N8040

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 116 of 2019 & OS 479 of 2019

BETWEEN:
YAKAM MALAYEKI, Leader of Waffes Clan of Babuaf Village, Wampar LLG, Morobe Province
Plaintiff

AND:
JUDAH UTIN
First Defendant

AND:
YAWASING ANUNGA
Second Defendant

AND:
THOMAS NEN
Third Defendant

Lae:  Numapo, AJ
2019:	  04th September & 04th October

CIVIL PRACTICE AND PROCEDURE – Application to set aside ex parte orders - Order 12 Rule 8 (3) (a) – Representative class action –- Plaintiff’s Lack of standing to institute proceedings – Order 5 Rule (13) - No reasonable cause of action disclosed   – Trivial and vexatious proceedings - Abuse of Court’s Process – Order 12 Rule 40 (1) – Application refused. 

Held:

(i)	Plaintiff has not provided a reasonable explanation of his absence to the satisfaction of the Court. 

(ii)	Plaintiff has no standing to represent the Waffes Clan in these proceedings pursuant to Order 5 Rule 13 (1).

(iii)	There is no reasonable cause of action disclosed in the pleadings and the proceedings are trivial and frivolous and an abuse of the process of the Court pursuant to Order 12 Rule 40 (1) (a) (b) and (c).

(iv)	Plaintiff has abused the Court’s process by commencing multiplicity of proceedings on a matter with substantially the same issue seeking the same relief.

(v)	Application to set aside the ex parte order refused.

Cases Cited:
Papua New Guinea Cases

Andakelka Ltd v Petronas Ltd [2010] PGNC 4; N3976. 
Anderson Agiru v Electoral Commission (2002) SC 682
Dogoliv v Laho [2005] PGNC 47; N2885. 
Eliakim Laki v, Maurice Alaluku, Secretary for Lands [2000] N4158 
Kiee Toap v The State & Ors (2004) N2731.
Louis Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158.
Markscal Ltd v Mineral Resources Development Ltd (1999) PGNC 117; N1807.
National Superannuation Fund v Yawenaik Holdings Limited & Ors (2018) SC1709.
Paula Yayabu Lawyers & Ors v Melanesian Trustee Services Limited & Ors [2016] N7967 (18th July 2019).  
PNG Forest Products Ltd v The State [1992] PNGLR 85. 
Simon Mali v. Independent State of Papua New Guinea (2002) PNGLR 15.
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.
Tigam Malewo v. Keith Faulkner (2009) SC 960. 
Wawoi Guavi Timber Company Limited & Ors v John Molu (2016) SC 1514.
Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674

Overseas Cases

Armour v Bate [1891] 2 QB 223

Counsel:

Mr A Chillion, for the Plaintiff 
Mr F So, for the Defendants

DECISION

4th October, 2019

1.	NUMAPO AJ: This is an application by the Plaintiff/Applicant made pursuant to Order 12 Rule 8 (3) (a) of the National Court Rules (NCR) seeking to set aside an ex parte order of the 05th July 2019 dismissing the proceedings and to reinstate the proceedings forthwith for substantive determination. 

A.	BACKGROUND

2.	On 5th July 2019 the Court, on an ex parte application by the Defendants, the court dismissed the proceedings referred to as OS 116 of 2019 on three grounds; firstly, that the Plaintiff has no standing to institute the proceedings pursuant to Order 5 Rule 13 (1); secondly, that the proceedings was frivolous and vexatious and an abuse of Court’s process pursuant to Order 12 Rule 40 (1) (b) (c) and thirdly, for want of prosecution pursuant to Order 10 Rule 5.  The collective orders were made concurrently with individual effect of its own. 

3.	On the 5th July 2019 neither the Plaintiff nor his lawyer was present when the proceedings was dismissed on an application by the Defendants even though the Plaintiff and his Counsel were advised of the hearing date.    

4.	On the 24th August 2019, the Defendants moved to dismiss yet another similar proceedings styled OS 479 of 2019 when it was discovered that there was a motion on foot by the Plaintiff to set aside the orders of 5th July 2019.  Plaintiff apply to have the two matters (OS 116/2019 and OS 479/2019) consolidated and dealt with together as the relief sought is substantially the same despite different people being named as defendants in the two proceedings.  I granted leave for the two matters to be consolidated and dealt with together as the issues and the relief sought are substantially the same. 

