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National Court of Papua New Guinea |
N11343
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 1268 OF 2016 (CC1)
BETWEEN:
DONATUS KARURI on behalf of himself and the West Papuan Refugees who occupy the property described as Allotment 33, Section 03, Galip Street, Hohola, National Capital District, (being all the land contained in State Lease Volume 10 Folio 2331) whose names are set out in the Schedule hereto
Plaintiffs/Respondents
AND:
RUTH WAROI
First Defendant/Applicant
AND:
GEORGE MERO
Second Defendant /Applicant
AND:
GM INDUSTRIES LTD
Third Defendant /Applicant
WAIGANI: BRE AJ
14 MAY, 27 JUNE 2025
INTERLOCUTORY APPLICATION – summary disposal application – no reasonable case of action and competency grounds – jurisdictional basis - cause of action alleging constructive fraud – summary disposal application relies on O12 r40 and O8 r27 – O12 r40 subject to fraud exclusion rule in O12r37 – O8r27 relates to striking out of pleadings – no submissions on pleadings being defective – application refused.
Cases cited
Jackson Tuwi v Goodman Fielder International Limited [2016] SC1500
Koti v Moli [2022] PGSC 4; SC2191, at [20] and [22]
Lord & Company Ltd v Inapero [2014] SC1624
Paiko v Mondoro [2022] N9934
Simon Mali v The State [2002] SC690
State v Downer Construction (PNG) Ltd [2009] SC979
Tigam Malevo v Keith Faulkner [2009] SC960
Counsel
Mr T Yai for the applicant/defendants
Mr J Sirigoi for the respondents/plaintiffs
RULING
1. BRE AJ: The defendants apply for summary disposal of the entire proceedings on grounds that the proceeding does not disclose a reasonable cause of action and are also incompetent for the lead plaintiff lacking representational capacity and standing.
2. The substantive proceeding concerns property occupied by the plaintiffs which has been sold to the third defendant by the first defendant. The plaintiff claims there is constructive trust attached to the title which has not been acknowledged.
3. The applicant relies on four affidavits as contained in the evidence of:-
(1) Affidavit in support of Tai Yai sworn 31 March 2025 and filed 31 March 2025.
(2) Affidavit in support of Ruth Attanai sworn 23 April 2023 and filed 25 April 2023. Doc 76
(3) Affidavit in support of Ruth Attanai sworn 29 April 2019 and filed 14 May 2019. Doc 10
(4) Further Affidavit of Tai Yai sworn 17 July 2019 and filed 17 July 2019. Doc 15
4. The evidence demonstrate the history of the title to the property, the occupation by West Papuan Refugees as far back as 1960 and obtaining of title to the property by Gerard Konjal then to Abel Attanai then to Ruth Attanai, now the first defendant, on the death of Abel Attanai and its sale by the Public Curator to the third defendant, GM Industries Ltd.
5. Mr Yai submits that the evidence demonstrates the plaintiffs have no reasonable cause of action as title in the property has been lawfully passed and that the lead plaintiff has no legal interests in the property nor have the plaintiffs authorised him to act for them in the schedule attached to the writ.
6. Mr Yai also relied heavily on the decision of Los J between the same parties in OS No 524 of 1999 which he contends clearly confirms Abel Attanai as the registered proprietor to the property.
7. The respondent opposes the application by challenging the jurisdictional basis of the application and pointing out that the pleadings
are not defective and they have a reasonable cause of action in constructive fraud. For the lead plaintiff's representational authority,
the Court was referred to the Court file documents 33 to 61 which counsel submits proves the representational authority for the lead
plaintiff and the law firm.
8. After carefully considering the submissions of both counsels, the issues which I consider relevant to decide are:-
or
(1) Competency of the application
9. Order 4 rule 49(8) and (12) of the National Court Rules (NCR) provide for an applicant to specifically cite the jurisdictional basis relied on to invoke the Court's jurisdiction or face the risk of the application being struck out for being incompetent.
10. Order 10 rule 9A(15)(1) (a) and (2) (d) and (e) NCR are relied on by the defendants to move the application. Order 10 rule 9A(15)(1)(a) and (2) (d) and (e) NCR reads:-
"15. Summary Disposal.
(1) The Court may summarily determine a matter:
a. on application by a party; or
...
