N3711

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 207 OF 2008

BETWEEN

TAKOA PASTORAL CO. LIMITED
Plaintiff

AND:

DR. PUKA TEMU, MINISTER FOR LANDS
First Defendant

AND:

PEPI KIMAS, ACTING SECRETARY FOR LANDS
Second Defendant

AND:

BENJAMIN SAMSON, ACTING REGISTRAR OF TITLES
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kandakasi, J.

2008: 08th and 31st October
2009: 23rd February

LAND – Compulsory acquisition of – Whether specification in instrument of acquisition conclusive – Relevant questions - Whether acquisition for public purpose? – Whether acquisition reasonable and in good faith? – Mixed fact and law question – Court need to consider relevant evidence, make findings of fact and determine the issues.

PRACTICE AND PROCEDURE – Mode of Commencement of proceedings – Nature of relief sought – Declarations and injunctions – Plaintiff has opt to apply for leave for judicial review or to seek relief through other means – Proceedings not raising complicated factual and legal issues – Proceedings by originating summons appropriate. 

PRACTICE & PROCEDURE – Disclose of cause of action – Proceedings by way of originating summons – No pleadings required – Material before the Court disclosing challenge to compulsory acquisition of private land - Basis for the challenge clear and defendants arguing against it – Mixed question of fact and law presented – Court needs to hear relevant evidence, make findings of fact and determine issue – Inappropriate to determine summarily on a motion – Application dismissed.

Cases Cited:

Papua New Guinean Case

Attorney General v. Hamidian-Rad [1999] PNGLR 444
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264

Overseas Cases

Prentice v. Brisbane City Council (1966) QdR 395

Counsel:

K. Sheehan, for the Applicant/Defendants.
P.B. Andrew, for the Respondent/Plaintiff.

23rd February 2009

1. KANDAKASI J: The Honourable Dr. Puka Temu, Minister for Lands, Secretary for Lands, Mr. P Kimas, and the acting Registrar of Titles, Mr. Benjamin Samson and the State (the defendants) moved a motion for a dismissal of these proceedings. In the alternative they argued for an order that these proceedings proceed by way of pleadings. 

2. The defendants relied on two main grounds in support of their arguments. First, they argued that, the proceedings amounts to an abuse of the process of the Court. They argued that the matter should have proceeded by way of judicial review, since Takoa Co. Limited is claiming declaratory and injunctive orders. Further, they argue that, substantial facts are in dispute, which require proper pleadings. Secondly, they argue that, there is a failure to disclose a reasonable cause of action. They argued that, Takoa has not filed and served any affidavit or statement in support of its proceedings which discloses a reasonable course of action. 

3. Takoa’s response through its lawyer is simply that, its proceedings do not amount to an abuse of the process of the Court. As for a disclosure of a cause of action, it argues that, it has clearly disclosed a reasonable cause of action, which is evident in the relief sought.

4. From the arguments of the parties, there are two main issues before this Court. These are:

1. Do these proceedings amount to an abuse of the process of the Court? and

2. Do the proceedings fail to disclose a reasonable cause of action? 

Whether Proceedings Amount to an Abuse of Process?

5. We turn firstly to a consideration of the first issue. The issue has arisen because Takoa is seeking a declaratory order that the State’s compulsory acquisition of its land is invalid with other consequential orders which include an injunctive order. 

6. That which caused Takoa to issue these proceedings is simple. Takoa was the registered proprietor of a pastoral lease, State Lease Volume 8 Folio 1828 (the Lease) over Portions 11 and 152, Milinch Granville, Fourmil Central Province (the Land). Takoa grazed cattle on the Land for sometime and later ceased to do so and or occupy the land for at least five years.

7. On 12th October 2007 the Minister for Lands (the Minister) signed a Notice to Treat. By that notice, the Minister invited Takoa to agree to dispose of the Land to the State under s. 13 of the Land Act 1996. On the same day, the State granted a licence to Esso Highlands Limited for additional rights of entry over the Land, under s. 116 of the Oil and Gas Act 1998.

