, Rabaul, East New Britain Province when it was converted in 2009 from freehold interest to lease hold interest.

6.	The proceeding was baseless and an abuse of the Court process.

Cases Cited:
Papua New Guinea cases

Alex Bernard v. Nixon Duban (2016) N6299
Tigam Malewo v Keith Faulkner (2009) SC960
Rus Mongogl v. MVIT [1985] PNGLR 300
Roman Catholic Archdiocese of Rabaul v. Allan Gaung and Ors (2017) N6642
Mudge v. The Secretary for Land [1985] PNGLR 387
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No 2) [1988-89] PNGLR 425
Placer Dome (PNG) Ltd v. Yako (2011) N4691
Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977
Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175
National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068
Amos Ere v. National Housing Corporation (2016) N6515

Overseas cases

Bowler v Mollem Co. Ltd [1954] 3 All ER
Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438

Counsel:

Mr Kawas, for the Plaintiff
Ms Kiene, for the First Defendant
Ms Takoboy, for the Second, Third and Fourth Defendants

RULING

23rd October, 2017

1.	ANIS AJ:	The first defendant applied to dismiss the proceeding.  Its notice of motion was filed on 8 September 2017.  It says the proceeding must be dismissed (i) because the plaintiff lacks locus standi and representative capacity and (ii) because the process has been purportedly abused (abuse of the Court process).

2.	The notice of motion had the State's support.  It was moved on 13 October 2017.  The plaintiff contested it.  I heard submissions from the parties and reserved my ruling on that day to a tentative date, which was 20 October 2017.  On 20 October 2017, I rescheduled the ruling date to today at 9:30am.

3.	I rule on it now.

Relevant background

4.	The plaintiff and those he claims to represent, allege that they have interests over a land, which is situated in Kokopo in East New Britain Province.  The land consists of a state lease, which has a lifespan of 99 years.  It is described as Portion 302, Milinch Kokopo, Rabaul East New Britain Province (the property).  The first defendant is its registered proprietor.  The property has three (3) encumbrances to it.  The encumbrances are blocks of customary land that are located within the property.  The total land area of the property is 1052 hectares.

5.	The plaintiff firstly claims that the three (3) encumbrances were removed from the property when the first defendant, in 2009, had converted it from a freehold interest to a state lease.  Therefore, he wants the Court to declare the earlier title (i.e., the freehold title) to the property as valid because he says that the earlier title contains the three (3) encumbrances.  He also wants the Court to declare him, after cancelling and transferring the title, to be the registered proprietor of the property.

6.	The first defendant does not dispute that the property was converted in 2009 from freehold to leasehold interest.  But it denies the rest of the claim.  It says the three (3) encumbrances have never been removed and that they are still contained in the current title to the property after the conversion exercise in 2009. 

Source

7.	The first defendant's notice of motion is based on two (2) main sources.  The first is Order 5 Rule 13 and the second is Order 12 Rule 40(1)(c), of the National Court Rules.  Let me set them out here:

13.	Representation; Current interests. (8/13)
(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.
(2)	At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.
(3)	Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.
(4)	A judgement entered or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.
(5)	An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.
(6)	Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
(7)	This Rule does not apply to proceedings concerning —
(a)	the administration of the estate of a deceased person; or
(b)	property subject to a trust.

40.	Frivolity, etc. (13/5)
(1)	Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings —
.....
(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

Issues

8.	Let me set out the issues here.

(i)	Whether the plaintiff has locus standi.
(ii)	Whether the plaintiff has the legal capacity to act for those he claims to represent.
(iii)	Who are those clans, sub-clans and persons whom the plaintiff claims to represent?
(iv)	Whether the proceeding is an abuse of the Court process.