(2) The Court may summarily dispose of a matter in the following situations:
...
d. under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.
e. on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court."
11. I am satisfied that the application cites the correct jurisdictional basis for an application invoking the Court's power to summarily dispose a proceeding and will consider the submissions.
12. Order 10 rule 91A(15)(1)(a) NCR authorises a party to the proceeding to apply for summary disposal which I find the applicant has correctly cited to authorise her as the first defendant, to bring the application.
13. Order 10 rule 9A(15)(2) (d) and (e) NCR provides two ways where a summary disposal application may be based on, these are:-
14. While the jurisdictional basis of Order 10 rule 9A(15)(2) (d) and (e) NCR is sound, I agree with Mr Sirigoi that the requirements of Order 12 rule 40 and Order 8 rule 27 must be met by the applicant.
On that basis, I turn to consider the second issue.
2) Whether the proceeding should be summarily disposed because it does not disclose a reasonable cause of action or is frivolous or vexatious or an abuse of process pursuant to Order 12 rule 40 NCR.
15. I accept Mr Sirigoi's submission that Order 12 rule 37 NCR precludes summary dismissal of fraud cases.
16. While there may be a distinction between summary dismissal and summary disposal, I am of the view that summary disposal is not available for fraud cases that are sought to be summarily disposed in reliance of the jurisdictional basis of Order 10 rule 9A(15)(2)(d) NCR.
17. But a summary disposal application in a fraud case can be successful if it cites other jurisdictional basis in Order 10 rule 9A(15) (2) (a), (b), (c) or the second lag of (d) for defective pleadings in Order 8 rule 27NCR, or 10 rule 9A(15)(2) (e) for any other competency grounds for instance, want of section 5 notice of claim.
18. I say this because of two reasons:-
(1) Order 12 rule 40 NCR cannot be read in isolation of the exclusion provision for fraud matters in Order 12 rule 37 NCR. Order 12 rule 37 NCR specifically precludes summary dismissal causes of actions pleading fraud, malicious prosecution, libel or slander from being summarily dismissed for any interlocutory applications commenced that rely on provisions in Division 4 of Order 12 where Order 12 rule 40 falls within that Division. The rule of interpretation of statues states that a specific provision overrides any general provision. See State v Downer Construction (PNG) Ltd [2009] SC979 at [69].
The exclusion in Order 12 rule 37 NCR is clear and specific about the type of actions that are excluded from being summarily decided. That includes actions alleging fraud and it is my view, that Order 10 rule 9A(15)(2)(d) NCR must be read subject to the exclusion clause in Order 12 rule 37 NCR.
Any other cause of action for instance negligence, can in my view be successfully summarily disposed under Order 10 rule 9A(15)(2)(d) NCR order 12 rule 40 NCR reference as it is not excluded in Order 12 rule 37 NCR.
(2) The Supreme Court in Lord & Company Ltd v Inapero [2014] SC1624 held that caution must be exercised when considering summary applications for fraud cases and that it was open to the trial judge to summarily dispose. In Lord & Company Ltd v Inapero the Supreme Court considered an appeal arising from the trial judge's decision to issue summary judgement for failure to comply with a conditional order. The Supreme Court tried to distinguish the 'summary disposal' procedure under Order 12 Division 4 NCR and 'summary disposal' procedure under Order 10 rule 9A(15) NCR and held with regard to the appeal that the trial judge dealt summarily with the matter by disposing of it for failure to comply with the conditional order; and not because he was exercising discretion to order summary judgement under order 12 rule 38 NCR which if he did, would be subject to the exclusion in order 12 rule 37 NCR as the cause of action alleged fraud in changing Mr Inapero as the director of a company.
The Supreme Court commented:-
"51. The decision of the Supreme Court in Daniel v Pak Domoi Ltd is of assistance in the matter currently before the Court because it recognises that, while Order 12 Division 4 of the National Court Rules is entitled “Summary Disposal”, there are other provisions in the National Court Rules outside Order 12 Division 4 which empower the National Court to deal with, and dispose of, proceedings in a summary way. Relevantly, Order 10 Rule 9A (15) provides a general jurisdiction to the National Court to summarily dispose of a matter before it, similarly to Order 13 Rule 16 of the Supreme Court Rules 2012 (cf Iewago v Nambawan Super Ltd [2011] N4214, Department of Works v International Construction (PNG) Ltd [2011] SC1122). There is no reason for this Court to conclude that these other forms of summary disposal not specifically dealt with in Order 12 Division 4 of the National Court Rules are nonetheless somehow subject to the provisions of Order 12 Division 4 (and in particular Order 12 Rule 37 (b)).
