N7901
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 366 OF 2017

BETWEEN
SIMAKADE HOLDINGS LTD (No. 1-65165)
First Plaintiff

AND
NAI-AI KABOKU INCORPORATED LAND GROUP (ILG Reg No. 725) VANIMO JAYA LIMITED
Second Plaintiff

AND
LOBOT LOTU, HOSEA KUNAM, JOHN SURUGA, ORIM KOPMAN AND THOMAS TURANA, claiming to be customary landowners of the Dengnenge
and Loi Resource Areas, Open Bay, Lassul-Baining Local Level Government, East New Britain Province
Third Plaintiff

AND
DENGNENGE RESOURCES DEVELOPMENT LIMITED (No. 1-101192)
First Defendant

AND
KK CONNECTIONS LIMITED (No. 1-53019)
Second Defendant

AND
LALOANI NO. 8 LIMITED No. 1-48362)
Third Defendant

AND
PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

Kokopo:  Anis J
2019: 7 & 20 June

PRACTICE AND PROCEDURE - MOTION – notice of motion seeking dismissal of proceeding for abuse of court process – National Court Rules - Order 12 Rule 40(1)(a), (b) & (c) –– alternative relief – removal of parties from the proceeding - National Court Rules – Order 5 Rule 9 – exercise of discretion

Case Cited

Bernard Kosie v. John Kapi Natto (2015) N6263

Counsel

Mr N. Saroa, for the First & Second Plaintiffs
Mr F. Cherake, for the Third Plaintiffs
Mr T. Tape, for the First, Second & Third Defendants
Mr S. Mitige, for the Fourth Defendant

RULING

20th June, 2019

1.	ANIS J:	The first, second and third defendants (defendants) applied to dismiss the proceeding.  They also sought other relief in the alternative.  The notice of motion was contested.  I heard arguments on 7 June 2019, and reserved my ruling to 9:30am on 20 June 2019.

2.	This is my ruling.

BACKGROUND

3.	The plaintiffs had applied for judicial review in an earlier proceeding, that is, OS (JR) 144 of 2018.  The parties in that proceeding are identical to the parties in this proceeding except the National Forest Board which is not named as part of the defendants herein.  The plaintiffs had also sought damages in the judicial review proceeding.  This Court granted the judicial review application but refused to address damages, and instead indicated in its ruling that the plaintiffs were at liberty to seek damages separately.

4.	The plaintiffs filed this proceeding, following on from the above judicial review proceeding, seeking damages based on the purported actions or inactions of the defendants.

5.	The plaintiffs consist of entities and representatives of people who come from the Baining area, which is situated in the Open Bay area of Rabaul in East New Britain.  They represent one group of people (first group).  The other group of people (second group), also from the same area, is said to be represented by the first defendant.  Both groups have their own separate logging or agricultural plans and they both want their plans to be implemented on their customary land.  This has therefore led to various Court battles in the recent past.

6.	Recently or back in February of this year, this Court nullified a Forest Clearing Authority (FCA) that had been obtained by the second group and its interest groups including legal entities.  The FCA had been issued over the customary land of both these 2 groups.  As it is now, there are other licences which have been issued by the PNG Forest Authority in favour of the first group and its interest groups including legal entities.  Those licences are also subject to a separate Court proceeding which is pending determination.

NOTICE OF MOTION

7.	The defendants firstly argue that the proceeding should be dismissed because it is an abuse of the court process.  Secondly, they seek in the alternative that the second defendant should be removed as a party because it is not privy to any agreement and that it is a separate legal entity from the third defendant.  Thirdly, and also as an alternative relief, they ask that one of the third plaintiff representatives, namely, Hosea Kunam, should be removed as a party because he did not give his consent to be named as part of the third plaintiff.

8.	I must add here that the parties are at common ground in relation to the third alternative relief.  As such and subject to the Court’s findings on relief 1, the parties agree that Hosea Kunam be removed from the third plaintiff herein.

ISSUES

9.	The issues appear straight forward in this case.  They are, (i), whether the defendants have provided good reasons or causes for dismissal of this proceeding based on abuse of court process, and (ii), subject to the first issue, whether the second defendant should be removed as a party. 

