SC1671

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 7 OF 2013

BETWEEN:
PAGA NO 36 LIMITED
Appellant

AND:
JOSEPH ELEADONA, MANAGING DIRECTOR OF NATIONAL BROADCASTING CORPORATION
First Respondent

NATIONAL BROADCASTING COMMISSION
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

LUCAS DEKENA AS MINISTER FOR LANDS
Fourth Respondent

PNG LAND BOARD
Fifth Respondent

ROMILLY KILA PAT AS ACTING SECRETARY/DEPARTMENTAL HEAD, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Sixth Respondent

Waigani: Collier J, Neill & Liosi JJ
2018: 2nd & 30th May

LAND ACT – procedure for grant of Urban Development Lease - matters of irregularity not fraudulent

LAND REGISTRATION ACT -indefeasibility of title s. 33(1)(a) Land Registration Act – actual fraud & constructive fraud considered  

PRACTICE AND PROCEDURE - effect of trial judge misdirection on fact and law

Facts
The Appellant was granted an Urban Development Lease, pursuant to the Land Act process, to develop land for a town centre. A State Lease was then issued to the Appellant. The Respondent had transmission tower and buildings on the land for decades but no title and was only a permissive tenant of the State. As to section 33(1)(a) Land Registration Act indefeasibility, the trial judge considered whether there had been fraud or constructive fraud in the grant of the UDL and if that affected the issue of the (State Lease) title. The onus of proof and the nature of proof applied was found on appeal to be in error.

Held:

1. The appeal be allowed.

2. The declaration that the Urban Development Lease in favour of the Appellant dated 4 April 2008 over Portion 2127 Volume 32 Folio 22, Milinch Granville, Fourmil Moresby, National Capital District, was null and void ab initio, be set aside.

3. Orders 2, 3, 4, 5 and 6 made by the National Court on 21 December 2012 in the consolidated proceedings WS No 1453 of 2011 and OS No 213 of 2010 be set aside.

4.The Second and Third Respondents pay the Appellant its costs of and incidental to the proceedings in the National Court, and of this appeal, to be taxed if not otherwise agreed.

Cases Cited:
Papua New Guinea Cases

Attorney General Michael Gene v Hamidian-Rad (1994) PNGLR 444 
Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862
Chief Inspector Robert Kalasim v Tangame Holgwa (2006) SC828,
Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215. 
Haiveta v Wingti (No 2) [1994] PNGLR 189
John Kekeno v Philip Undialu (2015) SC1428.
Koitachi Ltd v Walter Schnaubelt (2007) SC870 
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Mapai Transport Ltd v Romilly Kila Pat (2017) N6850.
Namah v O'Neill [2015] SC1617
National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264
Papua Club Inc v Nasaum Holdings Ltd [2004] N2603
Pius Tikili v Home Base Real Estate Ltd (2017) SC1563
Special Reference by the Attorney-General pursuant to Constitution, Section 19 [2016] SC 1534
Telikom (PNG) Ltd v ICCC and Digicel (2008) SC906
Tony Kalem v Yumi Yet Trading (2016) N6458,
Wan Global Ltd v Luxurflex Ltd (2012) SC1199.

Overseas Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Hardcastle v Commissioner of Australian Federal Police (1984) 53 ALR 595
Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; 110 CLR 445
R v White ex parte Byrnes (1963) 109 CLR 665

Counsel
Mr J Griffin QC with Mr G Geroro, for the Appellant
Mr N Diruokonea, for the First and Second Respondents
Mr B Levy, for the Third, Fourth and Fifth Respondents

REASONS FOR JUDGMENT

30th May, 2018 

1.      BY THE COURT: INTRODUCTION: By notice of appeal filed 28 January 2013, the appellant appeals from the whole of the judgment of the National Court given in the consolidated proceedings WS No 1453 of 2011 and OS No 213 of 2010. The decision concerned the Urban Development Lease described in State Lease Volume 32 Folio 22 (the UDL), which was purportedly issued to the appellant, over land covering approximately 25.8 hectares at Waigani described as Portion 2127 Milinch of Granville and Fourmil of Moresby in the National Capital District (the Land). 

2.      At first instance, in WS 1453 of 2011 the appellant sought declarations, an order for the possession of the Land, an order for vacant possession, an injunction and costs in relation to a dispute involving the UDL. In OS No 213 of 2010, the appellant further sought an order for possession of the Land. All relief sought by the appellant was refused by the primary Judge, on the basis that her Honour considered that the UDL was null and void ab initio because the circumstances in which it was granted was fraudulent. Her Honour made a declaration to that effect.

3.       Judgment was delivered by her Honour on 21 December 2012. It is not in dispute that the UDL in respect of which the appellant sought relief at first instance expired in January 2013, that is soon after judgment was delivered by the National Court. As such, in its written submissions the appellant now seeks the following orders:

(1)	That the appeal be allowed;
(2)	That the order that the Urban Development Lease in favour of the Appellant dated 4 April 2008 over Portion 2127 Volume 32 Folio 22, Milinch Granville, Fourmil Moresby, National Capital District, was null and void ab initio, be set aside;
(3)	The Orders 2, 3, 4, 5 and 6 made by the National Court be set aside and that the Second Respondent and the Third Respondent be ordered to pay the Appellant its costs of and incidental to the proceedings in the National Court, and of this appeal, to be taxed;
(4)	Such further or other orders as the Supreme Court sees as appropriate.

Background
Dealings with the Land

4.      The Land the subject of the proceeding has been variously described (as a result of a series of registered cadastral plans) as follows:

•	Initially, in 1962, it was described as Portion 93;
•	In August 1985, it was described as Portion 1455;
•	In March 1992, it was described as Portion 2127; 
•	In May 2009, Portion 2127 was divided into further parts including Portions 2536 and 2537.

5.      The predecessor of the second respondent, the Australian Broadcasting Corporation, through the Administration of the Territory Government of Papua New Guinea, established the Waigani Transmitter Sites on the Land by installing transmitters, associate towers, control stations and auxiliary buildings in or around 1954 (the exact date of installation is unclear). At that time, the Land was part of what was described as Portion 93. On 1 December 1973, the Broadcasting Corporation Act 1973 was certified and came into effect, such that Portion 93 with the transmitting equipment and auxiliary buildings were transferred to the second respondent. 