B.	ISSUE
 
5.	The issue is: ‘Whether the ex parte order made on the 5th July 2019 dismissing the proceedings can be set aside and the matter be reinstated?’ 

C.	THE LAW

6.	Order 12 Rule 8 (3) of the National Court Rules states that:

The Court may, on terms set aside or vary an order – 

(a)	  where the order has been made in the absence of a party, whether or not   the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of the motion for the order; or

(b)	 where notice of motion for setting aside or variation is filed before entry of order.

D.	PRESENT CASE

7.	The Plaintiff moved to set aside an ex parte order pursuant to Order 12 Rule 8 (3) made on the 5th July 2019 dismissing the proceedings and to have the matter reinstated.   

8.	In support of the application, Mr Chillion for the Plaintiff referred the Court to the Supreme Court decision in Wawoi Guavi Timber Company Limited & Ors v John Molu (2016) SC 1514 where the court held that the National Court has the power under Order 12 Rule 8 (3) of the NCR to set aside an ex parte order dismissing the proceedings for reasons that the rule was intended to set aside order made in absence of another party.  The Court said that, it would be futile to appeal as the grounds of appeal would be dependent on what is submitted in the lower court and if a party does not appear, there would be no grounds he would rely on because he was absent at the hearing.  The Supreme Court went further to say that the power to set aside an ex parte order is conditional on the following:

(a)    There is a reasonable explanation for the party’s absence at     the hearing;
(b)    There is no delay in applying to set aside the order; and
(c)    There is merits in the substantive matter.

9.	The decision was later reaffirmed in the Supreme Court’s decision in National Superannuation Fund v Yawenaik Holdings Limited & Ors (2018) SC1709.

10.	I have read the decisions of the two cases and it appears to me that both relate to dismissal of proceedings for Want of Prosecution pursuant to Order 10 Rule 5 and not for frivolous and vexatious or abuse of the Court’s process etc.  

11.	In the present case the proceedings was dismissed on three separate grounds firstly, for being frivolous and vexatious and abuse of the Court’s process pursuant to Order 12 Rule 40 (b) (c), secondly for being an abuse of process as the Plaintiff does not have standing to institute the proceedings pursuant to Order 5 Rule 13 (1) (a), and thirdly, for want of prosecution pursuant to Order 10 Rule 5.

12.	I agree with Mr So for the Defendants that the Orders of the 5th July 2019 is a collective order dismissing the entire proceedings on several grounds of which want of prosecution is one.  The other grounds such as dismissal of the proceedings for being frivolous and vexatious, an abuse of the Court’s process and lack of standing are separate grounds which must be argued on their own merits.  Mr Chillion argued that application to set aside an ex parte equally applies to all grounds of dismissal including want of prosecution and undertook to provide the relevant case laws to assist the Court but he has not done so.

13.	The applicable principles developed by the Supreme Court in Wawoi Guavi (supra) also gives the absent party the opportunity to explain why the order dismissing the proceedings should be set aside and the matter be reinstated for hearing.  As to whether the Court should set aside the ex parte order or not is within the discretion of the Court after having regard to all the circumstances.

(a) There is a reasonable explanation for the party’s absence at the               hearing.

14.	The Plaintiff claimed that neither he nor his lawyer was advised of the hearing date after the matter was adjourned from 10th June 2019 which was a Public Holiday (Queen’s birthday) and re-listed on the 5th July 2019.

15.	I find the Plaintiff’s argument rather unconvincing for the reason that there is on record a letter dated 30th May 2019 from the Assistant Registrar of the Lae National Court addressed to both Counsels and their respective law firms advising them that the matter has been re-listed for the 5th July 2019 at 9:30am due to the Public Holiday on the 10th June 2019.  The advice was sent by both email and post to all parties by their known addresses and contact details. 

16.	Counsel for the Defendants Mr So appeared on the 5th July 2019 and is on record to have informed the Court that he was notified by the Lae National Court Registry via a letter dated 30th May 2019 sent through email that the matter was re-listed for the 5th July 2019 hence his appearance.  The same letter was also sent to Chillion Lawyers.  Based on the copies of the correspondences on file, I am satisfied that the Plaintiff’s Counsel Mr Chillion has also received the same advice from the Assistant Registrar regarding the new date for the hearing of the matter.  I do not accept the explanation by the Plaintiff’s Counsel that he has not received any such advice.  In any case, as the Plaintiff in the matter it is in his interest to follow up with the National Court Registry and find out if the matter has been re-listed to another date given that 10th June 2019 was a Public Holiday.  Clearly, the Plaintiff has not done that.  The Court having satisfied itself that the Plaintiff has had due notice of the hearing proceeded to hear the matter pursuant to Order 4 Rule 33 and dismissed it on an application by the Defendants.  The Defendant is entitled to a judgment dismissing the claim. See: Armour v Bate [1891] 2 QB 223.
   
