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Marea Land Group Incorporated v Tkatchenko [2022] PGNC 577; N10126 (13 December 2022)

N10126

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 925 OF 2018


MAREA LAND GROUP INCORPORATED
Plaintiff


V
HONOURABLE JUSTIN TKATCHENKO IN HIS CAPACITY AS THE MINISTER FOR LANDS & PHYSICAL PLANNING, URBANIZATION AND APEC 2018
First Defendant


AND
IRUNA ROGAKILA IN HIS CAPACITY AS THE REGISTRAR OF INCORPORATED LAND GROUPS
Second Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND
NEW BRITAIN PALM OIL LIMITED
Fourth Defendant


AND
PHILIP VITOLO
Fifth Defendant


AND
KENNY SONNY
Sixth Defendant


AND
HERMAN PASI
Seventh Defendant


AND
VINCENT TOVILI
Eighth Defendant


Waigani: Miviri J
2022: 06th & 13th December


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Order 16 Rule 13 (13) (1) & Order 12 Rule 40 (1) (a) (b) (c) & (d) NCR – Frivolous & Vexatious – No Reasonable Cause of Action – Materials Relied – Whether Sufficient – Balance Not Discharged – Motion Refused – Cost follow event.


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Order 16 Rule 13 (13) (1) & Order 12 Rule 1, 8 (4) & (5) NCR – Variation of Order – No Basis to – Materials Relied – Insufficient – Balance Not Discharged – Motion Refused – Cost follow event.


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion Plaintiff By – Security for Costs – Order 1 Rule 7 Dispensation of requirements Service – Section 155 (4) Constitution – Orders as Necessary to Do Justice –Defendants 5th to 8th Give Security for Costs – Materials Relied – Balance Discharged – Security for Costs Ordered – Motion Granted.


Cases Cited:


Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346
Charlie v Paki [2021] PGSC 60; SC2134
Tupou v Tolopa [2020] PGNC 486; N9088
Mango v Chow Po Khoon [2005] PGNC 68; N2907
Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 43; N3144
Logona v Piokole [2015] PGSC 85; SC1618
Takori v Yagari [2007] PGSC 48; SC905
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Aihi v The State (No 1) [1981] PNGLR 81
Yarlett v New Guinea Motors Ltd [1984] PNGLR 155


Counsel:


H. Leahy, for Plaintiff
I Emmanuel, for Fourth - Fifth Defendant
N. Yano, for the State Defendant


RULING

13th December, 2022

  1. MIVIRI, J: This is the ruling on the Notice of Motion of the fifth defendant of the 17th October 2022, whereby he seeks pursuant to Order 16 Rule 13 (13) (1) and Order 12 Rule 40 (1) (a) (b) and (c) of the National Court Rules dismissal of the Judicial review proceedings here instituted by the plaintiff.
  2. The motion derives from Order 13 (13) (1) of the Rules. But the jurisdictional basis is Order 12 Rule 40 (1) (a) (b) and (c) of the national Court Rules, frivolity etc. They contend that the plaintiff does not have;- (a) no reasonable cause of action disclosed; and that (b) the proceedings are frivolous or vexatious; and (c) an abuse of the process of Court, on the basis of which the court may order staying the proceedings, or its dismissal generally or in relation to the relief claimed as here.
  3. Second order in the alternative prayed by the 5th to the 8th Defendants is to raise that the Court was misled in the decision it made of the 03rd December 2021, which decision has had the effect of the parties going around in circles. In essence this is a matter that questions the decision that this Court made which will not be the subject of determination here. The National Court cannot review its decision, it is a matter if the applicant feels aggrieved, must be the subject of an appeal to the Supreme Court. By raising it here it is an abuse of process viewed in the light of the fact that all matters as is the case here are the subject of the process of appeal. And this Court does not have the jurisdiction to review its own determination. It has been determined and laid to rest. And any dispute against it will be by the usual with leave to come out of the time limitation given to: Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346. As it is it is without merit and will not succeed in favour of the applicant 5th to 8th Defendants. Consequently, that order will not flow as pleaded in favour of the Applicants.
  4. Because for the application to fall in favour of the applicant, they must demonstrate and discharge the balance beyond that of preponderance, that the cause of action is obviously and almost incontestably bad such that it should be dismissed: Charlie v Paki [2021] PGSC 60; SC2134 (17 August 2021). That the Plaintiff’s cause of action is untenable and cannot possibly succeed given, and he is bound to fail if the matter went to trial. By the same it is vexatious because it amounts to harassment of the defendants. They have been put to trouble and expense of defending this proceeding which cannot possibly succeed: Tupou v Tolopa (2020) N9088 (5 November 2020) which approved and endorsed Mango v Chow Po Khoon [2005] PGNC 68; N2907 (14 October 2005). And it is an abuse of process within the meaning set out in Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 43; N3144 (5 July 2007).
  5. And it is trite that; “Multiple proceedings arising in which similar cause of action and claim for relief are prosecuted from the same factual circumstances and involving the same parties can amount to abuse of process of the Court and stand liable to be dismissed for that reason. Yet the decision to dismiss an action for abuse of process in such circumstances is the ultimate penalty and should not be readily granted unless there are clear grounds warranting dismissal. It is impractical to prescribe the type of actions which would constitute a clear case of abuse of process. Without being exhaustive, we would suggest that an example of a case that would call for the ultimate penalty of dismissal of proceedings would be in a case where the plaintiff chose to increase his chances of success if the earlier proceedings were found to be unsuccessful by mounting multiple proceedings in the same court, arising from the same set of factual circumstances, adopting the same or different mode of commencing proceedings, under the veil of different name (personal or corporate), splitting the cause of action into similar causes of action that in essence are similar, claiming in essence the same or similar relief. If the plaintiff hopes to achieve some unfair advantage in that if the earlier proceeding is dismissed by one judge, the action will be maintained before the same or another judge of the same court, the proceedings are clearly an abuse of court process and stand to be dismissed for that reason. ”Logona v Piokole [2015] PGSC 85; SC1618 (30 October 2015)
  6. In my view this is the law applicable here and the applicant must show by his evidence relied to succeed that indeed the action instituted by the plaintiff must fail as disclosing no reasonable cause of action. It is frivolous vexatious and untenable against defendants. That they are harassed and are unduly in court over an action that does not hold water. That it is an abuse of process by the plaintiff and therefore the action must be dismissed. The latter is the ultimate penalty and must not be readily exercised Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). It is an exercise of judicial discretion warranted by clear facts that leave no other hypothesis other than dismissal as pleaded.
  7. So has the applicant discharged that this is a frivolous and vexatious action against him in the hands of the plaintiff. Further is this an action that is untenable against the defendants? Is it a similar action instituted against him clearly abusing the process of court disclosing no reasonable cause of action and therefore must be dismissed warranted by the facts and the evidence relied.
  8. In so pursuing the applicant relies on the affidavit of Philip Vitolo filed of the 17th October 2022 and then of the 23rd January 2019. Secondly of the affidavit of Herman Pasi filed of the 17th October 2022. And lastly of Lillian Holland of the 04th June 2019.
  9. Philip Vitolo’s evidence of the17th October 2022 states that he is the chairman of the Mami ILG. Of the 9 landowning clans he is from the Kerakera clan. That the application now is necessitated by the failure of the lawyer for the state from the office of the Solicitor General who represents the first, second, and third defendants. Annexures “A1” and “A2” are letters under hand of the Lawyers of the fifth to eight defendants who questions the letter by the Solicitor General annexure “B”. It is important to set this annexure out in full in all material particulars emanating from the office of the Solicitor General against the conduct of the lawyers for the fifth to the eight defendants. The letter is dated the 28th September 2021 under hand of N Yano Senior Legal Officer of that office. It is addressed to Emmanuel Lawyers and subjected; OS No 925 of 2018- Mararea Land Group Incorporated v DLPP & The State. It begins, “I refer to your letter to Pacific Legal Group dated 23rd September 2021 which was copied to our office. We note that you have filed another proceeding OS No. 194 of 2021 (IECMS)- Philip Vitolo v Mararea ILG & ors. We noted that there were some orders issued and your attempt to dispense with the requirement of service of the documents was refused. The other parties never had the benefit of being represented and given an opportunity to be heard especially about this new proceeding which has the same parties involved.

We have never been served with the court documents yet and we do not know the nature of the proceeding you have filed. Be that as it may, with all due respect we see this as a deliberate tactic you are trying to play only to delay the main proceeding OS (JR) 925 of 2018. You have taken this matter all the way to the Supreme Court in SCA No 47 of 2020 but your appeal was dismissed and the matter was reverted back to the National Court to proceed to trial.

However now you are attempting to deviate from the main proceeding again and filing similar proceeding concurrently. This amounts to duplication of proceeding or multiplicity of proceeding and you know that it is an abuse of process. Too many proceedings have been filed so far on this same matter and the files have grown exponentially and documents are unnecessarily building up.

We have corresponded with you and have expressed this concern several times but you are still pursing other avenues without concentrating on the main issues before the Court in OS (JR) No. 925 of 2018. Why can’t we proceed with the substantive hearing and you can take further actions after determination of this original proceeding?