6.      The appellant has had involvement with the Land since 1989, when it first applied for a commercial lease over the Land by an application for tender form dated 2 March 1989. The relevant legislation at that time was the Land Act (Chapter 185), which is now repealed. In the application for tender form, appellant stated that it would undertake commercial development of the Land in millions of kina. The fifth respondent recommended that the appellant be granted a Town Subdivision Lease (TSL), which was the precursor to a UDL. The appellant was recommended by the fifth respondent for the grant of the TSL over the Land. That recommendation was gazetted on 14 September 1989.
7.      The appellant was subsequently recommended for and granted renewals or extensions of TSLs/ UDLs over the Land, commencing in 1995, 2003 and 2008.

8.      The prior dealings with the Land and the actions undertaken by the appellants and the relevant respondents in relation to the applications for the grants of extensions to the TSLs/UDLs are set out comprehensively in paragraph 27 of the reasons of the primary Judge.

9.      The appellant claimed that its development had been hindered by the continued presence of transmitting towers of the second respondent on the Land. During the period from 1971 to 1991, discussions were held between the second respondent and the third respondent, the Department of Lands, Surveys and Mines, in connection with the possible relocation of the transmitting towers to Bootless Bay or Lae. However, the relocation discussions were discontinued after the third respondent failed to appropriate relocation funds to identify a suitable site.

The 2008 UDL

10.      On or about 5 August 2007, the fifth respondent recommended that the appellant be granted a renewal of the UDL for a further five years (2008 UDL). That recommendation was effected on 4 April 2008 when the appellant was registered as the lessee and issued the 2008 UDL over the Land. The 2008 UDL was set to expire on 16 January 2013. 

11.      On 23 October 2008, the appellant and its agents went on to the Land to undertake a cadastral survey. Workers of the second respondent prevented the appellant from entering the Land. As a result, the appellant claimed that it was unable to continue developing the Land as required by the terms of the 2008 UDL.

The National Court proceedings

12.      The appellant commenced these proceeding because, as it contended, the first and second respondents continuously refused to permit the appellant’s agents on to the land to lawfully conduct peaceful surveying and to enter on to the Land to carry out physical development, causing loss as a result of the appellant being unable to fulfil its obligations under the relevant lease agreement. The appellant also maintained that the second respondent was an illegal occupant and trespasser on the Land. 

13.      At the time of commencing the proceedings, the 2008 UDL was in existence and it remained in existence until after judgment was given by the primary Judge. 

14.      The appellant’s claim was contained in the Further Amended Writ of Summons filed on 11 February 2011. The appellant later abandoned its claims for damages during the hearing in the National Court. Materially the appellant claimed as follows:

•	The appellant at all material times, pursuant to the 2008 UDL, was the registered lessee of the Land and was legally entitled to occupy and enjoy quiet possession of and enter onto the Land.
•	The appellant at all material times had an obligation to the third respondent to survey the Land and conduct improvements on the Land. This was known to the respondents. 
•	The appellant wrote to the Solicitor General on 10 November 2008 requesting the Solicitor General to advise the respondents to permit and/or allow the appellant’s agents to access the Land to conduct a survey. 
•	Notwithstanding repeated requests, the first and second respondents continually refused to permit the appellant’s agents onto the land to lawfully conduct peaceful surveying thereof and to enter onto the land to carry out the subsequent physical development, including building roads, and other infrastructure.
•	The second respondent remained wrongfully in occupation of the Land, and trespassed on the Land and caused trespass to the person of the appellant’s servants and agents.

15.      Essentially, the appellant maintained that it was granted the 2008 UDL in compliance with the Land Act and the Physical Planning Act 1989, and that it is therefore the registered lessee with indefeasible title. 

16.     The first and second respondents raised a defence and a cross-claim against the appellant and the third to sixth respondents, claiming that the 2008 UDL was void as it was granted and or obtained fraudulently, irregularly, negligently, by breach of the law and misrepresentation. The second respondent did not press its claim for damages, and instead only sought that appropriate outcome was the refusal of the relief sought by the appellant at first instance. 

17.      The third respondent, the State, admitted the second respondent’s occupation of the Land prior to the grant of the initial State Lease in 1989. The State submitted that the agreement by which the appellant acquired an interest in the UDL, if any, was entered into by the third respondent by way of a mistake and in breach of the procedures of the Land Act. 

The relevant legislation

18.        The principal legislation in contention before her Honour were sections 69 (1) and sections 104, 105 and 106 of the Land Act 1996 (Land Act) and section 33 (1)(a) of the Land Registration Act 1981 (the LRA). These provisions were as follows:

Section 69(1) of the Land Act provided:

DUTY TO ADVERTISE STATE LEASES

(1)	A State lease shall not be granted without first being advertised in accordance with Section 68 unless the land has been exempted from advertisement under Subsection (2).
(2)	The Minister may exempt land from advertisement for application or tender – 
a.	where the lease is granted to a governmental body for a public purpose; or
b.	where it is necessary to relocate persons displaces as a result of a disaster as defined in the Disaster Management Act 1984; or
c.	where a lessee applies for a further lease; or
d.	where the State has agreed to provide land for the establishment or expansion of a business, project, or other undertaking; or
e.	where the land applied for adjoins land owned by the applicant and is required to bring the holding up to a more workable unit providing that the claim of neighbouring landowners are considered and their view taken into account in deciding whether to exempt the land from advertisement in favour of the applicant; or
f.	where the Department responsible for foreign affairs recommends that land be made available to the applicant for consular premises; or
g.	where the land is requirement for the resettlement of refugees; or
h.	where the applicant has funded the acquisition of the land from customary landowners in order to acquire a State lease over it; or
i.	where a lease is to be granted under Section 99 or 102; or
j.	where a new lease is granted under Section 110, 130 or 131.  

Section 104 of the Land Act provided:

URBAN DEVELOPMENT LEASES TO BE GRANTED OVER LAND IN PHYSICA PLANNING AREAS SUITABLE FOR SUBDIVISION
(1)	Subject to Section 69, where there is Government land within a physical planning area that is suitable for subdivision in accordance with this Division, the land shall, in the first instance, be offered for lease by tender.
(2)	A tender document shall contain the following:
a.	the particulars specified in Section 68;
b.	the information provided by the Chief Physical Planner or his delegate under Section 105; 
c.	such other information as the Departmental head thinks fit or the Minister directs; 
d.	the reserve price for the land
(3)	Land that has been offered for lease in accordance with Subsection (1) may – 
a.	if unleased, be re-offered for lease by tender; or
b.	after the first or any subsequent unsuccessful offer for lease by tender be grated on application under this Act.