17.	The Court Rules (Order 10 Rule 5) places an obligation on the Plaintiff to take an interest in the proceedings and get it to trial within a reasonable period of time and prosecute it without delay.  The Plaintiff initiated the proceedings and so it is his interest to bring it to finality.  This also includes, in my view, all administrative and preliminary matters leading up to the trial such as progressively checking with the Court’s registry in getting the matter listed for call-overs, directions hearing etc.  Plaintiff is also required, as a matter of common courtesy, to give adequate notice to the Defendants on the progress of the case and the date of the trial once it is fixed.  Plaintiff clearly has not done all that. See: Paula Yayabu Lawyers & Ors v Melanesian Trustee Services Limited & Ors [2016] N7967 (18th July 2019).  Also see: Dogoliv v Laho [2005] PGNC 47; N2885; and Markscal Ltd v Mineral Resources Development Ltd (1999) PGNC 117; N1807. 

18.	I am not satisfied with the explanation provided by the Plaintiff for his non-appearance on the 5th July 2019. Plaintiff has not provided a reasonable explanation to the satisfaction of the Court of his absence.

(b)    There is no delay in applying to set aside the order

19.	With respect to the second ground, I simply say that there is no inordinate or undue delay and I am satisfied that the application was filed within time.

(c)    There is merits in the substantive matter.

20.	Thirdly, as regards to merits in the substantive matter, the Plaintiff alleged gross misuse of money and abuse of office by the Defendants and breach of trust of those elected to represent the landowners and relates mainly to the unfair distribution of cash payments and other benefits to the landowners.  The case involved factions of landowner groups within the Wafi-Golpu Mine Project area.  

21.	Plaintiff commenced proceedings by originating summons pursuant to Order 4 Rule 3 and sought, amongst others, certain declaratory orders basically asking the Court to declare that the Defendants have no right to represent the Waffes Clan and therefore, should not represent or conduct any business or receiving any payments or benefits payable by Wafi/Golpu Mining on behalf of the clan. Orders were also sought to restrain the Defendants from filing any future proceedings against the Plaintiff under the name of Waffes Clan or Babuaf village pending the determination of the substantive matter pursuant to Order 12 Rule 1 of the NCR.  The affidavit filed by the Plaintiff on the 01st March 2019 stated that the Third Defendant, Thomas Nen is not a landowner but was only acting on a Power of Attorney given to him in 2005 by the Second Defendant- Yawising Anunga of Waffes Clan however, that Power of Attorney is no longer valid following the establishment of the Waffes Land Group (ILG No 9876). Plaintiff also alleged that K5 million meant for the landowners was misused since 2012 by the Third Defendant with no tangible benefits to the landowners. Plaintiff however, did not raise any allegations against the First and the Second Defendants named in the proceedings both of whom are also members of the Waffes Clan and this has not been disputed by the Plaintiff.

22.	In so far as the pleadings is concerned, I find no reasonable cause of action been disclosed in the pleadings.  And I say this because the statement of claim did not set out clearly the material facts to be relied on to seek the appropriate relief.  I am not convinced that an arguable case exists giving rise to a serious question to be tried in the substantive determination in order for me to grant the interim orders sought to reinstate the proceedings under Order 4 Rule 32 and Order 12 Rule 1.  The Plaintiff has not outlined the substantive issue(s) for determination apart from generally stating that there is merit in the substantive matter. The whole pleadings is convoluted. 

23.	I find the substantive proceedings frivolous and vexatious and does not disclose a reasonable cause of action and is an abuse of Court’s process pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e) and Order 12 Rule 40 (a) (b) & (c).

