N10727
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 233 OF 2023

HAMULE NGIAME & TINDALE TEKE OF HIWA KOMA CLAN
FOR THEMSELVES & ON BEHALF OF KOMA CLAN MEMBERS
Plaintiffs

V

DAVID MANAU, SECRETARY, DEPARTMENT OF PETROLEUM
First Defendant

HON KERENGA KUA, MINISTER FOR PETROLEUM
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

SANTOS (PNG) LIMITED
Fourth Defendant

PINA CLAN OF KOMO, HELA PROVINCE
Fifth Defendant

APE TIMOTHY TAMBIAPU FOR HIMSELF AND ON BEHALF OF TUGUBA TUKUTELI TRIBE OF KOMO, HELA PROVINCE
Sixth Defendant

Waigani: Cannings J
2024: 4th, 16th April

PRACTICE AND PROCEDURE – whether proceedings fail to disclose reasonable cause of action or are an abuse of process – National Court Rules, O 12 r 40(1)(a), (c) – motion for summary dismissal of proceedings.

The plaintiffs commenced proceedings in a representative capacity on behalf of members of their clan, seeking declarations that their clan was the customary owner of land that generated land rentals, royalties and other benefits under the Oil and Gas Act 1998. They sought an order requiring the responsible authorities to facilitate payment of outstanding benefits and an injunction to restrain other clans that claimed an interest in the land from interfering with their enjoyment of the outstanding benefits. The first, second and third defendants filed a notice of motion seeking summary dismissal of the proceedings under Order 12 rule 40(1) of the National Court Rules for disclosing no reasonable cause of action and being an abuse of process on grounds that the plaintiffs failed to comply with Order 5 rule 13 of the National Court Rules regarding commencement of representative proceedings and that the proceedings were time-barred under s 16(1) of the Frauds and Limitations Act. At the hearing of the motion the first, second and third defendants relied on four other grounds for dismissal: that a Land Titles Commission decision on which the plaintiffs relied had been declared null and void by the National Court; that the proceedings should have been commenced as judicial review proceedings under Order 16 of the National Court Rules; that a “compromise agreement” executed by landowners in 1993, which did not recognise the plaintiffs’ clan as customary owners of the land, was binding and enforceable against them; and that the question of entitlement to benefits had been settled by a ministerial determination made in 2001 under the Oil and Gas Act, which did not recognise the plaintiffs’ clan as customary owners of the land they claimed to own. 

Held:

(1)	There was substantial compliance with the requirements for commencement of representative proceedings; and the extent to which there was non-compliance did not warrant summary dismissal of the proceedings. 

(2)	The plaintiffs’ cause of action was not caught by s 16(1) of the Frauds and Limitations Act, so the proceedings were not time-barred under that provision.

(3)	Though there was evidence of a National Court order that declared null and void a decision of the Land Titles Commission on which the plaintiffs relied, there was no evidence of the nature of the National Court proceedings which led to the order or the context in which the order was made. Further, there was another decision of the Land Titles Commission which evidently supported the plaintiffs’ claims to ownership of the land, which appeared to be unaffected by the order of the National Court relied on by the defendants. There was insufficient evidence to warrant summary dismissal of the proceedings on the ground that the question of ownership was determined by the National Court order relied on. 

(4)	The principal remedies sought by the plaintiffs were declarations and injunctions, so it was not mandatory to commence the proceedings under Order 16 of the National Court Rules. 

(5)	The plaintiffs do not appear to have been a party to the compromise agreement relied on by the defendants, so its existence was not a proper ground on which the proceedings could be summarily dismissed.

(6)	The 2001 ministerial determination appeared to exclude the plaintiffs from the category of landowners entitled to benefits but questions as to the interpretation and application of the determination and whether it has been superseded by any subsequent determination can only properly be determined at a trial.

(7)	The court’s discretion to summarily dismiss proceedings under Order 12 rule 40(1) must be exercised sparingly and only in the clearest of cases. Here, four of the six grounds were not cited in the notice of motion, two of the six grounds entirely lacked merit and none of the other grounds warranted exercising the power of the court to order summary dismissal. The motion was dismissed with costs. 

