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Wau v Baeau [2025] PGNC 1; N11123 (3 January 2025)

N11123

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 39 OF 2024

GABRIEL WAU & KUA IRAI
FOR AND ON BEHALF OF THEMSELVES AND 296 OTHERS OF RAGAMUGA SETTLEMENT
Applicants

V

ULEA BAEAU ON BEHALF OF BADU CLAN OF KOROBOSEA
First Respondent

DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

BADU INCORPORATED LAND GROUP
Fourth Respondent

WAIGANI: CANNINGS J
30 DECEMBER 2024; 3 JANUARY 2025

PRACTICE AND PROCEDURE – motion for summary dismissal of proceeding commenced by human rights application – whether applicants have standing – whether proceeding discloses a reasonable cause of action – whether proceeding frivolous or vexatious or an abuse of process – National Court Rules, Order 12 rule 40.

Some of the respondents to a human rights application regarding the compulsory acquisition of land for a road construction project applied by notice of motion for summary dismissal of the proceeding. They argued that the applicants lacked standing, that their proceeding failed to disclose a reasonable cause of action, and that the proceeding was vexatious, frivolous and an abuse of process.

Held

(1) The applicants did not lack standing. They or their ancestors have lived for many years on the land which is on the route of the proposed road and will be directly affected if the road is built.

(2) The proceeding discloses a reasonable cause of action.

(3) There is no evidence that the applicants have commenced the proceeding for any improper motive. The proceeding is not vexatious.

(4) However, the applicants have little chance of succeeding, as they appear to have no direct evidence to support their fundamental claims that their ancestors were given the land by the traditional owners and that the incorporated land group which was registered as owner of the land was improperly incorporated and that the compulsory acquisition of the land by the State is ineffective at law. Therefore the proceeding is frivolous.

(5) The proceeding is also an abuse of process as it does not comply with the requirements for commencement of such proceedings and the applicants have commenced other proceedings by writ of summons raising the same or similar causes of action and the same or similar relief as in this proceeding.

(6) Ordered: that these proceedings shall be dismissed with effect from one month after the date of this order, and the interim injunction granted in this proceeding that restrains the construction of the road shall continue temporarily and dissolve at 12 midday on the day of dismissal of the proceeding.

Cases cited

Simon Mali v The State [2002] PNGLR 548
Tigam Malewo v Keith Faulkner (2009) SC960
Toap v The State (2004) N2766
Toap v The State [2004] 2 PNGLR 200

Counsel

G Wau, an applicant, in person
K Rageau for the first and fourth respondents
M Tusais for the NCDC and the NCD Physical Planning Board

1. CANNINGS J: This is a ruling on a motion by the first and fourth respondents, Ulea Baeau and Badu Incorporated Land Group, for dismissal of this proceeding, HRA 39 of 2024.
   
2. HRA 39 of 2024 is a human rights enforcement application commenced by Gabriel Wau and Kua Irai who purport to act for themselves and on behalf of 296 other residents of Ragamuga settlement, near Saraga, National Capital District.
   
3. The case is about construction of a new road by the National Capital District Commission that would link Kipo settlement at the end of Boroko Drive, East Boroko, with the Sir Reuben Taureka Highway at Saraga Market.
   
4. The applicants assert that the proposed road would run right through Ragamuga settlement, which is located on land known customarily as Karikavaro. There is some confusion as to the formal description of the land and whether it is Portion 3429C or 3430C.
   
5. They have been served with demolition notices issued by the National Capital District Physical Planning Board requiring them to dismantle and remove their houses and other properties. They want to stop the road being built. They say it would be a breach of their human rights if the road project goes ahead and their homes are destroyed and they are forced off the land on which they or their ancestors have lived for almost 70 years.
   
6. They argue that:
   

• their ancestors, who are from Chimbu Province and mainly from Gumine District, were given the land in the late 1950s by the traditional owners and that it has been developed since then and is now the site of permanent houses and other permanent structures including churches and that the people have developed the land with vegetable gardens that are the source of their livelihood;
  
• the fourth respondent, Badu Incorporated Land Group, was improperly incorporated several years ago by the first respondent, Ulea Baeau of Badu Clan, Korobosea, when it should have been incorporated as Badu Toneta Incorporated Land Group;
  
• Badu Incorporated Land Group was improperly granted a certificate of title under the Land Registration Act over Karikavaro land in 2016;
  
• parts of Karikavaro land and neighbouring land that form a road reserve along the route of the proposed road were improperly compulsorily acquired by the State in 2024.
  

7. On 14 October 2024 I granted an interim injunction to restrain the construction of the road and enforcement of the demolition notices, pending further order of the Court.
   