24.	The Court has a duty to protect its process against vexatious litigants ensuring that they do not abuse the Court’s process by instituting frivolous and vexatious suits.  The Court can use its inherent powers to dismiss such frivolity, vexatious or abuse. See: Wabia v BP Exploration Operating Co Ltd [1998] PGNC 177; PNG Forest Products Ltd v The State [1992] PNGLR 85; Kiee Toap v The State & Ors (2004) N2731; and Andakelka Ltd v Petronas Ltd [2010] PGNC 4; N3976

E.	MULTIPLICITY OF PROCEEDINGS

25.	It was also brought to the attention of this Court that the Plaintiff had filed similar proceedings (OS 668 of 2017) seeking the same relief at the Waigani National Court that is still pending.  The current proceedings OS 116 of 2019 and another similar proceedings titled OS 479 of 2019 both were filed in Lae totalling to three separate proceedings altogether currently on foot with substantially the same issue seeking the same relief.  The only explanation provided by the Plaintiff is that whilst the issue and the relief is the same the defendants are different.  I do not necessarily accept that as I would have thought that the ideal thing to do would be to name all the defendants together in a single originating process and proceed as a class action rather than individually given the fact that the issues and the relief sought are relatively the same. 

26.	In Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906, per Injia DCJ, Kirriwom J, & Cannings J, held that:

“A person commencing a multiciplicy of proceedings commits an abuse of process”.

27.	A new proceeding OS 479 of 2019 was subsequently filed on the 12th July 2019 seeking the same relief after a similar proceedings OS 116 of 2019 was dismissed a week earlier on the 5th July 2019.  It appears to me that the Plaintiff was trying to use the fresh proceedings as a fallback position to seek the same relief in the event that the motion to set aside the ex parte orders of the 5th July 2019 is not granted.  This is multiplicity of proceedings in its clearest form.  I considered that as a deliberate attempt on the part of the Plaintiff to ignore the rules and therefore, it amounts to an abuse of Court’s process.

28.	In Anderson Agiru v Electoral Commission (2002) SC 682, the Supreme Court held that:

“The Court must ensure that multiplicity of proceedings is not commenced by unsuccessful litigants. That is that the litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to the institute an alternative proceeding seeking the same remedy that was denied in the earlier proceedings”.
 
29.	I find that the Plaintiff has abused the Court’s process by commencing a multiciplicy of proceedings.
  
F.	REPRESENTATIVE ACTION

30.	One of the orders of 5th July 2019 dismissing the proceedings was that the Plaintiff does not have standing to institute the proceedings on behalf of the Waffes Clan which amount to an abuse of process pursuant to Order 5 Rule 13 (1) (a).

31.	The Plaintiff claimed to be the leader of the Waffes Clan of Babuaf village/Tribe and represented the clan in that capacity.  Plaintiff deposed an affidavit with a list of names of the members of the Waffes Clan annexed to it. However, the Plaintiff has not produced any “Letter of Authority” or “Consent” or anything of that nature from the members of the Waffes Clan as a proof that he has been duly appointed and/or authorized to represent them in the proceedings.  In a representative class action such as this, consent of every member of the group having the similar interest in the proceedings is vital.  Each member of the group or clan must give his or her expressed consent in writing authorizing that person to represent them.  This also includes any instructions and/or briefs rendered to him or the Counsel representing them in the proceedings.  The onus is on the person claiming to represent the group to satisfy the Court that he has the requisite authority of the group to represent them.  Failing that, he does not have standing to institute or defend any action on behalf of the group. See: Lupia v ExxonMobil PNG Ltd [2016] PGNC; N6484.

Order 5 Rule 13 (1) provides for representative action in the following terms:

“Where numerous persons have similar 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”. 

32.	The rules on representative action or representative proceedings is derived from equitable practice which permit a person to represent a group of plaintiffs or defendants having the same interest in the litigation. 

33.	Representative class action in this jurisdiction is quite common especially in matters involving customary landowners.  Land in PNG is mostly communally owned thus the informed consent of all members of the landowning clan is necessary in any dealings on the land.  Disputes arising out of the land or disputes relating to compensation or royalties payment etc. requires the participation of all landowners.  Some disputes often ended up in Court and in most cases, the landowners are represented by an individual such as a clan leader or a village chief or someone of standing in the community.  For purposes of legal proceedings, the clan leader or chief must be properly authorized by the landowners to represent them, a practice that is well settled in this jurisdiction.  Failing that he does not have a standing to represent the group or the clan notwithstanding the fact that he might be a leader or a chief of the clan by custom.  The requirement came about as a result of some bitter experiences in the past whereby certain individuals claiming to be leaders and/or spokespersons and pretending to act for the landowners ended up enriching themselves from monies meant for the landowners.  The requirement for proper authorization or consent has become an established practice and also extend to lawyers acting for the landowners that every intending plaintiff must give their specific instruction evidenced in writing to their lawyer to act for them.  And the authority to represent them must be filed in Court as proof of such authorization to give standing to the lawyer to commence and/or defend proceedings.