Cases Cited

Simon Mali v The State [2002] PNGLR 548
Telikom PNG Ltd v Independent Consumer and Competition Commission & Digicel (PNG) Ltd [2008] PNGLR 303
Tigam Malewo v Keith Faulkner (2009) SC960
Toap v The State [2004] 2 PNGLR 191
Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Counsel

F So, for the Plaintiffs
Z Waiin, for the First, Second & Third Defendants
W Mininga, for the Fourth Defendant
S Dadada, for the Sixth Defendant

16th April 2024

1.      CANNINGS J: The plaintiffs, Hamule Ngiame and Tindali Teke of Hiwa Koma Clan, have commenced representative proceedings for themselves and on behalf of members of Hiwa Komo Clan of Hela Province, seeking orders and declarations regarding customary ownership of land used for the Hides Gas project described as Portion 168C.

2.     They seek declarations that:

•	decisions of the Land Titles Commission by Chief Commissioner Josepha Kanawi of 30 August 1996 and Commissioner Clement Malaisa of 9 March 1999, which declare Hiwa Koma clan as owner of Portion 168C, are valid and enforceable;

•	the Hiwa Koma Clan is pursuant to s 10 of the Oil and Gas Act 1998 entitled to all land rentals for the use of Portion 168C for the Hides Gas power plant facilities (used to supply power to the Porgera gold mine in Enga Province) since 1993.

3.     They seek orders that:

•	the State and the Secretary and the Minister for Petroleum (the first, second and third defendants) facilitate payment of all outstanding benefits including land rentals and royalties regarding Portion 168C; and
 
•	the fifth defendant, Pina clan, and all other clans of Hiwa tribe, be permanently restrained from interfering with the Hiwa Koma Clan  benefiting from rentals and royalties from the Hides Gas power project.

4.     The first, second and third defendants have filed a notice of motion under Order 12 rule 40(1)(a) and (c) of the National Court Rules seeking summary dismissal of the proceedings for not disclosing a reasonable cause of action and being an abuse of process. This is a ruling on that motion. 

5.     The two grounds relied on in the notice of motion for arguing no reasonable cause of action and abuse of process are:

•	that the plaintiffs failed to comply with the Order 5 rule 13 requirements of the National Court Rules regarding commencement of representative proceedings;

•	that the proceedings are time-barred under s 16(1) of the Frauds and Limitations Act. 

6.     At the hearing of the motion the first, second and third defendants relied on four other grounds for dismissal: 

•	that the Land Titles Commission decision on which the plaintiffs rely has been declared null and void by the National Court; 

•	that the proceedings should have been commenced as judicial review proceedings under Order 16 of the National Court Rules; 

•	that a “compromise agreement” executed by landowners in 1993, which did not recognise the plaintiffs’ clan as customary owners of the land, was binding and enforceable against them; and 

•	that the question of entitlement to benefits was settled by a ministerial determination made in 2001 under the Oil and Gas Act, which did not recognise the plaintiffs’ clan as customary owners of Portion 168C. 

The plaintiffs oppose the motion.

I will deal with the six grounds for dismissal in turn.

FAILURE TO COMPLY WITH ORDER 5 RULE 13 REQUIREMENTS 

7.     The first, second and third defendants point to a number of requirements, based on Order 5 rule 13 of the National Court Rules, which have been developed to regulate proceedings in which one or more persons purport to represent a group of persons with a common interest. The leading Supreme Court cases of Simon Mali v The State [2002] PNGLR 548 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person puts themselves forward as a plaintiff acting in a representative capacity for other persons:

(a)	all intended plaintiffs (those who the representative claims to represent) must be named in the originating process;

(b)	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

(c)	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 they were authorised by them to file proceedings as a class representative.

8.     These requirements were not met upon commencement of the proceedings. However, it does not follow automatically that the proceedings should be dismissed. The non-compliance has been largely rectified by the filing of affidavits of one of the two class representatives, Hamule Ngiame, on 2 and 22 December 2023 which show compliance with requirements (b) and (c). This is not a case of complete failure to comply with the procedural requirements for representative proceedings. The extent to which there has been non-compliance does not warrant summary dismissal of the proceedings.