Section 105 of the Land Act provided: 

CONDITIONS PRECEDENT TO LAND BEING ADVERTISED FOR SUBDIVISION
Before land is offered for lease under this Division, the Chief Physical Planner or his delegate, shall –
a.	certify – 
i.	that the land is –  
(A)	within a physical planning area; and
(B)	properly zones; and
(C)	suitable for subdivision; and
(D)	suitable for release; and
ii.	after consultation with the relevant authorities, that the State will not incur undue expense in the provision of electricity, water and other services to the proposed subdivision; and
b.	provide – 
i.	a plan showing the location of the land; and
ii.	an assessment of the subdivision potential of the land; and
c.	specify – 
i.	the development conditions that will apply to the lease; and
ii.	the conditions that will apply in respect of the infrastructure and zoning when part or the whole of the land subject to the lease is subsequently surrendered. 

Section 106 of the Land Act provided:

GRANT OF URBAN DEVELOPMENT LEASE OF GOVERNMENT LAND
(1)	A tender shall – 
a.	specify the amount offered; and
b.	be accompanied by – 
i.	a preliminary proposal for the subdivision; and
ii.	a preliminary sketch plan of the proposed subdivision; and
iii.	a preliminary proposal for the infrastructure; and
iv.	evidence of the financial and other resources of the tenderer available for the subdivision.
(2)	When considering tenders or applications for the grant of an urban development lease, the Land Board shall consist of five persons including – 
a.	the Chairman or a Deputy Chairman; and
b.	the Surveyor General or his delegate; and
c.	the Chief Physical Planner or his delegate.
(3)	A tender of an amount less than the reserve price is invalid and shall not be considered.
(4)	The successful tenderer shall pay to the State the amount of his tender.
(5)	The successful tendered is entitled to an urban development lease of the land the subject of the tender, in accordance with the tender notice. 
(6)	The Minister is not bound to accept the highest or any tender.
(7)	The grant of an urban development lease does not imply an approval of the preliminary proposals for the subdivision and infrastructure of the preliminary sketch plan of the proposed subdivision which are lodged with the tender in accordance with Subsection (1). 

Section 33(1)(a) of the LRA provided:

(1)	The registered proprietor of an estate or interest holds it absolutely free of all encumbrances except – 
a.	In the cause of fraud…

The decision of the primary Judge

19.      As a preliminary issue, the primary Judge was required to determine whether the issues raised by the respondents in respect of the validity of the 2008 UDL were properly brought by filing a defence and a cross-claim. The appellant contended at first instance that the allegation that the UDL was invalid was not properly raised by the respondents, since it was not brought before the Court as part of a judicial review application. The primary Judge rejected this contention.

20.      The primary Judge held that the mandatory requirements in ss 69(1), 104, 105 and 106 of the Land Act were breached, rendering the 2008 UDL void ab initio. The primary Judge then considered whether, in light of those many breaches, the appellant still had an indefeasible title. 

21.      The LRA adopts the Torrens System, under which the registration of lease can give an indefeasible title, subject to the exceptions enumerate in s 33 of the LRA, one of which is fraud (s 33(1)(a)). The primary Judge found that:
 
•	there had been fraud perpetrated by the appellant (at paragraph 245 of the judgment), 
•	the Land Board may have been coerced by the appellant to hear the application in relation to the Land (at paragraph 255 of the judgment), and 
•	the Chief Physical Planner in 2006 had been punished by being “sidelined” in 2006 after defying the Minister and refusing to give a certification in respect of the Land to permit the appellant to take a lease (at paragraph 206 of the judgment). 

22.      In particular her Honour relied on the following comment of Gavara-Nanu J in Papua Club Inc v Nasaum Holdings Ltd [2004] N2603:

However, it suffices to say that I do not find the two judicial precedents in Emas Estate Development –v- John Mea and Others (supra) and Mudge -v- Secretary for Lands (supra) in any way conflicting. The effect of the principle in Emas Estate Development -v- John Mea and Others (supra) as applied in Steamships Trading Company Ltd -v- Minister for Lands and Physical Planning and Others (supra) and Hi Lift Company -v- Miri Sata and Another (supra) is that, if there are serious and gross or flagrant breaches of the mandatory statutory procedures as set out in the Land Act, in the issuance of a title, then such breaches would operate to vitiate the validity and the indefeasibility of the title, although fraud may not be involved. Thus, the title would be invalid just like the title which is obtained through fraud. Thus, it is clear from this that, Emas Estate Development -v- John Mea and Others (supra) has introduced a new and added ground on which a title may be invalidated. It is new in the sense that it is outside the exceptions enumerated in s. 33 of the Land Registration Act.
(emphasis added)

23.      Her Honour concluded:

I agree entirely with his Honour and say this, why have processes, when they will be flagrantly and deliberately breached by those who are able to because they have the ability to do so. A court must not allow overwhelming evidence on the gross abuse of process to slip by simply because of the argument that a Plaintiff has not filed the correct originating process, especially where evidence has been called and tested, as in trial. For those reasons, quite apart from the fraud perpetrated by the plaintiff, the registration of the 2008 UDL does not save it from invalidity.

The grounds of appeal

24.        The appellant raised sixteen grounds in its notice of appeal:

(a)	Her Honour erred in fact and in law in declaring that the grant of the Urban Development Lease (UDL) to the Appellant Paga No. 36 Limited on 4 April 2008 over land described as Portion 2127 (albeit Portion 93, Portion 2356 and Portion 2357) (the land) was null and void ab initio;

(b)	Her Honour erred in fact and in law in declaring that the Second Respondent (the NBC) was not a trespasser on the land described in sub-paragraph (a) hereof and that it had equitable interests and rights entitling it to remain on such land.