Standing

9.	The heading in the originating summons filed herein reads in part EPHRAIM DAULA for and on behalf of all the affected clans and sub-clans of Portion 302, Kinigunan.  The plaintiff does not sue for himself but rather sues for and on behalf of.  To me, it means that the plaintiff is not exercising his primary right but rather he is suing for others that he describes therein.  Should I dismiss the matter on this basis?  I am reminded by what Justice Kandakasi has said in the case of Alex Bernard v. Nixon Duban (2016) N6299.  At paragraph 98, his Honour said and I quote:

98.	The import of these and other cases on point are clear.  Only persons who have an interest in the subject matter of a complaint have standing.  In cases of a representative action, each of the persons on whose behalf an action is brought, must be named and their consent and approval sought and secured.  Where this requirement is not met, the plaintiffs should be given an opportunity to remedy that first before the ultimate act of dismissing their proceedings. This accords well with the principle that the Courts should be slow to driving a plaintiff out from having his day in Court except only in the clearest of cases for instance where there is no disclosure of a cause of action known to law.  So if in a case like the present, a person claiming to sue in a representative capacity fails to name those he claims to represent and has not filed the required affidavit evidence from those he claims to represent consenting to and approving the action on their behalf, the plaintiff should be first given an opportunity to remedy the situation. If such opportunity is given and is not made use of, only then should the proceedings be dismissed.   (Underlining is mine)

10.	I share the same view and I adopt them as my own.  I am prepared to follow the corrective approach as stated in Alex Bernard here, that is, to consider allowing time to the plaintiff to sort out his capacity issue.  I refer to the plaintiff's affidavit filed on 11 September 2017.  He deposes that he is a member of the sub-clan Gagalip, which is part of the Davara clan.  When I refer to the affidavit of Douglas Grant Tennent filed on 12 September 2017, he deposes Davara clan as one of the clans whose interest is situated within the three (3) encumbrances of the property.  I also refer to Annexure 1 to Mr Tennent's affidavit where he states that the Davara clan falls under the second encumbrance namely Kambaleo Portion 501, Area 37 hectares.  

11.	So having considered all that, the plaintiff appears to have standing in the matter.  I find that to be the case.  And following Alex Bernard, I do not think an opportunity was given to the plaintiff to take corrective measure, that is, to correct the heading so that it should read "for himself and for and on behalf of".  Should the plaintiff be driven off from having his day in Court for that failure alone, I ask myself?  I will answer in the negative.  But before I make any final decision and exercise my discretion in regard to the motion, there are other matters that I must also make findings on and take into account.  I will do that now.

Representative action

12.	Again, let me quote part of how the plaintiff has described himself.  He said that he acts on behalf of all the affected clans and sub-clans of Portion 302, Kinigunan.

13.	What does this mean exactly?  What affected clans and sub-clans is the plaintiff referring to?  In my view, it is wrong for a person to say that he acts for "X" number of persons, or in this case clans or sub-clans, without naming them (see Order 5 Rule 13 of the National Court Rules).  Upon being questioned on this point at the hearing, counsel for the plaintiff submitted that there has been compliance.  Counsel drew the Court's attention to the plaintiff's affidavit filed on 4 August 2017.  At paragraph 2, the plaintiff attaches various authorities for him to act for and on behalf of named individual members of the various clans.  The clans in total are seven (7).  They are: (i) Maudang, (ii) Mukuramainga, (iii) Davara, (iv) Vunabalbal, (v) Tobatobon, (vi) Taraiu and (vii) Rakubul.  

14.	Is that sufficient compliance, I ask myself? Let me refer to the case law.  The case authority on point may be derived from the case Tigam Malewo v Keith Faulkner (2009) SC960.  The Supreme Court sets out three (3) fundamental requirements, which I will summarise.  Firstly, all the intended plaintiffs must be named in the originating process.  Secondly, every intended plaintiff must give specific instruction (evidence in writing) to his or her lawyer to act.  And thirdly, the representative (i.e., the lead plaintiff or plaintiffs) of the class action must produce an authority or authorities to the Court to show that he or she was duly authorised by these other plaintiffs to file the proceeding as a class action.  

