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Kakiyus v Guambelek [2020] PGNC 129; N8329 (20 May 2020)

N8329

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (WS) NO. 14 OF 2020

BETWEEN:
JACK KAKIYUS for and on behalf of HIMSELF and 480 SEPIK SETTLERS OF BULOLO AND THEIR WIVES & CHILDREN
Plaintiffs

AND:
TAE GUAMBELEK as BULOLO DISTRICT ADMINISTRATION
First Defendant

AND:
PATILLIAS GAMATO as the then MOROBE PROVINICAL ADMINISTRATOR
Second Defendant

AND:
MOROBE PROVINCIAL GOVERNMENT
Third Defendant

AND:
INSPECTOR PIUS MOI as BULOLO POLICE STATION COMMANDER
Fourth Defendant

AND:
CONSTABLBE CARITAS FORFIN as CRIMINAL INVESTIGATION OFFICER
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Madang: Narokobi J
2020 : 14 May,20 May

PRACTICE AND PROCDURE - Application to transfer proceeding

Held:

1. Decision to transfer is discretionary matter for the courts by way of an application by a party or on the court’s own volition.
2. The test to apply when deciding whether to change court venue of proceedings under Order 10 Rule 2(2) is: Where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court?
3. The onus is on Applicant to show that the balance of convenience based on the above test, satisfies the change of court venue.
4. The factors to consider when deciding on the interest of the parties include the following, but are not limited to them:
   
   • The place where the cause of action arose;
   • Where the witnesses are located;
   • The costs to the parties;
   • Ability of parties to obtain legal representation at a certain location, including representation under Order 23, rule 6 (b) and (c) of the Human Rights Rules.
     
5. An order for change of venue can be made on the courts own initiative bearing in mind the efficient administration of justice.
   

Cases Cited:
Papua New Guinea Cases:

Paula Yayabu v Lawyers Statutory Committee (2005) N2906
Titus Newman v Melpa Properties Ltd (2017) N7069

Overseas Cases:

National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434

Counsel:

Mr. C. Kalake, for the First Defendant
Mr. S. Asivo, with the leave of the court, for the Plaintiffs

20^th May, 2020

1. NAROKOBI J: INTRODUCTION: The First Defendant filed an application by way of Notice of Motion dated 14 May 2020 seeking orders under Order 10 rule 2(2) of the National Court Rules to transfer the proceedings from the Madang National Court to the Lae National Court.
   
2. The Application was filed as an urgent application and was short served.
   
3. Mr Asivo who represented the Plaintiffs with leave of the court did not object to the short service and I proceeded to hear the matter.
   
4. A similar proceeding was originally filed on 19 October 2015 as a Human Rights Application in HRA 239 of 2015, Jack Kakius and 3,400 Bulolo Settlers v Tae Gambalek – District Administrator, Bulolo District, Patilias Gamato, Provincial Administrator, Morobe Province and The State (hereafter HRA 239).The claim was filed by way of Form 124 of Order 23, R7(1)(c ) of the Human Rights Rules.
   
5. The claim in that proceeding was that since they were displaced from their usual place of residence and placed in a care centre, they were not provided their basic necessities, and were not able to access basic services such as education for their children.
   
6. The Plaintiffs complaint in HRA 239 was filed on 19 October 2010.
   
7. On 1 March 2016, the court granted leave to the plaintiffs to withdraw their proceedings. It is not clear from the court file, why the proceedings were discontinued.
   
8. On 28 April 2020, the Plaintiff filed the present proceedings, HR (WS) No 14 of 2020, Jack Kakiyus for and on behalf of Himself and 480 Sepik Settlers of Bulolo and their wives and children v Tae Guambelek as Bulolo District Administrator, Patilias Gamato as the then Morobe Provincial Administrator, Morobe Provincial Government, Inspector Pius Moi as Bulolo Police Station Commander, Constable Caritas Forfin as Criminal Investigation Officer and the State by way of a writ of summons and a statement of claim. Although the proceeding emanated from the same ethnic clash in HRA 239, and pleads breach of human rights, the factual basis for the cause of action is somewhat different to the one in HRA 239.
   
9. The present proceedings allege that there was an ethnic clash in Bulolo, Morobe Province on 22 August 2010 and the destruction of their property occurred in the presence of state authorities, including the police, and the authorities watched on and did not prevent the attack, as is required of them by law. In essence, the Plaintiff allege that the state and its agents and representatives did not fulfil their duty of care to them to protect their human rights and they were therefore negligent.

Present Application

10. The First Defendant relies on Order 10 r2(2) of the National Court Rules, which is in the following terms – “...the court may, on the application of a party or of its own motion, appoint some other place within Papua New Guinea for the trial of any proceeding.”
    
11. The First Defendant also relies on Practice Direction 1 of 1997, but abandoned it after it was brought to his Counsel’s attention that this Direction is no longer in operation (see Paula Yayabu v Lawyers Statutory Committee (2005) N2906).
    