(c)	Her Honour erred in fact and in law in failing to find that by reason of the operation of Section 33 (1) of the Land Registration Act (No. 2 of 1982), the Appellant, by reason of its registration as title holder in respect of the land, held its estate or interest as title holder absolutely free from all encumbrances and that the Appellant was thereby entitled to occupy and enjoy quiet possession of the land;

(d)	Her Honour erred at law and in fact in finding that the Appellant’s registration as title holder of the land was vitiated by fraud; 

(e)	Her Honour erred at law and in fact in finding that the Appellant’s registration as title holder of the land was vitiated by fraud in circumstances where there existed only mistakes or errors amounting to no more than negligence, and there was a clear distinction between negligence and fraud and that the existence of negligence was insufficient to reach a conclusion of fraud, and fraud cannot be substituted for negligence when there is only a finding of negligence;

(f)	Her Honour erred at law and in fact in failing to hold, in circumstances where there was no finding of actual fraud or deceit on the part of any servant or agent of the Plaintiff, that any negligence or breach of any provision of the Land Act in relation to the grant to the Appellant of the UDL over the land on 4 April 2008, did not constitute fraud within the meaning of Section 33 (1) (a) of the Land Registration Act; 

(g)	Her Honour erred at law and in fact in failing to hold that the Respondents ought to have commenced judicial review proceedings pursuant to Order 16 Rule 1 of the National Court Rules if it sought to challenge the validity of the UDL granted to the Appellant in respect of the land, especially in circumstances where, by reason of the public notice element of its registration as title holder in respect of the land, the Appellant had a prima facie right to occupation and quiet enjoyment of the land to the exclusion of the Second Respondent and all others;

(h)	Her Honour erred at law and in fact in failing to hold that dereliction in the performance of their duty by servants or agents of the Third, Fourth and Fifth Respondents giving rise to breaches of provisions of the Land Act in respect of the grant of the UDL to the Appellant (where there was no finding of actual fraud or deceit on the part of any servant or agent of the Appellant) did not constitute fraud within the meaning of Section 33 (1) (a) of the Land Registration Act so as to vitiate the registration of the Appellant as titleholder in respect of the land;

(i)	Her Honour erred at law and in fact in failing to hold that negligence or dereliction in the performance of their duty by servants or agents of the Third, Fourth and Fifth Respondents giving rise to breaches of provisions of the Land Act in respect of the grant of the UDL to the Appellant (where there was no finding of actual fraud or deceit on the part of any servant or agent of the Appellant) did not constitute fraud within the meaning of Section 33 (1) (a) of the Land Registration Act so as to vitiate the registration of the Appellant as titleholder in respect of the land;

(j)	Her Honour erred at law and in fact in finding that the Appellant was a speculative company in circumstances where the weight of evidence supported a finding that the Appellant was a subsidiary of a large company (Fincorp) which would have met any of the Appellant’s financial obligations as and when they fell due;

(k)	Her Honour erred at law and in fact in finding that the Second Respondent had a licence to occupy the land;
(l)	Her Honour erred at law and in fact in failing to find that the Second Respondent was a trespasser on the land;

(m)	Her Honour erred at law and in fact in finding (at 183) that it was undisputed that any relocation of the NBC from the Waigani Land to another site would be a lengthy process that would take a period of some years at a cost of some millions of Kina;

(n)	Her Honour erred at law and in fact in finding (at 154) that there was no evidence that court proceedings commenced by Jerry Luru had progressed for over 5 years;

(o)	Her Honour erred at law and in fact in holding (at 230) that the documentary evidence constituted by recommendation sheets tendered as evidence as to which PNG Land Board members were present at a meeting of such board on 10 August 2007 should be preferred to the oral evidence adduced by two witnesses called on behalf of the Appellant on that issue;

(p)	Her Honour erred at law and in fact in holding (at 239) that the Second Respondent had been deprived of the opportunity to make a case for itself either before the Land Board or the Registrar of Titles in respect of the grant to the Appellant of the UDL in circumstances where at all material times notice of the grant/s of the UDL/s to the Appellant was duly published in the National Gazette.

25.      The appellants submitted that, because the 2008 UDL had expired following the publication of judgment by the primary Judge, a number of the grounds of appeal had fallen away. Further, it appears that some of the relief sought by the appellant fell away because of the expiration of the 2008 UDL. 

26.      At the hearing Mr Griffin QC for the appellant submitted that, in pressing the grounds of appeal, the appellant relied on three principal errors of the primary Judge. Those errors were as follows:

(1)	The primary Judge erred by placing the onus of proof in respect of relevant issues on the appellant. 
(2)	The primary Judge did not direct herself correctly in relation to the nature of the proof required
(3)	Even if the respondents did not bear the onus of proof of fraud on the part of the appellant, the evidence could not properly have been held to justify the striking down of an otherwise indefeasible title.

27.      These alleged errors of law on the part of the primary Judge were all referable to grounds of appeal (a), (c), (d), (f), (h) and (i), and in particular the issue of fraud.

28.      Accordingly we will confine our consideration of the appellant’s case to the specific grounds of appeal it pressed, and in particular the three alleged error of law it claimed on the part of the primary Judge.

Consideration
Issues of fraud and indefeasibility
Onus of proof

29.      In matters involving allegations of fraud under s 33 (1) of the LRA, the onus of establishing such fraud, or that any of the exceptions in s 33(1) of the LRA apply, lies with the party challenging the title. We respectfully adopt the approach of Cannings J in Awaincorp Limited v The Honourable Jim Kas MP (2013) N5862 where his Honour rejected the argument that the plaintiff bears the onus of proof in demonstrating that it has good title. His Honour explained:

6.	… The fact that the leases have been granted to and registered in the name of the plaintiff gives rise to the presumption that it has good and indefeasible title subject only to the exceptions prescribed by Section 33(1) of the Land Registration Act (Mudge v Secretary for Lands [1985] PNGLR 387). The onus of proving a case of fraud or that any of the other exceptions in Section 33(1) applies rests with the person who challenges the title of the registered proprietor (Niugini Properties Ltd v Jeffery Londari (2014) N5727). In this case it is the defendants who bear the onus of proving that the plaintiff’s title is defective.
(Emphasis added.)

30.      In the present matter, the primary Judge stated at paragraph 209 of the judgment:

In my view, it is Paga who must show that it has complied with proper processes. Paga must show that the Chief Physical Planner or his delegate certified and that all the conditions precedent in s. 105 were complied with.

31.     It is clear that her Honour placed the onus on the appellant to disprove the alleged fraud when, indeed, the onus ought to have been borne by the respondents. This is an error of law, as submitted by the appellant.

Nature of proof

32.      It is well-established that the ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities: Namah v O'Neill [2015] SC1617, see also Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; 110 CLR 445 at paragraph 2. Relevantly, Mason CJ, Brennan, Deane and Gaudron JJ continued in Neat Holdings at paragraph 2:

That remains so even where the matter to be proved involves criminal conduct or fraud (See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. (Emphasis added.)