THE MOTION FOR DISMISSAL

8. The first and fourth respondents filed a notice of motion on 11 December 2024 seeking summary dismissal of the proceeding under Order 12 rule 40 of the National Court Rules, which states:
   

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

9. They argue that the applicants lack standing, that the proceeding fails to disclose a reasonable cause of action, and that the proceeding is vexatious, frivolous and an abuse of process.
   

Standing

10. The applicants do not lack standing. They or their ancestors have lived for many years on the land which is on the route of the proposed road and will be directly affected if the road is built. That gives them a sufficient interest in the proceedings, and standing to make the human rights application.
    

Reasonable cause of action

11. The applicants are saying that they have an equitable interest in the land arising from their long occupation of it with the consent of the traditional owners and that their rights to the full protection of the law and to just compensation under ss 37(1) and 53 of the Constitution are threatened by continuation of the road project. The proceeding discloses a reasonable cause of action.
    

Frivolity, vexatiousness, abuse of process

12. The grounds of frivolity, vexatiousness and abuse of process are different grounds on which a proceeding can be dismissed under O 12 r 40(1) of the National Court Rules (Toap v The State (2004) N2766, Toap v The State [2004] 2 PNGLR 200).
    
13. A proceeding is vexatious where the case amounts to harassment of the defendant or the defendant is being put to the trouble and expense of defending proceedings which are either a sham or which cannot possibly succeed.
    
14. A proceeding is frivolous if the plaintiff’s claim is so obviously untenable that it cannot possibly succeed or the plaintiff would be bound to fail if the matter went to trial.
    
15. If there is a multiplicity of proceedings involving the same grievance that is one example of an abuse of process.
    
16. There is no evidence in this case that the applicants have commenced the proceeding for any improper motive. Their motive is not to put the respondents to unnecessary time and expense in defending the proceeding. The proceeding is not vexatious.
    
17. However, I agree with the first and fourth respondents that the applicants have little chance of succeeding in these proceedings. They appear to have no direct evidence to support their fundamental claims that their ancestors were given the land by the traditional owners and that the incorporated land group which was registered as owner of the land was improperly incorporated and that the compulsory acquisition of the land by the State is ineffective at law. Therefore, the proceedings are frivolous.
    
18. The proceeding is also an abuse of process as it purports to be a representative proceeding. Gabriel Wau and Kua Irai assert that they have commenced the proceeding “for and on behalf of 296 others, the remnants of the early settlers of Ragamuga settlement”. However, they have not complied with the requirements for commencement of such proceedings based on Order 5 rule 13 of the National Court Rules. These requirements 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 an applicant acting in a representative capacity for other persons:
    
    • (a) all intended applicants (those who the representative claims to represent) must be named in the originating process;
      
    • (b) each and every intended applicant must give specific instructions (evidenced in writing) to their lawyers or representatives to act for them;
      
    • (c) any person in whose name proceedings are commenced and who claims to represent other intended applicants must produce an authority to the court to show that they were authorised by them to file proceedings as a class representative.
      
19. This proceeding fails to meet those requirements as none of the “296 others” have been named and there is no evidence that those persons have given specific instructions and authorised Mr Wau and Mr Irai to act for them and to file this proceeding on their behalf.
    
20. Furthermore, the applicants have commenced other proceedings by writ of summons, WS No 448 of 2024, raising the same or similar causes of action and the same or similar relief as in these proceedings. They are agitating the same cause of action in more than one case, and this is an abuse of process.
    

CONCLUSION

21. Though the applicants have standing and the proceeding they have filed is not vexatious, the proceeding is frivolous in that it has no reasonable prospect of succeeding. It is also an abuse of process as it has been commenced as a representative action without following the requirements for commencement of such proceedings and another proceeding has been commenced that agitates the same cause of action as in this case. I will exercise my discretion under Order 12 rule 40(1)(b) and (c) of the National Court Rules to dismiss the proceeding. I will allow a grace period of one month before the order for dismissal takes effect. The interim injunction will dissolve upon dismissal of this proceeding.
    
22. The first and fourth respondents have not succeeded on all points raised in their notice of motion and the applicants are self-represented. In these circumstances it is appropriate that the parties bear their own costs.
    

ORDER

1. This proceeding shall be dismissed with effect from 12 noon on 3 February 2025 for being frivolous and an abuse of process under Order 12 rule 40(1)(b) and (c) of the National Court Rules.
   
2. The interim order of 14 October 2024 shall continue until dismissal of the proceeding under order 1, and upon dismissal of the proceeding the interim order of 14 October 2024 is dissolved.
   
3. The parties shall bear their own costs of the proceeding.

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Lawyers for the first & fourth respondents: Rageau Manua & Kikira Lawyers