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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 122 OF 2022
BETWEEN:
SAM SOI PINTA for himself and for others in Schedule A of the Originating Summons
- Plaintiff-
AND:
DAVID MANAU, SECRETARY FOR DEPARTMENT OF PETROLEUM AND ENERGY
-First Defendant-
AND:
PAUL PANDEA,
CHAIRMAN OF THE EIC COMMITTEE
-Second Defendant-
AND:
DR KEN NGANGAN,
SECRETARY FOR DEPARTMENT OF FINANCE
-Third Defendant-
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fourth Defendant-
Waigani: Tamade AJ
2022; 3rd &7th October
PRACTICE AND PROCEDURE – Defendant’s application to dismiss proceedings – Order 12 Rule 40 of the National Court Rules – frivolous, vexatious, and abuse of the Court’s process – issues raised are not res judicata – pleadings too general and vague – proceedings dismissed.
CIVIL – declaratory orders sought in the Originating Summons – proceedings should be done by way of Judicial Review – unofficial document from Department of Petroleum and Energy – unofficial document inadmissible – failure of Plaintiff’s lawyer to ascertain the veracity of document – Oil & Gas Act, 1998 – Section 178 – Plaintiffs suing as beneficiaries and not project proponents.
Cases Cited
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Employers Federation v Waterside Workers (1982) N393
Robinson v National Airlines Corporation [1983] PNGLR 476
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Pruaitch v Manek [2019] PGSC 123; SC1884
Counsel:
Ms. Karen Nugi, for the Plaintiffs
Mr. Eava Geita, for the Defendants
7th October, 2022
2. The Defendants rely on the Affidavits of David Manau filed on 28 June 2022 and 1 August 2022.
3. The Plaintiffs essentially claim the following reliefs in their Originating Summons filed on 31 May 2022:
4. After filing these proceedings, the Plaintiff obtained urgent restraining orders on 10 June 2022 to stop the Defendants from paying out the said Capped K34 million that is proposed for PDL 3 and 4 areas for infrastructure projects. The matter was argued before the Court in which orders were made for the injunctive orders to extend until the determination of these proceedings. Ms. Nugi of the Plaintiffs, therefore, argues that the issues raised by Mr. Geita of the Defendants are res judicata as matters as to whether the Plaintiffs have a prima facie or arguable case have already been heard by the Court. Mr. Geita on the other hand insists that this application for dismissal looks at the pleadings in the Plaintiffs’ reliefs as pleaded in the Originating Summons and that the evidence relied on by the Plaintiffs do not support the reliefs that the said capped funding of K34 million designated for PDL3 and 4 has been considered by the EIC and has been paid out to successful project proponents of not only PDL 3 and 4 but the pipeline areas and other site areas supporting PDL 3 and 4.
5. I am of the view that the matters before the Court in the application by the Defendants is not res judicata as the grounds for dismissal are specific to the Plaintiff’s pleadings in the reliefs sought in the Originating Summons and as to the specific grounds under Order 12 Rule 40 of the National Court Rules. The hearing on the injunctive orders included the issue of whether there was an arguable case before the Court where the Court is tasked to do a cursory enquiry only into the matter.[1] I am of the view that the principle of res judicata only applies where the issues between the parties have been fully determined by a Court having the authority to do so as can be seen in the case of Telikom PNG Ltd v Independent Consumer and Competition Commission[2].
First Relief Sought in the Originating Summons
6. The Defendants submit that the first relief sought in the Plaintiff’s Originating Summons is misconceived as the Plaintiffs plead that the Capped MOA funding is “only” available to landowners of PDL 3 and 4. Mr. Geita has submitted that the first relief encompasses the entire outstanding capped MOA funding as it is misleading and or vague and ambiguous when it does not specifically relate to PDL 3 and 4 if that was the intention of the Plaintiffs.
7. In the Affidavit of David Manau filed on 28 June 2022, Mr. Manau who is the Secretary for the Department of Petroleum and Energy states that the Gobe oil field which is where the petroleum development licence 3 and 4 is not solely situated in Erave District in Southern Highlands Province where the Plaintiffs are from as PDL 3 and 4 encompasses the oil well heads in Erave District and also installations such as the airfield, operational camp facilities and the oil pipelines traversing the Kikori District in Gulf Province.
8. Ms. Nugi of the Plaintiffs argues that their client should have their day at trial and that they have sufficiently pleaded their case. Ms. Nugi submits that the Plaintiffs are claiming a right as beneficiaries of the PDL 3 and 4 and that ever since the project started, the Plaintiffs have not benefitted from any of the projects intended to be for the benefit of these affected areas. Mr. Geita, on the other hand, submits that there are various benefits emanating from the project be it equity, royalty, etc and in this instance where the claim is referred to the outstanding capped MOA payment of K120 million, these are outstanding commitments by the State that is paid for infrastructure projects within the affected project areas and is screened through the EIC which is set up under section 178 of the Oil and Gas Act.