34.	The Supreme Court in Simon Mali v. Independent State of Papua New Guinea (2002) PNGLR 15 made it abundantly clear, amongst others, that in all actions or proceedings of a representative nature, all of the intended plaintiffs must be named and duly identified in the originating process and pursuant to Order 5 Rule 8, each and every intending plaintiff must give specific instructions evidenced in writing to their lawyers to act for them.  The decision was reaffirmed later in Tigam Malewo v. Keith Faulkner (2009) SC 960. 

35.	In Eliakim Laki v, Maurice Alaluku, Secretary for Lands [2000] N4158 adopted later in Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674 the Court held that; “any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the Court to show that he was properly authorized by them to file proceedings as a class representation.”  
See also: Louis Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158.

36.	In the present case, the Plaintiff did not produce any such letter of authority or consent evidenced in writing by each and every member of the Waffes Clan stating that he had their full authority and/or consent to represent them, hence the standing to bring proceedings on their behalf.  Furthermore, there is also no evidence suggesting that individual clan members who are plaintiffs in this case gave specific instructions evidenced in writing to him or Counsel to act for them.  It may well be that the Counsel may have obtained instructions from the Plaintiff himself but that does not necessarily mean that he has received instructions from each and every members of Waffes Clan who are equally plaintiffs in this proceedings.  Each plaintiff must give instructions evidenced in writing.  This did not happen in this case. See: Simon Mali v. The State (supra). 

37.	The Defendants on the other hand submitted a list containing names of the members of the Waffes Clan.  The list also contained names of the some of the people named as plaintiffs in the current proceedings (OS No. 116 of 2019) submitted by the Plaintiff.  According to the First Defendant Judah Utin in his affidavit filed on the 5th April 2019, claimed that he represents 269 clan members of the Waffes Clan.  He also provided a ‘Letter of Authority’ signed by all the members of the clan to represent their interests in the court proceedings in his capacity as Chairman of Waffes ILG Inc. against the Plaintiff Yakam Maleyaki and another Ezra Kwako both of whom, according to the Defendants, have been illegally representing the Waffes Clan and the Babuaf Tribe’s interests regarding the Wafi-Golpu Project without the consent of the clan members. 

38.	It became obvious to me that the same people are involved both as plaintiffs and defendants in the numerous proceedings filed.  How would that make for an adversarial system that we are all too familiar with that requires two totally different parties altogether, one sues and the other defends in a law suit. 

39.	Based on materials placed before me, I find that the Plaintiff is not duly authorized and does not have the expressed consent of the members of the Waffes Clan to represent them in this proceedings pursuant to Order 5 Rule 13 (1) and therefore, he has no standing to institute this proceedings. 

G.	FINDINGS

40.	I make the following findings:

(a)	I am not satisfied with the explanation provided by the Plaintiff for his non-appearance on the 5th July 2019. Plaintiff has not provided a reasonable explanation to the satisfaction of the Court of his absence. 

(b)	I find the substantive proceedings trivial and vexatious and does not disclose a reasonable cause of action and is an abuse of Court’s process pursuant to Order 10 Rule 9A (15) (2) (a) (d) & (e) and Order 12 Rule 40 (a) (b) & (c). 

(c)	I find that the Plaintiff has abused the Court’s process by commencing a multiciplicy of proceedings. 

(d)	I find that the Plaintiff is not duly authorized and does not have the expressed consent of the members of the Waffes Clan to represent them in this proceedings pursuant to Order 5 Rule 13 (1) and therefore, he has no standing to institute this proceedings.  

H.	RULING

(i)	  Plaintiff’s motion is refused.

(ii)	  Plaintiff to pay for the Defendant’s costs to be taxed, if not agreed.

Orders Accordingly
__________________________________________________________
Chillion Lawyers:	 	Lawyers for the Plaintiff
Ketan Lawyers:		Lawyers for the Defendants