8. On 17th December 2007, the Minister on behalf of the State signed a notice to compulsorily acquire the land for a public purpose (Notice of Acquisition), under s. 12(1) of the Land Act. Gazettal of the acquisition took place the next day 18th December 2007 in the National Gazette No. G198. Following that gazettal, the Land became vested in the State and was freed and discharged from all interests in the Land, including Takoa’s interest pursuant to s.12(2) of the Land Act.

9. Under s. 14(1) of the Land Act, the plaintiffs interest in the Land became converted to a right to compensation in accordance with the provisions of s. 14 (1) of the Land Act as of 18th December 2007 being the date of the gazettal. Consequentially, under s. 21(2) of the Land Act Takoa, had one year from 18th December 2007, to make a formal claim for compensation. Takoa did not make any claim for compensation as of the date of the filing of these proceedings.

10. About almost 4 months later, on 17th April 2008, Takoa commenced this proceeding in the National Court by filing an Originating Summons, which Takoa had amended on 3rd September 2008. Meanwhile, following the compulsory acquisition on 18th December 2007, the Lands Department had the Land in question subdivided into Portions 2456 and 2459.

11. The defendants argued for a dismissal of the proceeding under O. 8 r. 27 or O.12 r. 40 of the National Court Rules (Rules), claiming that, they amount to an abuse of the Court’s process. In support of that argument, they submit that, the kind of orders Takoa is seeking are in the nature of prerogative writs for a review and quashing the administrative decision of a public authority and other consequential orders. There being no other remedy provided for under the Land Act, the only correct mode of challenging the decision of the Minister for Lands is by way of judicial review under O. 16. They submit that the decisions of the Supreme Court in Attorney General v. Hamidian-Rad and Telikom PNG Ltd v. Independent Consumer and Competition Commission provide authority for their arguments.

12. In my view, there are two serious problems with the defendant’s arguments. First, it is clear to my mind these proceedings do not raise any complex factual or legal issues which required detailed pleading apart from what is already disclosed in the material before the Court. All that Takoa is saying is that, it was the duly registered owner of the land the subject of these proceedings. The defendants through the Minister had the land compulsorily acquired for a private purpose and not a public purpose and in any case, not all of the land is required for the purpose for which the compulsory acquisition took place. Without further or do, all that the defendants can do in response is to show that the compulsory acquisition was for a public purpose and that the whole of the land in question is required for the purported public purpose. 

13. Order 4 of the Court Rules, provide for the commencement of proceedings before the National Court. According to r 1 of that order, the two main modes of commencing proceedings before the National Court are writ of summons and originating summons. Rule 2 (1) in association with r2(2) provide that proceedings based on tort, an allegation of fraud and where the claim is for damages for breach of any duty under a contract or otherwise existing, including damages for personal injuries or death and breach of promise of marriage. Rule 2(3) excludes the application of r 2(1) to proceedings in which a party is desirous of seeking a declaration of a right; or an immediate injunction; or an immediate appointment of a receiver; or immediate orders under O. 14 r 10 for the preservation of property. In my view it follows therefore that, originating summons is the appropriate mode of commencing proceedings where a party is seeking the kind of relief mentioned in r 2(3). 

14. Rule 3 of the same order 4 gives a party a choice to use either a writ of summons or an originating summons where:

(a) the only issue concerns the construction of an Act or any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or

(b) "there is unlikely to be a substantial dispute of fact; or

(c) a person is authorised by law to issue proceedings in court and the matter is not already in court and is not the subject of any subsisting proceeding and no other mode of coming to the Court is prescribed by the relevant and applicable law.

15. This applies in cases where there is no prescription in the Court Rules or an Act of Parliament requiring the use of a writ of summons. In such a case, "unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons", they "are amongst those which are appropriate to be commenced by originating summons." It would follow therefore that, Takoa is within its right to choose whether to come to this Court by way of writ of summons or an originating summons. Further, considering that these proceeding do not raise any of the issues or questions covered in r 2(2) but more of those under r 2(3), Takoa correctly chose to come before this Court by way of its originating summons.