ABUSE OF PROCESS

10.	The defendants have handed up to the Court on 7 June 2019, their written submission.  I note its content.  In relation to the first issue, they argue as follows.  They submit that the plaintiffs do not have standing and authority in the proceeding.  Let me address this contention.  In my view, standing and authority cannot be reasons associated to the ground abuse of the court process.  The better way to explain this, is to look at the definition of abuse of the court process.  I refer to the case Bernard Kosie v. John Kapi Natto (2015) N6263.  Justice Hartshorn summarises its meaning when he stated at paragraph 9 of his decision, and I quote in part: 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.  

11.	I adopt the definition herein.  Examples of abuse of court process I would give are, (i), filing duplicity of proceedings, (ii), commencing proceeding using an incorrect originating process, or (iii), commencing proceeding for purposes that are not provided for or permitted under the Court rules or law.

12.	On that basis, I refuse to grant the first relief.

13.	Let me also make this remark.  Relief 1 in the notice of motion reads, and I quote: Pursuant to Order 12, Rule 40(1)(a) and/or (b) and/or (c) of the National Court Rules, the entire proceeding be dismissed for abuse of process of the court.  I note that the reasons are poorly pleaded which make them vague.  In my view, an applicant should state precisely the basis or the grounds upon which the applicant wishes the Court to consider.  Using phrases like and/or is not precise.  In this case, this was how the defendants pleaded their first relief.  But to make things more difficult or complicated, the defendants, after having cited all the 3 grounds for dismissal under Order 12 Rule 40(1), pleaded abuse of the court process as the main ground or basis for the Court to dismiss the proceedings.  This was why this Court had to regard abuse of the court process as the only basis for wanting dismissal of proceeding by the defendants.

14.	This is the National Court.  Parties with counsel representing them must adhere to the Court process, its practices and to the National Court Rules.  In that way, matters listed or interlocutory applications that are filed, may be dealt with on their merits without uncertainties.

INSUFFICIENT PLEADING

15.	The defendants also argue that the pleadings were insufficient.  The defendants make references to the Statement of Claim and raise various points of contentions.

16.	In my view, insufficiency of pleadings cannot constitute or amount to abuse of the court process.  If a pleading is vague, or incontestably bad, a party may apply for it to be dismissed based on want of reasonable cause of action, or frivolity.  Again, these reasons were not cited as the basis for dismissal of proceeding in the present case.  

17.	Let me also say this.  There are processes in place where the defendants may utilise to obtain answers to, that is, on facts or particulars that may be lacking in the pleading.  For example, conducting discovery, interrogatories, or attendance to request for further and better particulars, to name a few.  However, I note that in this case, the defendants are raising arguments in relation to the damages that are being sought in the Statement of Claim.  I had indicated to counsel at the hearing that that may be a matter for submissions in relation to assessment of damages, that is, should the matter reach that stage.  I affirm that that should be the case, and that this is not the proper time, especially when the proceeding has just commenced and where the pleadings, discoveries and the interrogatories, have not been settled.

18.	For these reasons, I reject this argument by the defendants.

SECTION 5 NOTICE

19.	The defendants also raise the section 5 notice argument.  That is, they claim that the plaintiffs have not given their notice to the State under section 5 of the Claims By and Against the State Act 1996 (CBASA) of their intention to sue.  Section 5 states and I quote in part: No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given…  The provision continues with who and how the section 5 notice shall be served on the State entities in order for the notice to be regarded as validly served on the State.

20.	During the course of the submissions by the parties, it was generally agreed that the issue may be resolved if the plaintiffs could produce evidence to the Court at a later date of whether such notice had been given prior to the plaintiffs commencing this proceeding.  It was also noted that the relief was not properly sought in the notice of motion.

21.	Should I follow the intentions of the parties?  I will refuse to deal with or address this issue, as it is not properly before this Court.  I also note that the defendants are not State entities that are covered by the CBASA who may raise the argument.  Even if this Court were to determine the issue, it will not affect the rights of the plaintiffs to maintain their actions in this proceeding against the defendants.  The fourth defendant, unlike the three defendants, is a State entity.  But the fourth defendant is not the party that is raising the argument.  I note the fourth defendant’s counsel’s position in supporting the three defendants, however, in my view, for this Court to hear the fourth defendant on this subject matter, the fourth defendant must bring that properly before the Court by way of a notice of motion.  I also note that the argument was raised without notice to the plaintiffs.  I note these from submissions by the plaintiffs’ counsel.