PROCEEDINGS ARE TIME-BARRED 

9.     The first, second and third defendants argue that the proceedings are time-barred under s 16(1) of the Frauds and Limitations Act, which states:

Subject to Sections 17 and 18, an action—

(a)	that is founded on simple contract or on tort; or
(b)	to enforce a recognisance; or
(c)	to enforce an award, where the submission is not by an instrument under seal; or
(d)	to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

10.    I reject that argument. Section 16(1) imposes a six-year limitation period only in relation to proceedings in which the cause of action is contract or tort or a recognisance or an award or an enactment. The present case does not involve prosecution of any of those causes of action. Section 16(1) does not apply to these proceedings.

11.    The question of delay in commencement of the proceedings might become relevant if the matter proceeds to trial but it is not something that warrants summary dismissal of the proceedings under s 16(1).

LAND TITLES COMMISSION DECISION NULL AND VOID 

12.     The first, second and third defendants point to an order of the National Court dated 20 July 2002 in proceedings described as CA No 318 of 1999 Daniel Mapira for and on behalf of Pina Clan v Page Kurubugo for and on behalf of Hiwa Koma Clan. The National Court (Kandakasi J) granted a declaration that:

… the decision of the Chief Land Titles Commissioner on 30 August 1996 in respect of the land described as Portion 168C Milinch of Karius Fourmil of Wabag is null and void and of no effect.

13.     The first, second and third defendants argue that that order nullifies the fundamental basis of the plaintiffs’ claim to ownership of Portion 168C, which is enforcement of the order of the Land Titles Commission by Chief Commissioner Josepha Kanawi of 30 August 1996.

14.     I agree that the existence of that order appears to put the plaintiffs in a difficult position. The order will inevitably become relevant if this matter proceeds to trial. However, there is no evidence, at this stage, of the nature of the National Court proceedings which led to the order or the context in which it was made. Further, there is another decision of the Land Titles Commission on which the plaintiffs rely – the order of Commissioner Clement Malaisa of 9 March 1999 –which evidently declares Hiwa Koma clan as owner of Portion 168C and supports the plaintiffs’ claims to ownership of the land. That decision appears to be unaffected by the order of the National Court of 20 July 2002. There is also no evidence that the order of 20 July 2002 remains in force. 

15.     If there were evidence that the order of 20 July 2002 remains in force and that there was no successful appeal or review of it, it would still be doubtful that this would support the first, second and third defendants’ argument that the plaintiffs’ proceedings fail to disclose a reasonable cause of action or are an abuse of process. Perhaps the order would support an argument that the proceedings are frivolous in the sense of having no reasonable prospect of success (Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Toap v The State [2004] 2 PNGLR 191). But that argument would need to be made under Order 12 rule 40(1)(b) of the National Court Rules. 16.    That provision is not cited in the first, second and third defendants’ notice of motion, which is restricted to Order 12 rules 40(1)(a) and (c).

17.     I am not satisfied that there is evidence that the question of customary ownership of Portion 168C has been fully and finally determined by the National Court order of 20 July 2002. The existence of that order does not warrant summary dismissal of the proceedings. 

PROCEEDINGS SHOULD HAVE BEEN COMMENCED AS JUDICIAL REVIEW 

18.     The first, second and third defendants argue that Order 16 rule 1 of the National Court Rules applies to these proceedings. Order 16 rule 1 states:

An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order.

19.     The first, second and third defendants refer to paragraph 1 of the originating summons, which states that the plaintiffs claim: 

An order in the nature of a declaration pursuant to s 155(4) of the Constitution that the decisions of the Land Titles Commission by Chief Commissioner Mrs Josepha N Kanawi dated 30 August 1996 and Commissioner Mr Clement Malaisa [dated] 9 March 1999 are valid court orders and shall be complied with.

20.     Their argument is that paragraph 1 is seeking an order in the nature of mandamus, so it is mandatory that the proceedings be commenced as an application for leave to apply for judicial review under Order 16 of the National Court Rules.

21.     I reject the argument for three reasons. First, the relief sought in paragraph 1 is not mandamus. The plaintiffs are not seeking an order to compel anyone to perform a statutory duty according to law. Secondly, they are not seeking an order as such, but a declaration. Thirdly the primary relief sought by the plaintiffs is declaratory in nature. This means that the plaintiffs can elect to commence the proceedings under Order 16 as a judicial review or under Order 4 as an ordinary originating summons (Telikom PNG Ltd v Independent Consumer and Competition Commission & Digicel (PNG) Ltd [2008] PNGLR 303). They elected to proceed under Order 4 and there is nothing wrong with that. 