15.	The plaintiff, in my view, has provided evidence of the clans whom he represents.  There is also evidence in his affidavit filed on 4 August 2017 that the seven (7) clans and their members have appointed and given their consents to the plaintiff to act for them.  In my view, the authorities to act disclosed by the plaintiff extend to the plaintiff choosing a law firm to act for them as well.  And following what Justice Kandakasi has said in Alex Bernard which I have adopted above, I am disinclined to say that there has been non-compliance with Order 5 Rule 13 or with the requirements set by the Supreme Court in Tigam Malewo.  The present defects like the plaintiff not putting himself down as suing for himself or to attach a schedule showing the names of the other plaintiffs and clans, can be cured without dismissing the proceeding.  I refer to what Lord Denning has said in the case Bowler v Mollem Co. Ltd [1954] 3 All ER at pg. 556 (which was also cited by Pratt .J in Rus Mongogl v. MVIT [1985] PNGLR 300).  He said, the thing which cannot be cured is the bringing of an action in a representative capacity when that capacity does not exist.  In this case, had there been no evidence disclosed to clarify the defective heading and authorities to act, I would not have hesitated to dismiss the claim in the first instant without regard to the other issues.  However, in this case, clearly, the plaintiff's capacity to represent the persons and clans is disclosed in evidence.  In my view, it would be unjust or inconsiderate to simply turn a blind eye.  But again, before I exercise my discretion, let me consider and make my findings on the other issues as well below.

Misconception

16.	The plaintiff alleges (refer to paragraph 19 of his affidavit filed on 4 August 2017) that the first defendant had removed the three (3) encumbrances in the title of the property in 2009 when it converted the property from freehold interest to lease hold interest.  He says that as a result, he and the affected clans who have interests over the encumbrances, were affected because their interests (i.e., in the three (3) encumbrances) were not registered or included into the new title that was issued in 2009 to the first defendant over the property (the allegation).  Therefore, he wants the Court, based on the allegation, to cancel the first defendant's title to the property and have that transferred to his name.  This is where I think the plaintiff has misconceived the facts and the basic principle of law on indefeasibility of title.  Let me explain.  This is not the first time this year that the title of the property has been questioned by landowners of the surrounding areas of the property.  I refer to my earlier judgment delivered this year in the case Roman Catholic Archdiocese of Rabaul v. Allan Gaung and Ors (2017) N6642.  The first defendant therein had established that it was the registered proprietor of the property.  This was necessary before I had to grant vacant possession of the property to the first defendant against people who were illegally settling on the land.  The plaintiff herein is challenging the title of the same land.

17.	So the first basic and fundamental fact the plaintiff is missing, in my view, is that he is not the registered proprietor of the property.  Secondly, he was not the registered proprietor of the proprietor before it was converted to a state lease in 2009.  Prior to 2009, the first defendant was its registered proprietor having acquired it on 27 April 1933 from an earlier planter by the name of JeanBapiste Mouton who had acquired it as a freehold land.  The first defendant is currently its registered proprietor.  The property has a big land mass of 1052 hectares.  The three (3) encumbrances, according to the affidavits of Douglas Tennent and Nobert Tokuvang filed on 18 August 2017 and 31 August 2017 respectively, consists of the following:

(i)	Kambaleo (37 hectares);
(ii)	Takubar (32 hectares 96 ar);
(iii)	Lelerai (12 hectares 43 ar)

18.	The encumbrances are customary land.  The first defendant's evidence shows that the three (3) encumbrances are shown and located within the title of the property.  The owner's copy of the title of the property is annexed as Annexure 2 to the affidavit of Nobert ToKuvang filed on 31 August 2017.  At page 3 of the title, it reads in part and I quote:

This lease is subject to the encumbrances more particularly described in Certificates of Title Volume 3 Folio 62 in favour of the STATE and CUSTODIAN of Trust Land as the ultimate successor to the Director of District Services and Native Affair as a Trustee for Natives.

19.	I accept the evidence as accurate.  I also note that the parties had on 21 September 2017 upon the Court's request, inspected the sites of the three (3) encumbrances with the assistance of officers from the Provincial Lands Department.  The locations of the encumbrances have been noted during the said site inspections.  This is evident in the affidavit filed by Ms Takoboy on 12 October 2017.  An attached letter dated 11 October 2017 by the Provincial Lands Department, in Ms Takoboy's affidavit, concluded that a detailed marking of the three (3) encumbrances may be carried out upon request.  Evidence of the site inspections is also stated in the affidavit of Nobert ToKuvang field on 27 September 2017.  Now, I did not find any relevant evidence disclosed by the plaintiff against the evidence of the first defendant and the State.  So what this means to me is that the allegation made by the plaintiff that the three (3) encumbrances were excluded from the property when the title of the property was converted in 2009 from freehold to lease hold, is false and cannot be sustained.  I find that to be the case.