22.	I refuse this argument by the defendants.

KK CONNECTIONS LTD

23.	The defendants submit in the alternative that the second defendant should be removed as a party to the proceeding.  They submit that the second defendant was not the contractor responsible for the work during the tenure of the FCA.  As such, they submit that it should be removed as a party because it is a separate legal entity.

24.	In my view, the argument may be valid.  Having said that, it is too early, in my view, for this Court to address the issue in detail.  Pleadings, as I have stated above in my decision, have not closed.  The three defendants and the fourth defendant have not yet filed their defence.  At this point in time, the only pleading that is before the Court is the plaintiffs’ statement of claim.  In relation to the plaintiffs’ assertion of the second defendant, it is pleaded at paragraph 5 in the statement of claim.  It reads, and I quote:

5.	The Second Defendant is and was at all material times:
(a)	a duly incorporated company under the Laws of Papua New Guinea;
(b)	currently engaged in logging operations in Dengnenge Resources Area, located in Open Bay, Lassul, Inland Baining Local Level Government, East New Britain Province; and
(c)	is capable of being sued in its corporate name and style.

25.	I am therefore not inclined to remove the second defendant without first requiring the parties to observing full compliances with the pleading process.  The defendants may have filed evidence to argue the removal of the second defendant, but I prefer not to deal with that at this juncture.  I prefer to approach the matter following the normal process, that is, after when the pleadings have been completed and the evidence are in.  It is too early to address the issues in any substantive way.

26.	For these reasons, I refuse to determine and grant relief 2 of the notice of motion.

HOSEA KUNAM

27.	The defendants’ final alternative argument is this.  They argue that Hosea Kunam, who is one of the customary landowners named as the third plaintiff, did not give his consent and therefore should be removed as a party.

28.	As I have stated in the earlier part of my ruling, this issue has been resolved.  I will order that Hosea Kunam be removed as a party or as part of the third plaintiff in this proceeding.

OTHER MATTERS

29.	I note that the defendants have raised a valid point, that is, on whether the first plaintiff can claim damages over customary land given that it is not a customary landowner and does not own customary land, and the fact that it is registered under the Companies Act 1997.  Despite my decision not to deal with the issue of standing because it was not properly raised before the Court for consideration, I would remark that the first plaintiff may wish to reconsider its position.

SUMMARY

30.	I will partially grant the defendants’ notice of motion.  I will also issue consequential orders.  The orders will include time for the plaintiffs to amend the names of the parties and where necessary, also amend their statement of claim.  I will also issue consequential orders to the defendants regarding the same.

COST

31.	Cost is discretionary.  I will order the plaintiffs to pay half of the cost of the defendants in relation to their notice of motion, to be assessed on a party/party basis which may be taxed if not agreed.

ORDERS OF THE COURT

32.	I make the following orders.

1.	The first, second, and third defendants notice of motion is partially granted on the following terms:

(i)	Relief 1 and 2 are refused.
(ii)	Relief 3 is granted, that is, Hosea Kunam shall be removed as one of the third plaintiff in this proceeding.
(iii)	The plaintiffs shall pay half of the first, second and third defendants’ cost of and incidentals to their notice of motion, on a party/party basis which may be taxed if not agreed.

2.	The plaintiffs are directed to amend the names of the third plaintiff.

3.	The plaintiffs are granted leave, and if need be, they are at liberty to file an amended writ of summons and statement of claim, and the said leave also extends to removing or adding parties to the proceeding.

4.	If the plaintiffs choose to amend their writ of summons and statement of claim, and if they also choose to add or delete the names of the parties to the proceeding, they shall file and serve the amended writ of summons and statement of claim on all the parties, within 21 days from today.

5.	After compliance by the plaintiffs of term 4 of the Court’s direction herein, the normal rules in relation to pleadings under the National Court Rules, that is, in relation to filing of a defence, or a cross-claim or a reply, shall apply to all the parties.

6.	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.
_____________________________________________________________
Nelson Lawyers:    Lawyer for the First & Second Plaintiffs
Cherake Lawyers:  Lawyer for the Third Plaintiff
Kandawalyn Lawyers: Lawyer for the First, Second & Third Defendants
PNG Forest Authority In-House Lawyer:	Lawyer for the Fourth Defendant