16. The second problem with the defendants’ argument is that, the decisions of the Supreme Court they rely on do not in fact support their contention. The Supreme Court in Telikom PNG Ltd v Independent Consumer and Competition Commission (supra), considered its earlier decisions including the decision in Attorney General v. Hamidian-Rad (supra). In so doing, the Supreme Court referred to its earlier decision in National Executive Council and Luke Lucas v. Public Employees Association, and held that, a plaintiff has a choice of proceedings by way for a writ of summons or an originating summons under Order 4. This the Court said was open to a plaintiff, if the relief sought was only for a declaration and an injunction, even though it might concern an administrative decision by a public authority. In the Luke Lucas case, the court held that the filing of an originating summons under Order 4 of the National Court Rules was proper as the only relief sought by the plaintiff (the PEA) was a declaration that the appointment of Mr Lucas as Secretary for Justice was illegal and null and void and that no orders of the sort referred to in Rule 1(1) were applied for. Accordingly, the plaintiff had a choice of going by the procedures under Order 4 or Order 16. They chose Order 4 and the Supreme Court held there was nothing wrong with that.

17. By contrast as the Supreme Court clearly pointed out in the Telikom case that, the decision in the Hamidian-Rad case, concerned an application by Mr.Hamidian-Rad for a quashing and nullification of a decision by the Commissioner General of Internal Revenue issuing a direction to Air Niugini under the Income Tax Act not to carry Mr. Hamidian-Rad on any flight leaving PNG. The Court held that, he should have approached the National Court under Order 16 by way of a judicial review. He did not do that, thereby avoiding a meeting of the leave for judicial review requirements. As the Supreme Court noted in the Telikom case, the Supreme Court followed its decision in the Lucas case but reached a different decision because of different facts and different relieves sought. In Lucas’ case, the plaintiff was only seeking a declaration, so he had a choice and used the correct procedure, whereas in Hamidian Rad’s case, the plaintiff was seeking an order in the nature of certiorari, so he was confined to Order 16 which he did not. Therefore he used an improper procedure.

18. In the Telikom case, the Supreme Court held that, in order to determine whether judicial review is the proper remedy and therefore a matter should be confined to Order 16, the Court must examine the nature of the relief sought as well as the substance of what is claimed. This is necessary because a plaintiff has an option both under Order 4 as well as Order 16 r 1(2) to go by way of an originating summons or a writ of summons particularly if the relief sought is a declaratory and or injunctive relief and nothing more.

19. In the present case, a careful examination of the relief Takoa seeks, clearly shows a prayer for a declaration that the decision by the Minister to compulsorily acquire Takoa’s Land is illegal, null and void ab initio and other consequential declaratory relieves and injunction. Takoa is not seeking orders in the nature of prerogative writs such as an order in the form of a certiorari for a quashing of the decision of the Minister. Accordingly, I am of the view that, Takoa was entitled both under Order 4 and Order 16 r. 1 (2) to come to this Court in the way it has. As such it was not obliged to come by way of a judicial review or by way of a writ of summons. 

Whether a Reasonable Cause of Action is Disclosed in these Proceedings?

20. This now leaves me to turn to a consideration of the second main issue of whether the Plaintiff has disclosed a reasonable cause of action. From the foregoing discussion, it should be clear now that Takoa’s claim is for a declaration that the Minister’s decision to compulsorily acquire its land is null and void because it was not for the alleged public purpose. It was instead for a private purpose, namely the LNG Gas Project. According to Takoa, it is a case of compulsory acquisition of private land to advance the business interest of another private company. Further, Takoa argues that, the amount of land acquired is beyond what the LNG Gas Project requires, being the purpose for which the acquisition took place.

21. In advancing its argument, Takoa refers to the definition of the phrase "public purpose" provided for under s. 2 (1) of the Land Act 1996. In support of its contention, Takoa drew the Court’s attention to an Australian decision in the matter of Prentice v. Brisbane City Council. In that case, the Brisbane City Council had resolved to compulsorily acquire certain private land to provide a roadway leading to a bridge across the Brisbane River. A private company proposed to bring about certain property developments that necessitated the resolution to acquire by the Council which was pursuant to an agreement between the private company and the Council obligating the Council to effect the acquisition. 