52. As a general proposition, “summary disposal” of a matter pursuant to Order 10 Rule 9A (15) is not “summary judgment” within the meaning of Order 12 Division 4 National Court Rules, and Order 12 Rule 37(b) is not relevant to summary disposal of a matter in those circumstances.
53. In our view his Honour below in these proceedings dealt “summarily” with the cases before him. His judgments, however, did not constitute “summary disposal” within the meaning of Order 12 Division 4 of the National Court Rules. Accordingly, while we consider that the judgments of his Honour of 6 May 2009 were summary disposals, they were not summary disposals whereby the National Court is limited by the terms of Order 12 Rule 37(b). For the purposes of the application of the National Court Rules it was open to his Honour to summarily dispose of the proceedings before him, notwithstanding that they were founded on allegations of fraud. "
In Lord & Company Ltd v Inapero the Supreme Court was concerned with the trial judge exercising his powers under O10r9A(15)(2)(b) and (c) NCR for failure to appear and non-compliance of directions, not Order 10 rule 9A(15)(d) NCR. The Supreme Court's decision in Lord & Company Ltd v Inapero must be read as a whole to appreciate its intent.
(3) In Paiko v Mondoro [2022] N9934 His honour Shepherd J relied on Lord & Company Ltd v Inapero to clarify the summary judgement and summary disposal processes and commented that a party could succeed in moving an application under Order 10 rule 9A(15)(2) NCR but did not specifically address the impact of Order 10 rule 9A(15)(2)(d) NCR.
His honor commented at [51] as follows:-
“ There are a number of ways in which the National Court can dispose summarily of proceedings under the National Court Rules without the judgment being a “summary judgment” within the meaning of Order 12 Rule 38. So if an applicant seeks summary disposal of a proceeding which involves allegations of fraud and is thereby prevented by Order 12 Rule 37(b) from invoking the jurisdiction of the Court under Order 12 Rule 38, the Court can nevertheless grant summary disposal if an applicant’s case can be shown to come within the compass of some other provision in the National Court Rules which allows for summary disposal. One such provision is Order 10 Rule 9A(15).”
[Emphasis added]
19. To me, the Courts in these two cases, did not address the impact of Order 12 rule 37 NCR to the specific reference in Order 10 rule 9A(15)(2)(d) NCR of Order 12 rule 40 NCR.
20. For these reasons, I refuse the applicants reliance on the first lag of Order 10 rule 9A(15)(2)(d) NCR as it pertains to the submission on the proceeding not disclosing a reasonable cause of action. In my view the specific exclusion provision in Order 12 rule 37 NCR applies to preclude the exercise of discretion to summarily dispose this proceeding which raises allegations of fraud which the applicant substantively addresses the merits of the case that it presents no reasonable cause of action.
21. The effect of a summary disposal order and a summary dismissal order are the same. In my view summary disposal generally refers to procedural matters of non-compliance such as want of prosecution, and non-compliance of Court orders whereas summary dismissal requires consideration of the merits of the case. Hence Order 10 rule 9A(15)(2)(d) NCR requires a consideration of the merits but in my view would not apply to fraud cases.
22. This then brings me to the second lag of Order 10 rule 9A(15)(2)(d) NCR for whether the proceeding should be summarily disposed for defective pleadings under Order 8 rule 27 NCR.
23. Mr Yai, did not make any submissions on the state of the pleadings but challenged the merits of the cause of action with reference to the filed evidence of the applicant.
24. It is clear Order 8 rule 27 NCR grants discretion in the Court to strike out pleadings that do not disclose a reasonable cause of action or have a tendency to cause prejudice or delay. No pleading was singled out requiring its striking out.
25. I am not persuaded to exercise discretion to summarily dispose the proceeding by striking out pleadings pursuant to Order 8 rule 27NCR and so refuse this lag of the submissions as well.