33.      In this case, the nature of the allegation of fraud that the respondents had to prove was very serious. It follows that strong evidence would be required to support the allegation if it were to be determined on the balance of probabilities. However, as to the nature of such evidence, Latham CJ said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-4:

There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue—See Wills’ Circumstantial Evidence (1902), 5th ed., p. 267, note n: “Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same.”
In criminal cases it has long been established that there must be a moral certainty of the guilt of the accused; the presumption of innocence must be definitely displaced either by direct evidence of facts which constitute the offence charged or by evidence from which the jury can draw an inference which satisfies the mind beyond reasonable doubt. The difference between the civil standard of proof and the criminal standard of proof has been examined and explained in this court in the case of Brown v. The King (1913) 17 C.L.R. 570. See particularly at pp. 584 et seq. and pp. 595, 596. Accordingly I am not prepared to adopt the view, which was suggested in argument, that the difference between the criminal and civil standards of proof is really only a matter of words. (Emphasis and citations added.)

34.      Dixon J also said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3:
It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” (Cf. Mowatt v. Blake (1858) 31 LT. (O.S.) 387; Kisch v. Central Railway Co. of Venezuela Ltd. (1865) 12 L.T. 295; Lumley v. Desborough (1870) 22 L. T. 597). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson (1855) 10 Moo. P.C.C. 502, at pp. 531, 532; 14 E.R. 581, at p. 592; Boyce v. Chapman (1835) 2 Bing. N.C. 222; 132 E.R. 87; Vaughton v. London and North Western Railway Co. (1874) L.R. 9 Ex. 93; Hurst v. Evans (1917) 1 K.B. 352; Brown v. McGrath (1920) S.A.L.R. 97; Motchall v. Massoud (1926) V.L.R. 273; Nelson v. Mutton (1934) 8 A.L.J. 30; Gerder v. Evans (1933) 45 Ll L. Rep. 308, at p. 311; sed quœre as to the statement of Swift J. in Herbert v. Poland (1932) 44 Ll L. Rep. 139. at p. 142; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
(Emphasis and citations added.)

35.      In Special Reference by the Attorney-General pursuant to Constitution, Section 19 [2016] SC 1534 SC No. 7 of 2014, a case involving an allegation of misconduct in public office,  Higgins J observed that because it was not a criminal proceeding, the standard of proof required would prima facie be less than beyond reasonable doubt. His Honour did, however, find at paragraph 230 that the standard “may, having regard to the seriousness of the allegations, be more than the mere balance of probabilities” citing the settled authorities of Briginshaw, R v White; ex parte Byrnes (1963) 109 CLR 665 and Hardcastle v Commissioner of Australian Federal Police (1984) 53 ALR 595.

36.      His Honour continued in Special Reference:

231. In Re Tribunal; Re the Hon James Eki Mopio [1981] PNGLR 416, the Court noted that the standard of proof may require a greater satisfaction depending on the gravity of the allegations made. Indeed Miles J was of the view that in some cases the Tribunal might not be content to act upon a finding unless satisfied of it beyond reasonable doubt.
(Emphasis added.)

37.      In our view, it was insufficient to determine the serious accusation of fraud in this matter on the balance of probabilities. The issue ought to have been considered at a higher standard of proof. The allegations in this matter were serious assertions that demanded proof commensurate to the standard required in criminal proceedings – that is, proof beyond reasonable doubt. 

38.      It follows that we find the primary Judge failed to apply the correct standard of proof in concluding that the appellant’s conduct had amounted to fraud in the course of obtaining title to the Land pursuant to the 2008 UDL.

Evidence

39.      Next, we accept the submission of the appellant that the evidence at the trial did not support a finding that the appellant’s indefeasible title was infected by fraud such that its title to the Land was void.

40.    Her Honour found that flagrant breaches of relevant legislation by the appellant had amounted to fraud, in three respects.

41.      First, her Honour found that there was no certification of the Land by the Chief Physical Planner in breach of section 105 of the Land Act. In particular her Honour found as follows:

205. These submissions relate to the allegations on the breach of sec. 105 of the Land Act, there was no certification by Mr Ofoi before Portion 2127 was offered for lease. Amongst other submissions, the NBC submits that that Land was not suitable for development within the meaning of s. 105 (a)(i)(D) because it was not vacant. It was improved land occupied by the NBC.

206. Mr Ofoi the Chief Physical Planner refused to certify, before Portion 2127 was offered for lease to Paga. Mr Ofoi pointed out that on 15th August, 2006 because he could not give a certificate under s. 105 (a)(i)(D) in respect of Portion 2127 given the new Zoning included portions 2536 and 2537. He was then sidelined in 2006 shortly after he made his position clear, i.e. his refusal to certify. Mr Ofoi had defied instructions said to have been given by the Minister on 9th September, 2005 that a lease be given to the Plaintiff for a period of 5 years from March 2005.

207. Thereafter the matter was then referred to the Director of Land Management Services, Mr Katakumb.

208. Paga submits that the NBC should have called a member of the Land Board to give evidence on what was appropriate certification and that the onus of proof vested upon NBC to that. There is form for the sec. 105 certification…

209. In my view, it is Paga who must sho that it has complied with proper processes. Paga must show that the Chief Physical Planner or his delegate certified and that all the conditions precedent in s. 105 were complied with. 

210. It is not for the NBC to do that.

42.     However, there was evidence before the Court that Mr Ofoi, the Chief Physical Planner, wrote to the Chairman of the PNG Land Board on 7 August 2007, stating:
…
Dear Sir

SUBJECT: UDL APPLICATIONS FOR PNG LAND BOARD MEETING NO. 05/2007

We hereby submit our assessment of the applications for UDL over Portions 2007, Granville, Portion 2580, Granville, Portion 2577, Granville, Portion 1567, Granville, Portions 2536 and 2537 Granville, and Lot 26 Section 81, Matirogo (Gabutu).
We have made the assessments based on a number of factors: Land suitable for UDL; Evidence of financial capability for construction of infrastructure services; and, submission of proposals for subdivision of the land.
Our assessment and recommendations are provided herewith.
We trust that the members of the Board would take these recommendations in your decisions [sic] making.
For your attention.

Yours faithfully,
[signed]

JOHN OFOI
CHIEF PHYSICAL PLANNER
DIRECTOR-PHYSICAL PLANNING

Attached to the letter was a table spanning three pages that included the Chief Physical Planner’s findings (AB tab 60).

43.      Her Honour noted at paragraph 216 that Mr Ofoi had stated, under cross-examination, that the letter was only a recommendation. However we are not aware of any specific requirements to make a certification in accordance with s 105(a) of the Land Act that would preclude it from taking the form of a letter. Mr Ofoi’s letter substantially complied with the requirements of s 105 of the Land Act. To that extent there was evidence before the Court that certification had been given before the Land was offered for lease.