12. In support of the application, the First Defendant relies on his own affidavit filed on 14 May 2020.
    

Evaluating the Parties Arguments

13. The First Defendant points out the following factual matters in support of the application.
    
14. Firstly, he says in paragraph 3 of his affidavit that most of the plaintiffs and the First, Second, Third, Fourth and Fifth Defendants are all residing in Bulolo and Lae of Morobe Province respectively, and that this matter should have been filed in Lae, Morobe Province instead of in Madang Province for the convenience of all parties. The geographical location and distance of travel can affect the parties from attending court proceedings in Madang.
    
15. Secondly, the First Defendant says that it is a very costly and expensive exercise for parties residing in Bulolo and Lae to travel to Madang and Lae (from Bulolo) to attend each of the court proceedings.
    
16. Thirdly, the First Defendant says that Bulolo is a hotspot for Covid-19 and if there is an outbreak, the parties will not be able to travel out of the District to attend the case.
    
17. The Plaintiffs did not rely on any affidavits, understandably so, because of the short service, but makes the following assertions. I say assertions because the Plaintiffs did not file any affidavits in reply.
    
18. Firstly, the Plaintiffs are prepared to meet the costs to travel to Madang, and that if anything, it should be the Plaintiff who should be concerned about the costs, and in this case, they are prepared to meet the costs.
    
19. Secondly, the Plaintiffs assert that due to the fact that the cause of action arose in Bulolo out of an ethnic clash, they fear being intimidated if the file is transferred to Lae.
    
20. Thirdly, the Plaintiffs say that a similar application was filed previously in HRA 239 to transfer the file but it was refused, and the matter remained in Madang involving the same cause of action. I have not been able to confirm this from the court records, and so I do not take this into account.
    
21. Fourthly, the Plaintiff says that Madang National Court has an established reputation to deal with human rights matters, and since this is a human rights matter, they felt they would receive a fair hearing in Madang.
    
22. The Plaintiff’s concludes by stating that Covid-19 has subsided and there are no more known cases and the State of Emergency will be uplifted in the beginning of June 2020.
    

Analysis

23. I have not been assisted with any case authorities by Counsel and Mr Asivo on the relevant test I am to apply to decide when applying Order 10 rule 2(2) of the National Court Rules. In my research, I have come across two cases, Titus Newman v Melpa Properties Ltd (2017) N7069 and Paula Yayabu v Lawyers Statutory Committee (2005) N2906 dealing applications to transfer.
    
24. In Titus Newman v Melpa Properties Ltd (2017) N7069, the court adopted the test in the Australian case of National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 83 ALR 434 to address its mind on the question of whether to transfer the proceedings.
    
25. The test is: “Where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court?”
    
26. With respect, I am in agreement with his Honour Hartshorn J, and conclude that this test is suitable to the circumstances of the country, in terms of the efficient administration of justice and balancing the interest of parties and I therefore adopt this test in this matter.
    
27. In National Mutual Holdings Pty Ltd v Sentry Corporation at para 43 (referred to at para 11 of Titus Newman v Melpa Properties Ltd), the court made the following relevant observation:
    

“The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances.

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the court for an order .... as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the court to such matters before directing that the proceeding should continue at a different place.

The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the court? It cannot and should not, in our opinion, be defined more closely or precisely.”

28. I note that in Paula Yayabu v Lawyers Statutory Committee, the court was persuaded by the following considerations:
    

“As a resident of Lae, the Plaintiff was entitled to and could have filed the proceedings in the Lae National Court. However, she exercised her right to instruct lawyers in Port Moresby who filed proceedings in Waigani. Now that her lawyer has ceased to act for her, she is facing great difficulty in terms of availability of time, travel arrangements, costs and the efficient running of her sole legal practice, in attending to the proceedings in Waigani. In my view it is fair that the substantive proceedings be transferred to Lae.”

29. In Titus Newman v Melpa Properties Ltd, the following consideration persuaded the court to transfer the proceedings:
    

“13. After considering the various factors raised by the defendant, particularly that the cause of action arose in Mount Hagen, that the property the subject of the proceeding, the witnesses of the parties and the addresses of the parties are also there, I am satisfied that these factors constitute a sound reason for there to be a change in venue from Waigani to Mount Hagen.”

30. Turning my mind now to the facts of this case, I ask myself what factors speak in favour of the First Defendant. They are that the cause of action arose in Morobe Province, the witnesses and parties are residing in Morobe, and that it would be costly defending this case from Madang. They have also raised their concerns about Covid-19.
    
31. Whilst I agree with the First Defendant, I am of the view that it is not yet appropriate to change the venue of the courts, to ensure that interest of all parties are catered for at this stage.
32. In examining the cause of action in the statement of claim, the plaintiff is required to prove that state authorities were present at the scene of the ethnic attack and did not protect the human rights and freedoms of the plaintiffs. This will not require, for instance the necessity of the court to visit the scene of the incident to establish the breach of human rights. It can be proven through the tendering of affidavit or oral testimony of witnesses. Pleadings have also not closed yet to ascertain what facts are in issue.
    