9. When asked by the Court whether the Plaintiffs are project proponents before the EIC and are aggrieved that their project proposals were not considered? Ms Nugi submits that some of the Plaintiffs have project proposals before the EIC however they are claiming as beneficiaries who are being affected by lack of tangible projects on the ground from the resource. I am of the view that where the claimants are generally landowners and beneficiaries from the project area, any interested landowner can join the proceedings clogging up the parties to the matter which is a reason why applications by other interested parties who claim to be landowners from PDL 3 and 4 have been refused by the Court as their interest to my mind is already covered by the current Plaintiffs. These are persons who also are not project proponents with proposals before the EIC which would place them as having a standing to question how the EIC carried out its’ function to award project grants.
10. I find that from the Affidavit evidence filed by the Plaintiffs, the Plaintiffs are claiming as beneficiaries, and therefore their right if any to challenge the decision of the EIC to award grants is quite remote as unless they are suing as project proponents who were unsuccessful, it would place them at the centre of raising issues about the EIC process and or decision-making rationale of the EIC.
11. In regard to Term 1 of the Originating Summons, I find that in the plain reading of the relief sought, it is too general and vague as it refers to the capped MOA funding made available to the Department of Petroleum and Energy pursuant to the various NEC decisions is only for the landowners of PDL 3 and 4 and not for the general public at large. This therefore would refer to the full capped MOA funding of K120 million made available by the State to the Department of Petroleum and Energy. The pleadings as it is, is misleading as it does not specifically refer to the K34 million made available from the K120 million which is for PDL 3 and 4 however the project footprint goes to include the pipeline areas in Gulf Province as well. I, therefore, find that Term 1 of the Originating Summons is flawed and misleading and therefore shall be dismissed for being a frivolity within the meaning of Order 12 Rule 40 of the National Court Rules.
Term 2, 3, and 4 of the Originating Summons
12. In carefully assessing this matter, the Plaintiffs concerns seem to be general accusations of not benefiting from the petroleum resource project since its inception and not seeing any tangible benefit on the ground. The allegations that only outsiders are benefiting from this infrastructure project grants appear to be a scathing and very generalized allegation and remains an allegation until proven. The Plaintiffs allege that the EIC has not invoked the correct procedure and or had relied on incorrect criteria to award projects under the capped MOA funding for PDL 3 and 4.
13. Term 2 of the Originating Summons refers to any decision by the EIC to enlist companies or proponents who are not from PDL 3 and 4 as per the NEC Decision No. 96 of 2010 is unlawful. Mr. Geita of the Defendants argues that if the Plaintiffs are challenging the process of the EIC in awarding grants for the capped K34 million designated for PDL 3 and 4, such decision was already made in the EIC meeting of 3 February 2022 where the EIC approved project proposals for PDL 3 and 4 as deposed to in the Affidavit of Mr. David Manau. Mr. Geita submits that the Plaintiffs cannot seek such an order through an Originating Summons as they did. The decisions of the EIC should be the subject of judicial review proceedings and should be subject to Order 16 of the National Court Rules. Ms. Nugi on the other hand maintains that such a decision for PDL 3 and 4 has not yet been made as the Plaintiffs have obtained restraining orders to stop any payment from the Defendants.
14. In the Affidavit of Mr. Manau, he states that he is the Deputy Chairman of the EIC, and that Mr. Koney Samuel as the Secretary for National Planning and Monitoring is the Chairman of the EIC as set up under section 178 of the Oil and Gas Act. Mr. Manau gives evidence that the EIC had met on 3 February 2022 and deliberated on project proposals for PDL 3 and 4. Mr. Manau also states that the Second Defendant is incorrectly named in these proceedings as he is not the Chairman of the EIC.
15. In the hearing of the matter, it came to light that there is a document annexed to the Affidavit of Mr. Sam Soi Pinta from the Plaintiffs filed on 2 June 2022 that annexed what appears to be a spreadsheet computer printout of names of entities and proposal figures including recommended amount for funding purportedly obtained from the Department of Petroleum and Energy. Mr. Pinta who deposed to this document is clearly not the author of this document. When asked, Ms. Nugi submits that it was a document given to her clients from the Department of Petroleum and Energy and insists that it is a public document. Mr. Geita on the other hand objects and submits that the document is not signed on the last page by either the Chairman of the EIC and or any other authorized officer from the Department of Petroleum and Energy and therefore it cannot be an official document for public information. When asked by parties whether it could be a working document from the Department of Petroleum and Energy, Mr. Geita responds that he does not know the source of the document and cannot confirm the veracity of such a document. He submits that such a document can be from any corridor within the Department or anywhere else for that matter. Ms. Nugi has not sufficiently addressed the authenticity of this document only to say it is an official document, there is a lot of questions on this document that seem to fall off the back of a truck so to speak.