44.      Second, her Honour accepted the submission of the second respondent that the UDL was not advertised for tender as required by section 104 of the Land Act, and that there was no basis for exempting it from the tender process pursuant to section 69 (2) of the Land Act. However, annexed to the affidavit of Pepi S Kimas sworn on 3 November 2010 before her Honour (at AB tab 87 p 1822) is a notice signed under s 69(2)(d) of the Land Act in which Mr Kimas, a delegate of the Minister for Lands and Physical Planning exempted the Land from the advertising requirements (the notice). The notice read:

LAND ACT 1996
NOTICE UNDER SECTION 69 (2) (d)

I, Pepi Steven Kimas, a Delegate of Minister for Lands and Physical Planning by virtue of the power conferred in by Section 69 (2) (d) of the Land Act 1996 and all other powers me enabling under this Division not with that the land has been offered for leave by tender.
The special reason being that the administrative delays and Court proceeding over this UDL has caused major setback in the company developing the property was further experienced financial pardon to the Company, therefore, further delay will cause the State incur costs through court proceedings. This special reason is for the renewal of the UDL be approved and exempted from advertisement.
SCHEDULE
All that piece of land described as:
Portions 2127 Milinch Granville, Fourmil Moresby, National Capital District.
Dates this 25th day of July, 2007.

[signed]
PEPI S. KIMAS
Delegate of Minister for Lands and Physical Planning.
(Original emphasis. Errors in original.)

45.      This evidence supports a finding that the Land was exempted because the State agreed to supply the Land for the establishment of, inter alia, a “… project, or other undertaking …” pursuant to s 69(2)(d) of the Land Act. There is no material before us to indicate that the grant of the exemption from advertising in these circumstances was unlawful.

46.      Third, section 106 (2) of the Land Act prescribes that the Land Board, when considering tenders or applications for the grant of UDLs, must consist of five persons as prescribed by that section.

47.      At the hearing the appellant conceded that any decision by an improperly constituted Land Board would be invalid.

48.      It was not disputed that, at material times, Recommendation Sheets used during meetings of the Land Board when considering tenders or applications (at AB tab 82) included spaces for signatures of attendees at meetings. Ms Joan Usapuna, an Executive Office at the Land Board, was cross-examined at the trial as to whether she could explain why some of the recommendations had five signatures, some had four signatures and others had only three signatures.

49.      Ms Usapuna explained that the Recommendation Sheets varied in the number of signatures because (at AB tab 95 p 2749 ln 21-32):

… three are the land board members and the other two are the technical officers, delegates of the secretary’s office. They come in to give advice to the board and when they do not agree with any decisions they do not sign the recommendations.

and:

… if the board members decide to make recommendation on the particular item they do not sign, they walk out.

Ms Usapuna was unable to remember who was present at each and every meeting: AB tab 95 p 2750 ln 3.

50.      In addition to Ms Usapuna, Ms Fatima Moses, a lawyer who was a witness at the trial, also recalled attending a Land Board meeting where there were five or six people in the room (AP tab 95 p 2668 ln 42). Similarly, Mr Ken Yapane, a Quality Surveyor, also observed “approximately six people” at a Land Board meeting who were “… probably land board members …” (AP tab 95 p 2773 ln 45; p 2774 ln 11).

51.      We consider that the witnesses’ evidence as a whole did not prove to the requisite degree the claim that the composition of the Land Board meeting failed to satisfy s106 (2) of the Land Act.

52.      In any event, the appellant submitted that if this Court found the alleged statutory breaches were substantiated, such breaches would still not have defeated the appellant’s registered title on the basis of fraud.

53.      The meaning of “fraud” as it appears in s 33(1)(a) of the LRA and the applicability of the doctrine of indefeasibility were extensively considered by Gavara-Nanu J in Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178. We respectfully refer to the following observations of his Honour:

The word ‘fraud’ in s. 33 (1) (a) of the Land Registration Act, is not defined anywhere in the Act, but s.45 (1) makes it clear that fraud means more than constructive or equitable fraud. In this regard, it is noted that s. 146 (d) and (e) also provide for the ejectment of a registered proprietor from land if the title is obtained through fraud. Section 146 (4) makes it even more clear although not specifically expressed, that fraud in that section does not refer to fraud by the person from whom the registered proprietor acquired the title or the estate; rather, it is fraud by the registered proprietor himself or herself when acquiring title. 

Thus, it is implicit from these provisions that “fraud” in s.33 (1) (a) means fraud committed by the registered proprietor or actual fraud. That is the only ground upon which a registered proprietor’s title can be rendered invalid. 

Turning now to the authorities on this point, I find that the principle is quite neatly illustrated in Assets Company Ltd -v- Mere Roihi and Others [1905] AC 176. The case discusses what may constitute or amount to fraud under the Torrens System. The relevance and the applicability of the Torrens System to this jurisdiction was quite clearly expressed by Kidu CJ., in Mudge -v- Secretary for Lands [1985] PNGLR 387, at 390:

“That third respondent has a State lease registered under the Land Registration Act (Chapter No. 191) and although the appellants have raised eight questions of law (including constitutional laws) the real question for determination by this Court is whether, apart from exceptions enumerated in the Land Registration Act, s.33, land once registered attracts the principle of indefeasibility of title. This Act and its fore runners – the Real Property Ordinance (Papua) and the Land Registration Ordinance (New Guinea )– are based on Australian Acts. They all reflect what is commonly known as the Torrens system of land registration. Under legislations based on this system (in Australia and New Zealand) it is settled law that, apart of exceptions mentioned in the relevant legislations, once land is registered under the Torrens system the owner acquires indefeasibility of title”.(my underlining).

In Assets Company Ltd -v- Mere Roihi and Others (supra), members of a Maori community were the traditional owners of the land. A person by the name of Cooper fraudulently acquired the land from the indigenous community. Ownership of the land changed several times. The appellant company was the subsequent purchaser and the registered proprietor under the New Zealand Land Transfer Act 1870, which corresponds with the Land Registration Act. The respondents challenged the appellant company’s title on the basis, inter alia, that its registration as owner was procured by fraud. 