20.	Even if I may be wrong with my above finding, let me say this.  The first defendant is the registered proprietor of the property.  By law, it means that the first defendant's title is indefeasible subject only to fraud or to the exceptions that are provided for under section 33(1) of the Land Registration Act Chapter No. 191 ( see case: Mudge v. The Secretary for Land [1985] PNGLR 387).  During the hearing, the plaintiff's counsel pointed to section 33(1)(c) as the applicable provision.  The said sub-section reads (c) the estate or interest of a proprietor claiming the same land under a prior instrument of title.  I find the argument misconceived.  The plaintiff does not have a separate current or prior title over the same land that the first defendant is currently occupying under its present title.  The case authorities counsel has cited do not assist his client's case.  I reject this submission.  

21.	But let me set out section 33(1) here.

33.	Protection of registered proprietor.

(1)	The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—
(a)	in the case of fraud; and
(b)	the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c)	the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d)	in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e)	in case of the wrong description of the land or of its boundaries; and
(f)	as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g)	as provided in Section 28; and
(h)	a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i)	any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a department or officer of the State or of a public corporate body.   (Underlining is mine)

22.	I have addressed section 33(1)(c) above in my judgment.  The plaintiff's allegation may also qualify under section 33(1)(b) of the Land Registration Act.  But again, I have also addressed that above in my judgment, which was that the three (3) encumbrances for the property were unaffected by the conversion of the title from a freehold interest to a lease hold interest in 2009.  The encumbrances are expressly included in the title to the property.

Abuse of the Court process

23.	I turn to the next issue and ask myself this.  Is this proceeding an abuse of the Court process?  I think the best place to begin would be to look at the relief.  I draw my attention to the originating summons.  Most of the relief are consequential so I will not deal with them all here.  Instead, I will address the three (3) main ones.  They are and I quote:

1.	A declaration that the plaintiff is the registered proprietor of Portion 302 Volume 3, Folio 58 pursuant to section 2(1) and 32(b) of the Land Registration Act, 1981 and section 155(4) of the Constitution.
2.	A declaration that the substituted lease over portion 302, Volume 3, Folio 62 are all subject to the prior encumbrances on the prior title legally described as Portion 302, Volume 3, Folio 58 pursuant to section 31(2) of the Land Registration Act, 1981 and section 155(4) of the Constitution.
3.	A declaration that the substituted state lease over portion 302 and the restored Certificate of Title over portion 302, Volume 3, Folio 62 are null and void for breach of section 33(1)(b) of the Land Registration Act, 1981 pursuant to section 155(4) of the Constitution

24.	The three (3) relief, in my view, are unattainable by the plaintiff under law.  I must say at the outset here that I find the proceeding to be an abuse of the Court process for various reasons.  The first reason is this.  The plaintiff wishes the Court to declare him as the owner of the property when the property currently has a legal owner who holds a valid title over it, that is, the first defendant.  As I have explained above in my judgment, the first defendant holds indefeasible title over the property.  Before the conversion of the title in 2009, the first defendant had held a freehold title over the property for about 76 years.  In my view, for the plaintiff to assert that he was the registered proprietor of the property before 2009, and to ask the Court to declare him as such, is false.  It also suggests that the plaintiff's conduct may be described as unconscionable.  I say this because evidence of the three (3) encumbrances is shown clearly in the current title and on the map of the property.  The plaintiff could have easily obtained the relevant information by conducting a land search at the office of the Department of Lands and Physical Planning.  The plaintiff could also have obtained that by requesting a true copy of the title and the map from the first defendant, that is, instead of rushing straight to Court.