33. As to the costs of the defendants traveling to attend court proceedings, with respect, this is a misunderstanding of the court process. The First Defendant is not required to attend every court hearing, unless he is required to be specifically present by an order of the court. He has instructed a lawyer, who will appear on his behalf. Again the proceedings have not reached the trial stage yet, where he may be required to attend as a witness.
    
34. What about the Plaintiffs? It is the choice of the Plaintiff to decide the venue to commence proceedings so long as the court has jurisdiction to hear the matter, and this should not be held against them. In Titus Newman v Melpa Properties Ltd the court said at para 14:
    

“14. The plaintiff decided to commence this proceeding in Waigani and that decision should carry weight. The plaintiff has not given reasons why he decided to commence this proceeding in Waigani and there is no onus upon him to do so. The defendant has not submitted that, and there is no evidence to the effect that the decision of the plaintiff to commence in Waigani was capricious or for any untoward motive.”

35. With respect, this observation applies to the Plaintiff in the present proceedings. There is no evidence that the Plaintiff chose to file proceedings in Madang for any untoward reason(s). Although the Plaintiff says that they have decided to file proceedings in Madang because of the Madang National Courts reputation to deliberate on human rights matters, I do not think this reason should have more weight than the other factors alluded to above, as all National Courts sitting in any province in Papua New Guinea are conferred jurisdiction to consider cases for alleged violation of human rights.
    
36. In the preparation of the case for trial, the first, second and third defendants would be in a position to instruct a law firm in Madang to represent them, if they are not able to travel to Madang. Certainly for the fourth, fifth and six defendant, there is an office of the Solicitor General in Madang, who can represent them. They were not served the Application and are not represented in the hearing of the application. I do not know what their position is.
    
37. If there was a lockdown as a result of Covid-19, this would be a situation beyond the control of all parties, and I note that Practice Direction 2 of 2020 issued by the Registrar allows for the filing of documents via electronic mail, and making submission via telephone conference, so this would not affect the First Defendant, should such a situation eventuate.
    
38. When evaluating the financial position of the parties, I am inclined to infer that the financial detriment of the Plaintiff to have the case dealt with in Madang would be greater than that of the First Defendant, who has the employed lawyers of the Morobe Provincial Government to represent them. The plaintiffs are prepared to run the case here in Madang. It is the plaintiff’s choice and they do so to their own consequence.
    
39. I am not in a position to accept or reject the Plaintiff’s contention that Madang is a neutral ground as the situation is still tense in Bulolo. This ground may be raised later, if the issue of court venue arises and the court is assisted with supporting affidavits. The first defendant’s rebuttal that the matter can be conveniently heard in Lae, some distance from Bulolo does makes sense.
    
40. To meet the ends of justice, the court observes that the plaintiffs have a representative, Mr Asivo. He has been granted leave to represent them pursuant to Order 23, rule 6(b) and (c) of the Human Rights Rules as a “person acting on behalf of a person who is under a disability or is unable to fully and freely exercise their right to bring an application for enforcement of their human rights or freedoms...”. He has represented other citizens in their human rights applications at the Madang National Court pursuant to leave of the court under the Human Rights Rules. They have decided to ask him to represent them. He is assisting them, and it would affect their representation if the case were to be transferred to Lae, in terms of meeting his costs to travel to Lae whenever there is a court hearing. There may be a time when even the Plaintiffs would consider that it is in their interests to pursue their claim in Lae.
    
41. Having said this, it does not mean that should circumstances change in the future; a further application can be made to transfer the matter to Lae. After the close of pleadings, and filing of all necessary affidavits, and if cross-examination is required, it would necessitate witnesses traveling to Madang, and may mean that it would be necessary to change the venue of the court. To do so would meet the requirement to “meet the ends of justice in the determination of the issues and the efficient administration of justice...”. We have not reached that stage yet.
    
42. Order 10 rule 2(2) speaks of the court determining the place of trial. The proceedings have not progressed to trial. The Defendants are yet to file their Defence, and the pleadings have not closed.
    
43. At this preliminary stage, the proceedings can be most conveniently conducted in Madang, bearing in mind the interests of all parties and the ends of justice.
    
44. The National Court Rules allow the court to transfer the proceedings on its own volition (Order 10 rule 2(2)) and this can happen at any time. As Hartshorn J stated in Titus Newman v Melpa Properties Ltd, this is an unfettered discretion.
    
45. I therefore order as follows:
    
    1. Application to transfer the proceedings is refused;
    2. Parties are at liberty to apply to court to transfer the proceedings at the close of pleadings;
    100. Should there be any change in circumstances, any party is at liberty to apply to court to transfer proceedings, on three clear days notice to all the other parties;
    4. In future, the court may on its own volition, pursuant to Order 10 rule 2(2) of the National Court Rules order the transfer of the proceedings to Lae in the interests of efficient administration of justice;
    5. Each party will bear their own costs for this application;
    6. The entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
In house Lawyers, Morobe Provincial Government: Lawyers for the First Defendant