3) Representational capacity
26. On the final submissions on representational capacity of the lead plaintiff and his standing, I am of the view that the defects submitted by Mr Yai do not warrant a summary disposal of the entire proceedings.
27. Consistent with my views on Order 12 rule 40 NCR as expressed above, Order 10 rule 9A(15)(2)(e) NCR is an appropriate jurisdictional basis in line with Paiko v Mondoro to rely on to invoke the Court's discretion to summarily dispose a cause of action alleging fraud.
28. There is sufficient documentary evidence in the affidavits filed in Court document numbers 33 to 61 (inclusive) which provides sufficient evidence of the authority to represent the class of plaintiffs to the lead plaintiff.
29. As to his standing, if I am to agree with the submission, it does not negate the class action by the other plaintiffs.
30. The law is clear; a class action has sufficient standing where it meets the following requirements: -
a) All intended plaintiffs must be named in the originating process evidenced in writing by their names and signatures affixed
to the originating process.
b) Each intended plaintiffs must give specific instructions evidenced in writing to the lawyers or a third party to act for them.
c) The lead plaintiff must produce authority to show that he is authorised by the class to be their lead representative.
See: Simon Mali v The State [2002] SC690, Tigam Malevo v Keith Faulkner [2009] SC960 and Jackson Tuwi v Goodman Fielder International Limited [2016] SC1500.
Order 5 rule 13 NCR reads:-
"13. Representation; Current interests.
(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more of those persons in the Proceedings..."
(Emphasis added)
31. To me the names and signatures affixed to the writ of summons demonstrates legal capacity and authority to be bound by the decision of the Court in the proceeding. The annexure does not necessarily have to contain the lead representative authority which may in my view be contained in a separate authority to act or representation form. See Simon Mali v The State.
32. The Supreme Court explained the lead representative authority much clearer in Koti v Moli [2022] PGSC 4; SC2191, at [20] and [22] as follows:-
" We are not satisfied that the AA Form constitutes proper and sufficient authority to the applicant to file this application for review as it does not state that it authorises the filing of a review. Further, the AA Form only has a list of purported Chairman of Sub Clans. It is not a list of individual clan members of the Dumuna Akiki Clan. There is also no evidence of the total number of clan members of the Dumuna Akiki Clan and so even if individual members of the clan were listed the percentage of clan members who have purportedly given authority cannot be determined. We refer to the judgment of Mondo v. Moses (2018) N7563 in this regard.
Moreover, there is no evidence that each and every intended person who the applicant purportedly represents has given specific instructions evidenced in writing to their lawyers to act for them and in the prosecution of this review."
(Emphasis mine)
33. I have perused Court file document numbers 33 to 61 and am satisfied of the lead plaintiff's authority.
34. There are three requirements for a competent class action which are:-
35. There is sufficient proof that the lead plaintiff has been duly authorised by the class, if not, this is not a ground for summary disposal as the action can continue pursuant to Order 5 rule 13 NCR.
36. The submission on lack of representational capacity therefore fails.
In a similar fashion Order 5 rule 13 NCR would also apply to correct any defect in the standing of the lead plaintiff. However, I am not persuaded by the submissions as the
lead plaintiff's evidence indicates he is an occupier and with the claim being for constructive trust and fraud commenced by occupiers
of the property, I accept that he has standing.
RULING
37. For all of the foregoing reasons, it is my ruling not to exercise my discretion to summarily dispose of the proceedings. The application
must therefore fail.
Costs of the application are in the cause as this application clarifies any preliminary issues the defendant's may raise at the trial
of the substantive proceedings. Costs are discretionary and I exercise that discretion to order for costs be in the cause.
38. The matter should now proceed to directions and trial. The Registrar is to place this matter for directions.
ORDERS
39. The Orders of the Court are:-
(1) The defendants application for summary disposal of the entire proceeding is refused.
(2) Costs are in the cause.
(3) The Registrar is to place this matter in the July or August 2025 directions listings of this Court or some other time that is available.
(4) In the meantime, the plaintiff should initiate the notice to set down for trial pursuant to Order 10 rule 9A(6) NCR within 14 days of the entry of this order, if it has not already being done.
(5) Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.
Orders accordingly.
_________________________________________________________________
Lawyers for the plaintiffs: Albatross Lawyers
Lawyers for the first, second and third defendants: Bristle Lawyers
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