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Maravis v Tukuliya [2024] PGNC 97; N10754 (28 March 2024)

N10754

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 104 OF 2023 [IECMS]

BETWEEN:
CHRISTIAN MARAVIS on behalf of himself and other concerned Customary Landowners of WANIGELA (SEMORER) VILLAGE, TUFI LLG, IJIVITARI DISTRICT, ORO PROVINCE whose names appear in schedule A to this Originating Summons
Plaintiffs

AND:
JUDE TUKULIYA as the Chairman of the Environment Council and the Acting Managing Director of the CONVERSATION AND ENVIROMENT PROTECTION AUTHORITY
First Defendant

AND:
ENVIRONMENT COUNCIL
Second Defendant

AND:
CONSERVATION AND ENVIRONMENT PROTECTION AUTHORITY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
NORTHERN FORREST PRODUCTS LIMITED
Fifth Defendant

Waigani: Dingake J
2023: 23^rd November
2024: 21^st February and 11^th & 15^th & 28^th March

JUDICIAL REVIEW – practice and procedure – application for leave for judicial review filed by plaintiff – competency issue raised by defendants – defendants contend plaintiff failed to seek consensus from all intending plaintiffs to act in a representative capacity – defendants also contend plaintiff failed to give sufficient instructions to the lawyer or law firm to represent them - whether plaintiff has met the prerequisites for representative action - whether specific instructions were given to CELCOR Lawyers to act for intended Plaintiffs – plaintiff has proven sufficient prerequisites have been met to act in a representative capacity – every intending Plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them – only one clan has given instructions to CELCOR lawyers to act for them – no specific instructions from all the other plaintiffs to act for them – requirements prescribed in Simon Mali case not met - application for leave refused

Cases Cited

Simon Mali v The State (2002) PNGLR 15

Counsel

Mr. John Jnr Ules, for the Plaintiffs
Mr. Justin Isaac & Ms. Rosa Mobiha, for the Defendants

RULING

28^th March 2024

1. DINGAKE: This is my brief ruling on the Plaintiff’s application for leave.
   
2. The Plaintiffs through their Originating Summons sought leave to review the decision of the Second Defendant dated the 18^th of February 2022.
   
3. The First, Second and Fourth Defendants raised two (2) competency issues, namely, (a) that the Plaintiff’s pleadings are not complete in that the Plaintiff only pleaded that it seeks leave to review the decision of the Second Defendant dated 18^th February 2022, to uplift the suspension of Environment Permit, but fails to plead the issuance of the Environment Permit; (b) that the Plaintiff’s pleadings are defective in that there is no clear date as to when the purported nineteen (19) Plaintiffs met and resolved to appoint Mr. Christian Maravis to represent them; and further that the Consent of Authority Form to act does not state which particular law firm or lawyer was given instructions by the nineteen (19) Plaintiffs.
   
4. The Plaintiffs are the concerned citizens and customary landowners of the land over which the Environment Permit was issued to the Fifth Defendant, and also customary owners of the forest resource, water and river systems over which the Defendant is currently carrying out its forest clearing activities.
   
5. The Plaintiffs allege that the Fifth Defendant’s operation had caused and continue to cause destruction and pollution to the river systems and water resources that the Plaintiffs rely on for their living.
   
6. The argument by the First, Second and Third Defendants outlined earlier that the Plaintiff does not meet the prerequisites of a representative action or suit in line with the case of Simon Mali v The State (2002) PNGLR 15, is opposed by Counsel for the Plaintiff, who argues that the authority of Simon Mali requires that intended Plaintiffs must give consent and not every person in the clan.
   
7. On the papers before me, it seems plain that the Plaintiff has attached a schedule to the Originating Summons which provides the names and signatures for all intended Plaintiffs within the ILG or Clan who have consented to this proceeding being brought on their behalf.
   
8. In the result, I am satisfied that the Plaintiff has been duly authorized by the “intended Plaintiffs” within the meaning of that phrase as used in the Simon Mali case (supra).
   
9. The above holding however, does not dispose of the matter of the authority of the lawyers to represent the Plaintiffs which is an important requirement as stated in the Simon Mali case (supra).
   
10. On the question of whether specific instructions were given to CELCOR Lawyers to act for intended Plaintiffs, I read and considered Annexure “PG1” attached to the supporting Affidavit of Mr. Paul Gambud (Doc No. 6). Annexure “PG1” purports to be the Minutes of the Sabar clan meeting held on the 28^th of April 2023. The said minutes are signed by one Judith Gambud as Secretary. The said minutes record that the Sabar clan has agreed that Celcor Law firm act for them on all legal issues surrounding Sabar clan. The minutes do not meet the strict requirements of the Simon Mali case (supra) that instructs that each and every intending Plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them.
    
11. I therefore hold that there was failure to comply with the Simon Mali (supra) case in so far as the authority given to lawyers is concerned.
    
12. In the circumstances, the Plaintiffs application not being compliant with the requirements of representative action, is liable to be dismissed, on this ground alone.
    
13. In the result, the leave application is refused with costs, such costs to be agreed or taxed.

_______________________________________________________________
Celcor Lawyers: Lawyers for the Plaintiff
Lawama Lawyers: Lawyers for the Defendants