22.     The mode of commencement of the proceedings is unremarkable and provides no basis for summary dismissal of the proceedings. 

“COMPROMISE AGREEMENT” EXECUTED IN 1993 DOES NOT RECOGNISE PLAINTIFFS’ CLAN 

23.     The first, second and third defendants have brought evidence of a compromise agreement dated 7 July 1993, which they say is a legally binding agreement that identified nine clans from Hiwa Tribe and eight clans from Tuguba Tribe as the recognised beneficiary clans directly affected by the Hides Petroleum Development Licence 1 (PDL 1) and determined entitlement to royalties. It is pointed out that the agreement pre-dates the Land Titles Commission decision of 1993 that the plaintiffs rely on, which has been declared null and void by the National Court order of 20 July 2002, and the agreement does not recognise the plaintiffs’ Hiwa Koma clan. 

24.     I think this is a self-defeating argument. It seems that the plaintiffs’ clan was not a party to the compromise agreement, so how can they be bound by it?

25.     In any event, questions as to the meaning and effect of such agreements can only be properly ventilated at a trial. The existence of the 1993 compromise agreement is not a good ground for summary dismissal of the proceedings.

MINISTERIAL DETERMINATION MADE IN 2001 DOES NOT RECOGNISE PLAINTIFFS’ CLAN 

26.     The first, second and third defendants point to a determination of customary land ownership made by the Minister for Petroleum and Energy and the Director of the Oil and Gas Act 1998 under s 169 of the Oil and Gas Act on 9 October 1991 and published in the National Gazette No G160 of 13 December 2001, which states that:

Pina clans are the legal customary owners of “Portion 168C, Milinch Karius, Fourmil Wabag, Hides Gas plant site and waterline easement in the Hides Gas Project in Tari. 

27.     The first, second and third defendants argue that by force of s 168(10) of the Oil and Gas Act that determination is not reviewable before any court unless an application is made within 28 days of the determination. They argue that the plaintiffs are well out of time, hence the proceedings should be summarily dismissed.

28.     I agree that the existence of that determination appears to put the plaintiffs in a difficult position. The determination will inevitably become relevant if this matter proceeds to trial. However, questions as to the interpretation and application of the determination and whether it has been superseded by any subsequent determination can only properly be determined at a trial.

29.     If there were evidence that the determination remains in force and that there has been no review of it, it would still be doubtful that this would support the first, second and third defendants’ argument that the plaintiffs’ proceedings fail to disclose a reasonable cause of action or are an abuse of process. Perhaps the determination would support an argument that the proceedings are frivolous in the sense of having no reasonable prospect of success (Wabia v BP Exploration Co Ltd [1998] PNGLR 8, Toap v The State [2004] 2 PNGLR 191). But that argument would need to be made under Order 12 rule 40(1)(b) of the National Court Rules. That provision is not cited in the first, second and third defendants’ notice of motion, which is restricted to Order 12 rules 40(1)(a) and (c).

30.     I am not satisfied that there is evidence that the question of customary ownership of Portion 168C has been fully and finally determined by the ministerial determination of 9 October 1991. The existence of that determination does not warrant summary dismissal of the proceedings. 

CONCLUSION

31.     The court’s discretion to summarily dismiss proceedings under Order 12 rule 40(1) of the National Court Rules must be exercised sparingly and only in the clearest of cases. Here, four of the six grounds were not cited in the notice of motion, two of the six grounds entirely lacked merit and none of the other grounds warranted exercising the power of the court to order summary dismissal. The motion will be dismissed with costs. 

ORDER

1.	The application for summary dismissal of the proceedings under Order 12 rule 40 of the National Court Rules, made by notice of motion filed on 27 March 2024, is refused. 

2.	The first, second and third defendants shall pay the plaintiffs’ costs of the motion on a party-party basis which shall if not agreed be taxed. 
__________________________________________________________________
Ketan Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the First, Second & Third Defendants		
Bradshaw Lawyers: Lawyers for the Fourth Defendant			
Kambori & Associates Lawyers: Lawyers for the Sixth Defendant