22. The matter ended up in Court with the plaintiff applying for an injunction to prevent the Council from proceeding with the acquisition. Mansfield CJ., held that the plaintiff was entitled to an injunction. His Honour reasoned that, the resolution to compulsorily acquire the plaintiffs land was not to support any public purpose but aimed at taking land away from a private entity to advance the interests of another private entity, namely the property developer’s corporate interest. Further, the Court found that the whole of the land the subject of the acquisition was not required for the purpose for which it was acquired. In the circumstances, the Court said that the Council acted unlawfully and not bona fide. 

23. In the case before me, despite the lengthy submission of learned counsel for the Defendants, Ms. K Sheehan, there is only one simple and main issue that is clearly before this Court, for which there is no need for further pleadings and delay as Ms Sheehan argues for. The issues are, did the State act reasonably and in good faith in compulsorily acquiring the land, the subject of these proceedings for a public purpose? If so, has the State exercised reasonable care in ensuring the whole of the land so acquired is reasonably required for purpose for which they have been acquired? 

24. The defendant’s through counsel argued that the State acted reasonably and in good faith in acquiring the land the subject of these proceedings, for a public purpose. Of course, Takoa through counsel argues, to the contrary. I find persuasion in the decision of Mansfield CJ., in Prentice v. Brisbane City Council (supra) that, simply because an instrument of compulsory acquisition describes the acquisition is for a public purposes, it does not necessarily follow that it is for a public purpose and that the amount of land so acquired is reasonably required for the public purpose. Compulsory acquisition of land for the construction of public schools, roads, bridges, airports, and other government infrastructure for public service and use may quite easily qualify for public purposes. Anything outside this may not easily qualify for public purpose. What matters in my view, is the intended use of the land and those who are intended to use it as well as the kind of goods or services that are to be provided. Hence, in my view, this is a question of mixed fact and law which can be determined by reference to what the law provides for the relevant facts and circumstances forming the foundation for the acquisition.

25. In the present case, the issue has arisen because the State has compulsorily acquired Takoa’s land allegedly for a public purpose. Takoa through its counsel does not agree and argue that the acquisition is for a private purpose, namely to serve the private commercial interests of those developing the LNG Gas project. Here is the revelation of Takoa’s cause of action, which the defendants know and are arguing against. Hence, in my view, a cause of action as been clearly disclosed. This much is very clear from what is before the Court, so much so that there is no need for any further pleading but a prompt hearing and determination of the issue.

26. In order to determine that issue, the Court will be obliged as of necessity, to consider the relevant evidence from the relevant witnesses and make the relevant findings of facts and come to a decision as to whether the acquisition was for a public purpose or for the interest of a private entity. The facts will have to come from the persons who were directly involved in the acquisition, and not from counsel representing the parties unless, they are privy to what transpired and know the facts. Counsel in that position would better serve as witnesses rather than counsel. In the light of the dispute, it will be necessary for the witnesses to be cross-examined before the Court can accept a version of the facts and the arguments. This can not happen in an application by notice of motion in a summary manner. It has to be in a trial proper. 

27. Having regard to all of the foregoing, I find no merit in the defendants’ application. Accordingly, I order that, the application be dismissed with costs to Takoa. I further order that, this matter be immediately placed on the Mentions List for Tuesday 3rd March at 9:30am for mention and for directions as to the further conduct of this matter with a view to getting an expedited hearing. Further, I order that the parties immediately give consideration to the requirements of Rules 7 and 8 of the ADR Listings rules and settled upon a draft set of orders/directions for the courts endorsement when the matter returns to the Court on 3rd March 2009. Finally I order that, time be abridged for an entry of these orders.

__________________________________

Blake Dawson Lawyers: Lawyers for the Defendant/Applicants
Young & Williams Lawyers: Lawyers for the Plaintiff/Respondent.