25.	Secondly, assuming that there may be issues in regard to the encumbrances, the plaintiff's interest or right would be confined to the said encumbrances in the property.  Had the encumbrances been removed as alleged, the plaintiff's right would only be limited to correcting the encumbrances in the title and nothing more than that.  It can also be cured administratively as a minor error under sections 160 or 161 of the Land Registration Act with the powers that are bestowed with the Register of Titles.  But it is, in my view, plain abuse of the Court process for the plaintiff to rely on an alleged issue concerning the encumbrances that are in the title of the first defendant over the property and, based on that, request the Court to cancel the first defendant's title and have it transferred to the plaintiff's name. 

26.	Thirdly, the relief sought in the originating summons also fails to meet the requirements under law.  I refer to the following cases:  The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425; Placer Dome (PNG) Ltd v. Yako (2011) N4691; Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977; Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068.  Justice Hartshorn summarised the tests or considerations that were applied in these cases in the case of Amos Ere v. National Housing Corporation (2016) N6515.  At paragraphs 11 and 12, His Honour said in part and I quote:

Declaratory relief

11.	As the plaintiffs’ seek declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made.

12.	The factors are:
a)	There must exist a controversy between the parties;
b)	The proceedings must involve a right;
c)	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order;
d)	The controversy must be subject to the court’s jurisdiction;
e)	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim;
f)	The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

13.	In the High Court of Australia decision, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564, Brennan J. referred to the Russian Commercial case (supra) and said that notwithstanding the wide discretion that exists in deciding whether a declaration should be made, it was not appropriate to grant a declaration if there was no real controversy to be determined. 

14.	Also, recently, the Supreme Court in considering the issue of standing to seek declaratory orders in Pius Pundi v. Chris Rupen (2015) SC1430 held amongst others that:

“A declaration is a discretionary remedy that should only be granted where there exists a real controversy between the parties to the proceedings, a legal right is at issue, the party seeking it has a proper or tangible interest in obtaining it, the controversy is within the court’s jurisdiction, the defendant has a proper or tangible interest in opposing the plaintiff’s claim and the issues involved are real, and not merely of academic interest or hypothetical.”

27.	These principles are relevant and I adopt and apply them herein.  All I can add, given my findings above in my judgment, is this.  I cannot see any real controversy between the parties to the proceeding particularly between the plaintiff and the first defendant.  The plaintiff's allegation has been proven to be baseless.  The first defendant has attached its title to the property and it clearly shows that the three (3) encumbrances are intact contrary to the plaintiff's allegation.  I cannot see that a legal right is at issue between the plaintiff and the first defendant.  I also cannot see that the plaintiff and his group herein have a proper or tangible interest that would warrant them to obtain the declaratory relief. 

28.	I uphold the second relief of the notice of motion that the proceeding should be dismissed for abuse of the Court process under Order 12 Rule 40(1)(c) of the National Court Rules.

Summary

29.	In regard to the first issue Whether the plaintiff has locus standi, my answer is "yes."  In regard to the second issue, Whether the plaintiff has the legal capacity to act for those he claims to represent, my answer is "yes he does."  In regard to the third issue, Who are those clans, sub-clans and persons whom the plaintiff claims to represent?, my answer is "they are those that have been identified by the plaintiff in his affidavit filed on 4 August 2017."  In regard to the fourth issue, Whether the proceeding is an abuse of the Court process, my answer is "yes, and I have also found the proceeding to be baseless given the fact that the three (3) encumbrances have never been removed from the first defendant's title to the property as alleged."

30.	I will exercise my discretion and dismiss this proceeding.

COST

31.	I will award the cost of the proceeding to follow the event.  It will be awarded to the defendants on a party/party basis, which may be taxed if not agreed.

THE ORDERS OF THE COURT

I make the following orders:

1.	The proceeding is dismissed for abuse of the Court process, and in addition, on the basis that it is baseless.

2.	The plaintiff shall pay the defendants' costs of the proceeding on a party/party basis, which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

____________________________________________________________
Kusip & Associate Lawyers:	Lawyers for the Plaintiff
South Pacific Legal Services:	Lawyers for the First Defendant
Solicitor General:	Lawyer for the Second, Third and Fourth     Defendants