We await service of the court documents in the new proceedings OS No 94 of 2021 so we will respond accordingly when the matter returns on the 04th of October 2021.”


  1. And the letter is signed by the Solicitor General action officer N Yalo now before the Court in the hearing today. This letter seals what is set out by annexure “C” the Supreme Court in SCA No 162 of 2021 Philip Vitolo v Mararea Land Group Incorporated & 4 ors. And the other annexures from “D” to “I” do not advance his cause as they were not the subject of the leave obtained by the plaintiff and cannot be introduced by the defendant. The composition registration of the Mararea Land Group Incorporated is and was not the subject of leave granted for Judicial review. It will not be raised here without that fact now because Order 16 Rule 3 (1) of the National Court Rules is specific, “An Application for Judicial review shall not be made unless the leave of the Court has been obtained in accordance with the Rule.” Because that was presumably a decision by a Public Official in that role of the Registrar of Incorporated Land Group. Without leave it cannot be raised here by the fifth to the eight defendants. Effectively it lays to rest the argument of the fifth to the eight defendants here and it would not advance their cause of action because it is defeated and dismissed.
  2. And further the letter confirms the process in law in the matter that on the 18th December 2018 the plaintiff was granted leave to make the application for Judicial review of the decision of then Minister for Lands and Physical Planning Honourable Benny Allan made on the 18th June 2016. Then on the 04th April 2019 further leave was granted to review the decision of the First defendant made on the 31st October 2018. Which resulted in leave granted for the amendment to the Statement in support to accommodate. And matter has been progressed to trial. These facts are supported by the evidence in the affidavits of Herman Leahy of the 18th of November 2022 filed the 23rd November 2022. Which evidence is further supported by that of Mrs Selina Thompson sworn also of that same date and filed. And a further affidavit of Herman Leahy of the 31st October 2022 filed that same day. All are common ground between both sides of the case. Because the evidence relied of by the fifth to the eight defendants of Philip Vitolo of the 17th October 2022, and Herman Pasi of that same day, all have common ground with that of the plaintiff that the proceedings has progressed to trial. Which is clear by the decision of this Court set out by annexure “C” to the affidavit of Mrs Selina Thompson. Order number 3 made was Prehearing conference was now set for Monday 13th December 2021 at 9.30am at the directions hearing then. And fourthly pursuant to Order 16 Rule 13 (8) (1) (a) the Correctness of the Review Book is confirmed 26th July 2019 as it is, as of the last order of the Court of the 25th of April 2019. And the Plaintiff’s costs here will be paid by the fifth defendant on a Solicitor Client Basis by or before the expiration of 7 days which expires on Tuesday 15th December 2021.
  3. The effect of this order is that prehearing conference was set for Monday 13th December 2021 which is one year ago. The delay in giving heed to this is explained out by the affidavits of all the witnesses on either side of the dispute. There has been continuous interlocutory actions instituted by the 5th to the 8th Defendants that have come out with orders against them in each case challenged. It means that the latter have invoked with persistence to no avail in their favour. Rather than resort to allowing the plaintiff to run its case on each case where leave has been granted for judicial review it has resorted to in the manner set out by the evidence above.
  4. And in this regard the affidavits of Philip Vitolo in both instances, Herman Pasi and Lillian Holland show out the process that the 5th to the 8th Defendants have followed in the matter. On each occasion they have not attained in favour in the various proceedings in court that they have instituted, right to the doors of the Supreme Court. It is not clear as to how that would amount to no reasonable cause of action instituted on the part of the Plaintiff if 5th to 8th defendant’s own actions have failed. And for the same where would there be no reasonable cause of action if it is their actions that have either not gone the full extent to attain what they have sought out there. And further where would the frivolity and vexatiousness be in the way they have ended up against the plaintiff. Given also that leave has been given the plaintiff to review the decision of the Minister for lands then of Honourable Benny Allan of the 18th August 2016. Again, on the 04th April 2019 Leave was further accorded the plaintiff by the National Court to review the decision of the Honourable Justin Tkatchenko made 31st October 2018. Leave in both cases were given prima facie on evidence that there was an arguable case. Reasonable cause of action demonstrated as opposed to an action that was intended to intimidate unnecessarily bring the defendants into court over a matter that had no basis either in law or fact. It cannot be vexatious given.
  5. And therefore, in my view considering all, the 5th to the 8th defendants’ motion does not hold water. The balance is tilted to refuse the motion outright and costs will follow the event against the applicant’s 5th to 8th Defendants if not agreed to be taxed. Which points now that directional Orders initially made of the 3rd December 2021 are outstanding against the third defendant. They must be heeded unless properly varied within the terms of PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). Primarily this Court on the 03rd December 2021 amongst others made the following orders relating to this present proceedings:
    1. Prehearing conference is now set for the Monday 13th December 2021 at 9.30am at the directions hearing of the Court.
    2. Pursuant to order 16 Rule 13 (8) (1) (a) the correctness of the review book is confirmed 26th July 2019 as it is, as of the last order of the Court of the 25th April 2019.
    3. The plaintiffs Costs here will be paid by the fifth defendant on a Solicitor Client basis by or before the expiration of 7 days which expires on Tuesday 15th December 2021.
  6. This orders outstanding against the 5th to the 8th Defendants confirm that the proceedings are genuinely before this Court and prehearing conference was not confirmed and heeded. It would have gone to a hearing pursuant. Because the correctness of the review book was confirmed 26th July 2019. And there is no evidence that the Costs ordered set out above was ever paid since the 15th December 2021. No evidence has been filed by the 5th to 8th Defendants that they have complied with it ordered 03rd December 2021. It means viewed in the light of the motion by the plaintiff for security for costs, it makes sense actions have been filed by them, but costs remain outstanding yet to be paid set out above. And the actions initiated by the 5th to the 8th defendants is set out by the evidence of both witnesses on either side of the case. And each demonstrates no real utility except being frivolous and vexatious in themselves against the action of the plaintiff. No substantial or reasonable cause has been shown to maintain by all the evidence set out above. These are apparent from the discussion set out above leaving nothing but dismissal of the motion. And given it would be necessary to pin the applicant down to a commitment to pay what is due to the plaintiffs before he institutes or engages in any new action filed in the matter. Because this action derives initially from 2016 and this is now 2022 going into 2023. It would be 6 years running into 7 years in the making. And the substantial notices of motion remain outstanding in the matters leave granted. They will proceed to trial and will be called up for confirmation of that fact Monday 06th February 2023 at 9.30am.
  7. On the converse the plaintiff has a genuine issue and cause of action before the Court and given the evidence set out above, he has been driven against his bona fide cause of action by the 5th to the 8th Defendants. The particulars are discussed set out above. Against them is the fact that since April 2019 they have filed four separate challenges in the Supreme Court to which favourable decisions have been obtained not by them but the plaintiff. And on each occasion, they the 5th to the 8th defendants have been unsuccessful and for which they have been ordered to pay the plaintiffs costs amongst others. These are court orders against the 5th to the 8th Defendants that remain outstanding. And which have not deterred them from filing further actions in Court. Genuine causes must have their day in Court. The records here with the evidence show otherwise against the 5th to the 8th Defendants. Who have made no payment out of their own pocket into court. The application by the plaintiff is not oppressive given that what he seeks dates back to 18th August 2016. And the actions of the 5th to 8th Defendants have seriously denied him the process of law on trial to determine his cause of action since. He has instituted the process and obtained leave. He must be allowed to complete that process defended by the 5th to the 8th Defendant not procrastinated by multiple filing of actions that derive no source of Justice, but harassment and intimidation, frivolous and vexatious. Which is the conduct of the 5th to the 8th Defendants. Therefore, as in Aihi v The State (No 1) [1981] PNGLR 81 section 155 (4) will facilitate that by ensuring that his cause of action as to security for costs is heard and determined. Order 14 Rule 25 is cases for security on application by a defendant. And it is against a plaintiff. Here reliance is placed on section 155 (4) to facilitate that there be security for costs paid by the defendant into Court given the facts set out above against.
  8. And reliance is placed upon Yarlett v New Guinea Motors Ltd [1984] PNGLR 155 a defendant made an application pursuant to this rule of the Court. And in considering that application the court held that the application must be made promptly before considerable expense is incurred. Which is what the applicant here the plaintiff is on about. That since the institution of the proceedings the Costs ordered against the defendants have not been paid. Comparatively plaintiff has a bona fide claim not pursued to fruition because of the actions of the 5th to 8th Defendant. In my view substantial injustice is apparent and drawn the plaintiff if his motion is not accorded by that Order 14 Rule 25. And if the interpretation is confined to the defendants and not plaintiffs. Therefore, by section 155 (4) of the Constitution costs for security is ordered in the sum of K 250, 000.00 to facilitate that the 5th to the 8th defendants to pay up front into the trust Account of the Court before they proceed with the institution of any other interlocutory proceedings. The facts circumstances draw out this view and the orders that I now make.
  9. Accordingly, the formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for State Defendants

Emmanuel Lawyers: Lawyer for the Fifth to Eight Defendant

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