The evidence showed that the agents of the appellant company took certain documents to the Registrar and had them registered, which according to their purport and effect clearly entitled and which the company’s agents also believed entitled the company to be registered as the owner of the land. There was no evidence or suggestion whatsoever of any fraudulent statement or misrepresentation made to the Registrar by the appellant company’s agents nor were there any evidence or suggestion of bribery, corruption or dishonesty offered or displayed by the appellant company’s agents in their dealing with the Registrar. 
On appeal, the Privy Council held that fraud meant actual fraud by the registered proprietor, involving personal dishonesty. It did not mean constructive fraud.
…
In Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) and Others -v- Registrar of Titles and Others (2001) 24 WAR 299, Owen J at 328 stated the same principle in this way:

“The exception “in fraud cases” is limited to fraud by or on behalf of the party who obtains registration: see Breskvar (at 384). Put in a slightly different way, the fraud which must be proved in order to invalidate the title of a registered proprietor must be brought home to the person whose registered title is impeached or to his or her agents: see Assets Co. Ltd (at 210). It is a fraud for which the person who becomes registered can be said to be responsible: see Registrar of Titles (WA) –v- Franzon (1975) 132 CLR 611 at 618”.

At 336 his Honour said:

“Nonetheless, indefeasibility is at the heart of the Torrens system. As was said in Franzon (at 620-621) “the protection of the registered proprietor is paramount”. This was reiterated in a note in (1992) 66 ALJ 507 where the author said: “Public confidence in the Torrens system depends on the rock solid effect of registration.” The principle of indefeasibility of title is well understood by lawyers and by the commercial community. In my view it must be given the utmost respect and should be applied according to its tenor”.

It can be seen here that, his Honour followed Assets Co. Ltd -v- Mere Roihi and Others (supra) and Breskvar -v- Wall (1971) 126 CLR 376, and thus Frazer -v- Walker [1967] 1 AC 569. See, also Tanzone Pty Ltd -v- Westpac Banking Corporation [1999] ATPR 46-195. All these cases affirm the principle or the view that fraud means fraud committed in the act of acquiring the title by the registered proprietor or actual fraud. 

It can therefore be deduced from these principles that once the land is registered, the owner attains indefeasibility of title which cannot be invalidated by any unregistered interests or mere irregularities except fraud by the registered proprietor or actual fraud.

As I said, it is in my opinion settled in this jurisdiction that fraud in s. 33 (1) (a) of the Land Registration Act, means actual fraud. Although that is not expressed in the section, it is implicit from the provisions of the Act, to which I adverted earlier. Same inference can be drawn from the decided cases. For instance, Mudge -v- Secretary for Lands and Others (supra) which adopted Frazer -v- Walker (supra) and Breskvar -v- Wall (supra). The two latter cases adopted the principle in Assets Company Ltd -v- Mere Roihi and Others (supra). See, also Friedman -v- Barret, Ex-parte Friedman [1962] QD.R 498 and Templeton -v- Leviatham Pty Ltd (1921) 30 CLR 34. In all these cases, it was held that fraud meant actual fraud. Similar approach was adopted in Butler -v- Fairclough and Another (1917) 23 CLR 78, where the High Court of Australia at 90 and 97, said that fraud meant actual fraud importing personal dishonesty or moral turpitude.

In Mudge -v- Secretary for Lands and Others (supra) the Supreme Court at 395 said:

“… The New Zealand approach resulted in an eventual appeal to the Privy Council in the celebrated case of Frazer -v- Walker [1967] 1 AC 569 and although their Lordships were not obliged by the facts before them to resolve the dispute between the Australian and New Zealand courts, they did go out of their way to support the principle that registration of a void instrument was, in the absence of fraud, “effective to vest and divest title and to protect the registered proprietor against adverse claims”.

The decision in Mudge -v- Secretary for Lands and Others (supra) being the decision of the Supreme Court is binding on me. Needless to say that the principle in Assets Company Ltd -v- Mere Roihi (supra) which was adopted and applied in Mudge -v- Secretary for Lands and Others (supra) through Frazer -v- Walker (supra) and Breskvar -v- Wall (supra), is a sound and well established principle in this jurisdiction. I therefore have no difficulty in adopting and applying it in this case as a binding precedent. See, Roslyne Cecil Kusa -v- Motor Vehicles Insurance (PNG) Trust – N2328 and Scruttons -v- Midland Cilicones Ltd [1962] 2 WLR 186 at 199. I also, with respect, adopt the observations made in Conlan and Others -v- Registrar of Titles and Others (supra) as principles applicable to indefeasibility of the registered proprietor’s title under the Land Registration Act. 
(Bold formatting added.)

54.      In the later decision of Koitachi Ltd v Walter Schnaubelt (2007) SC870 at [25], the Supreme Court specifically adopted the analysis and reasoning of Gavara-Nanu J in the Papua Club case. 

55.      The findings expressed by the National and Supreme Courts in the Papua Club and Koitachi cases indicate a clear departure from the view of Amet J (as he then was) in Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215. In that matter, his Honour stated in respect of the Torrens System:

… I do not believe that the system is necessarily appropriate in circumstances such as this, where an individual land owner is deprived of his title to land by irregular procedure on the part of officials and a department of the State, to the advantage of a private corporation. I do not accept that quite clear irregularities and breaches of the statutory provision should remain indefeasible. I believe that, although those irregularities and illegalities might not amount strictly to fraud, they should, nevertheless, still be good grounds for invalidating subsequent registration, which should not be allowed to stand …
(Emphasis added.)

With respect we, too, decline to follow the approach in Emas case.

56.      In circumstances involving allegations of statutory breaches amounting to fraud, it is important to establish whether or not the registered proprietor was involved in such breaches. For example, in Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, the Court found that there was “overwhelming evidence” to support findings that title over a property was “issued irregularly and fraudulently” based on “clear evidence” of “gross and flagrant abuses and breaches of the mandatory provisions of the Land Act by the applicant and the officials of the Department of Lands when forfeiting the first respondent’s title to the property and granting it to the applicant” (at [11], [12], and [13]).

57.      In Tony Kalem v Yumi Yet Trading (2016) N6458, Nablu J considered a matter similar to the appeal currently before this Court in which it was alleged several mandatory procedures were ignored in the granting of a State Lease. It also involved issues with advertising under s 69(2) of the Land Act and whether the Chief Physical Planner had properly certified the conditions precedent in s 105 of the Land Act. Her Honour found that “there were serious breaches of the mandatory procedure under the Land Act which cannot be overlooked by this Court”, that the breaches were “serious errors of law committed by the decision-maker” and “the Department of Lands failed to advertise the tender” (at [79]). Her Honour proceeded to determine whether the registered proprietor was implicated in the fraud (at [81]) and found that the conduct amounted to “actual fraud and therefore the registration of the State Lease cannot stand” (at [83]). We consider the approach undertaken by Nablu J is the correct procedure to adopt when establishing whether or not a registered proprietor is complicit in fraud.