16. It appears that Mr. Pinta who obtained this document is not the author of this document and therefore he can’t verify the authenticity of this document and the document is clearly inadmissible. I find that this is not a public document that should be available to any person walking through the corridor of the Department of Petroleum and Energy. This appears to be the document that has ignited this case and that has propelled this case as to the Plaintiff’s belief that the entities named therein are outsiders to the PDL 3 and 4 and should not benefit from the capped MOA funding of K34 million. One would think the business of the EIC and or the Department of Petroleum and Energy should not be open to anybody outside the Department and or it’s business should not be done in the corridors of it’s offices. I find that this document is inadmissible as Mr. Pinta is not the author of the document and the document is vague, inauthentic and is flimsy evidence with no scintilla of fact.
17. I find that Terms 2, 3 and 4 of the Plaintiff’s Statement of Claim are misconceived based on a document that the Plaintiffs have picked up from the corridors of the Department of Petroleum and Energy offices without verifying from the Department itself the authenticity of this document and without the Plaintiff’s lawyers doing their due diligence to ascertain the veracity of the document before running to Court.
18. I also uphold the submissions by the Defendants that in these proceedings, the Plaintiffs are challenging the process and the decision of the EIC to grant project funds in regard to the capped MOA funds made available to the Department of Petroleum and Energy. The proper approach would be to file a judicial review proceeding on the decision of the EIC pursuant to Order 16 of the National Court Rules.
19. Order 4 Rule 2(3) applies to proceedings where the Plaintiffs seek a declaration of a right, an immediate injunction etc and Order 4 Rule 3 applies to Originating Summonses where the Plaintiff is seeking a question of a construction of an Act, instrument deed or document or some other question of law and one in which there is unlikely to be any substantial dispute of fact etc, an Originating Summons is more appropriate.
20. In the case of Kekedo v Burns Philp (PNG) Ltd[3], the Supreme Court discussed the importance of judicial review of decisions of administrative bodies which are public bodies that the Court is vested with the power to only review these decisions as to the process and the reasonableness of their decisions however the Court should not intervene until the full statutory or administrative process is complete. Amet J (as he was then) in considering the issue on the statutory remedies available under the subject legislation being the Employment of Non-Citizens Act said this:
“...I believe, therefore, that the legislative intention to oversee the employment or continued employment, cancellation and termination of the employment opportunities of non-citizens, through administrative structures and remedies, should firstly be honoured, and given effect to, by the judiciary, before being encroached upon.”
21. I would adopt a similar sentiment that the intention of the Oil & Gast Act to regulate and oversee various petroleum projects including the subject PDL 3 and PDL 4 through its administrative structures and mechanisms in this case through the EIC pursuant to section 178 should be honoured and given effect to by the judiciary, before being encroached upon. If the Plaintiffs are aggrieved with the manner in which the EIC has awarded the project grants using the wrong criteria, they have a recourse after exhausting any available remedy under the Statute and then approaching the Court through a judicial review process under Order 16 of the National Court Rules. In this case, there is no evidence of the Plaintiff’s addressing this issue with the EIC prior to coming to Court. The Plaintiffs simply insist on throwing the EIC and the Department under the bus so to speak.
22. Also, the fact that Mr. Manau has deposed that the EIC had already deliberated on the project grants for PDL 3 and PDL 4 on 3 February 2022 shows that there is no utility in these proceedings as these proceedings are now redundant and a waste of the Court’s time when the action complained off has already happened. The appropriate recourse is through a judicial review. The Supreme Court said this when considering what is abuse of process in the case of Pruaitch v Manek[4] as:
“In our view, the processes of this Court have been improperly used by the applicants. As Gavara-Nanu, J noted in Michael Wilson v Clement Kuburam (supra) at [25]:
‘The types of abuses of the process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.’”
23. There is evidence in Mr. Manau’s Affidavit filed on 1 August 2022 containing letters from some leaders of the Gobe PDL 3 and 4 who want an end to these proceedings so that the Department of Petroleum and Energy can complete the payments of the project grants for PDL 3 and 4. The Plaintiffs have ventured out on a wrong footing by way of an Originating Summons when they should have proceeded by way of judicial review and there is clearly a reliance on a purported document that they claim is an official document from the Department of Petroleum and Energy when they cannot verify the authenticity of the document and the document is clearly not legitimate. By their conduct in doing so, they have held up other landowner entities who were considered by the EIC in its deliberations on the capped MOA funding for PDL 3 and PDL 4.
24. I find that the reliefs claimed by the Plaintiffs in the Originating Summons filed in these proceedings are misconceived, are an abuse of the Court’s process, and overall, for the reasons stated herein, these proceedings are vexatious and frivolous pursuant to Order 12 Rule 40 of the National Court Rules and shall be dismissed forthwith.
25. The Court, therefore, makes the following orders:
Orders accordingly.
___________________________________________________________
PANG Legal Services: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants
[1] See Employers Federation v Waterside Workers (1982) N393 and Robinson v National Airlines Corporation (1983) PNGLR 476 on principles on grant of interlocutory injunctive orders.
[2] [2008] PGSC 5; SC906 (28 March 2008)
[3] [1988] PGSC 19; [1988-89] PNGLR 122 (13 April 1989)
[4] [2019] PGSC 123; SC1884 (6 December 2019)
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URL: http://www.paclii.org/pg/cases/PGNC/2022/492.html