58.      In the present matter, there is no evidence to show that the registered proprietor was complicit in actual fraud. Even if constructive fraud would suffice to constitute fraud within the meaning of section 33 (1)(a) of the LRA (and we express no opinion on this point) there is no evidence from which we can draw an inference of constructive fraud on the part of the appellant in this case (for constructive fraud see, for example, Pius Tikili v Home Base Real Estate Ltd (2017) SC1563 and Mapai Transport Ltd v Romilly Kila Pat (2017) N6850). 

Conclusion on issues of fraud

59.      We conclude that the finding of fraud against the appellant is unsubstantiated, as is the finding that the UDL was void ab initio. No exception to the appellant’s indefeasible title in terms contemplated by section 33 (1)(a) of the LRA has been established.

60.      It follows that the appellant has succeeded on grounds (a), (c), (d), (f), (h) and (i) in its notice of appeal. 

Is judicial review the only basis for holding the UDL null and void?

61.      The appellant alleges that there is a separate basis on which the holding that the UDL was null and void ab initio should be reversed, which is that the matters raised by the respondents in relation to the invalidity of the UDL could only be brought before the Court by way of judicial review. The issues raised by the respondent sought to attack the processes followed in the granting of the UDL. The appellant submits that these arguments were in reality an application for an order in the nature of certiorari, which would have the effect of quashing the decision to grant the UDL.

62.      The appellant submits that Order 16(1) of the National Court Rules requires that such a proceeding is brought by judicial review and that this is the only means by which the UDL could be held to be null and void. In Attorney General Michael Gene v Hamidian-Rad (1994) PNGLR 444, Order 16(1) of the National Court Rules was said to be a mandatory requirement. This was reaffirmed in Telikom (PNG) Ltd v ICCC and Digicel (2008) SC906 and Wan Global Ltd v Luxurflex Ltd (2012) SC1199.

63.      In our view, there was no error in the approach of the primary Judge in holding that the respondents’ contentions were properly brought before the Court in the circumstances of the case. The respondents, who were the defendants to the claim at first instance, were not required to comply with Order 16(1). Order 16(1) provides:  

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.

64.    The terms of Order 16(1) indicate that it only applies where an application is sought to be made by the relevant party. The respondents in this case did not seek to make such an application – rather the respondents had been served with a writ of summons to which they were required to respond by way of a defence and cross-claim. In this respect, the respondents were effectively constrained by the rules of pleadings under the National Court Rules.

65.      Importantly, too, we note the observation of her Honour that the filing of a judicial review application by the respondents would have led to duplication of litigation and potentially an abuse of process (in that it could be considered a collateral attack on the claim brought and the relief sought by the appellant). The primary Judge referred to the case of National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264 by analogy. In that case, the Supreme Court held that, if a party could have obtained a declaration or injunction as part of an application for a remedy under Order 16(1) in the judicial review proceedings did not do so, it would be an abuse of process to commence separate proceeding by originating summons or writ of summons.   

66.      In such circumstances, it was appropriate for the respondents to raise the issues as to the validity of the UDL in response to the claim by the appellant and not by way of separate judicial review proceedings. This ground of appeal fails. 

Standing

67.      In written submissions, the second respondent sought to have the appeal confined to the issue of costs on the basis that the 2008 UDL expired in January 2013, meaning that the appellant does not have sufficient interest in the subject land and therefore does not have locus standi to pursue the current litigation. In effect, this is a re-agitation of the arguments put before the Supreme Court at the hearing of the objection to competency of the appeal. Those arguments were rejected in the decision given by David and Kassman JJ on 22 July 2016, and the appeal continued.

68.      In any event, we consider that the submissions of the second respondent on this point are not substantiated. We accept the submissions of the appellant made at the oral hearing that there is utility in the appeal because of the implications for the appellant's reputation and its reduced ability to obtain further UDLs over the Land where there has been a finding that it has acted fraudulently.

Strike-out points

69.        Finally, in written submissions the third to sixth respondents sought to have the appeal dismissed in its entirety on the basis of incompetency. They claim that the notice of appeal does not present any meritorious grounds in that they are not clear, but rather frivolous, vexatious and unmeritorious. 

70.      The third to sixth respondents have not filed a notice of objection to competency to this effect. We therefore consider that it is inappropriate, at this late stage, to entertain such an objection, especially since detailed submissions explaining the grounds of appeal have been prepared.

71.      The third to sixth respondents alternatively submit that grounds 3(a), (b), (d), (j), (k), (l), (m), (n) and (o) of the notice of appeal should be struck out because they are frivolous and vexatious and therefore an abuse of process. Accordingly, the third to sixth respondents submit that these grounds do not meet the requirements of Order 7 Rules 9(b) or conform to the principles in Haiveta v Wingti (No 2) [1994] PNGLR 189 and John Kekeno v Philip Undialu (2015) SC1428.

72.      We reiterate there has been no application put before the Court to strike out the grounds of appeal and that this matter was raised for the first time in written submissions filed on 30 April 2018, only two days before the hearing of the substantive appeal. The third to sixth respondents pre-empted this concern by referring to Chief Inspector Robert Kalasim v Tangame Holgwa (2006) SC828, where the Supreme Court held that objections could be raised at any stage of the proceedings at the discretion of the Court. In these circumstances, we do not consider that it is appropriate to strike out these grounds of appeal on the basis of this objection at this very late stage. The third to sixth respondents are required either to meet the all of the grounds set out in the notice of appeal or to rely on a notice of contention. 

73.      In any event, we note that, ultimately, the submissions of the appellant addressed only grounds of appeal relevant to the question of fraud. To that extent any application for strike out would be redundant.
Conclusion

74.      We will allow the appeal, and set aside the whole of the orders of the National Court, inclusive of the declaration that the UDL was null and void ab initio. 

75.      We understand that the costs in this case have been a live issue between the parties. However all parties to the appeal sought costs in the appeal. No party has sought a separate hearing in respect of costs. No submission has been advanced to warrant any order other than that the costs should follow the event. As the appellant has been successful in the appeal, the appropriate order is that the second and third respondents pay the appellant’s costs of and incidental to the proceedings in the National Court, and of this appeal, to be taxed if not otherwise agreed.
______________________________________________________________
Geroro Lawyers:  Lawyers for the Appellant
National Broadcasting Corporation in House Lawyers: Lawyers for the First and Second Respondents
Warner Shand Lawyers: Lawyers for the Third, Fourth and Fifth Respondents