Toligai v Chan [2012] PGNC 133; N4842 (18 July 2012)

N4842

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 173 OF 2012

BETWEEN:

SOKA TOLIGAI as President of Sentral
Niu Ailan Local Level Government
Plaintiff

AND:

SIR JULIUS CHAN, the Governor
of New Ireland Province
First Defendant

AND:

AMANI MONOVI, the Administrator,
New Ireland Province
Second Defendant

Kokopo: Hartshorn J.
2012: 17th, 18th July

Application to dismiss proceeding – Order 12 Rule 40 National Court Rules - privity of contract – proceeding bound to fail - frivolous

Facts:

The defendants have applied to dismiss this proceeding. They submit that the plaintiff does not have the necessary standing or locus standi to seek the relief that he does. The plaintiff submits that he does have the necessary standing as he is the President of a Local Level Government that is referred to in the Agreement pursuant to which relief is sought.

Held:

The plaintiff is not a party to the Lihir Agreement and so does not have the necessary standing to seek the relief that he does and no cause of action is disclosed against the defendants. The proceeding is bound to fail and consequently is frivolous.

Cases cited:

Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
PNGBC v. Barra Amevo & Ors (1998) N1726
Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261
The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N 3050
Ben Maoko v. Kevin Ling (2008) N3293

Counsel:

Mr. R. Asa, for the Plaintiff
Mr. J. Kusip, for the Defendants

18th July, 2012

1. HARTSHORN J: The defendants have applied to dismiss this proceeding. They submit that the plaintiff does not have the necessary standing or locus standi to seek the relief that he does. The plaintiff submits that he does have the necessary standing as he is the President of a Local Level Government that is referred to in the Agreement pursuant to which relief is sought.

2. In this proceeding the plaintiff seeks declaratory and consequential relief to the effect that certain royalty payments referred to in the Revised Memorandum of Agreement relating to the Lihir Gold Mining Project between the State, New Ireland Provincial Government, The Nimar Rural Local Level Government and The Lihir Mining Area Landowners Association Inc. dated 2 May 2007 (Lihir Agreement), belong to the Sentral Niu Ailan Local Level Government (SNA LLG).

3. The defendants apply to dismiss this proceeding pursuant to Order 12 Rule 40 National Court Rules as it is frivolous or vexatious or an abuse of the process of this court.

4. It is clear upon a perusal of the Lihir Agreement that the plaintiff is not a party to it. Further, contrary to the submissions of the plaintiff, in clauses 6 (c) (i) and 23 (i) of the Lihir Agreement upon which the plaintiff relies, the references are to "Namatanai District" and not the SNA LLG.

5. Pursuant to the doctrine of privity of contract, ".... no person can sue or be sued on a contract unless he or she is a party to it: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] UKHL 1; [1915] AC 847. The doctrine of privity means a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties to it.": Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261, per Lenalia J.

6. Other decisions in this jurisdiction have considered and ruled pursuant to the doctrine of privity of contract: PNGBC v. Barra Amevo & Ors (1998) N1726, The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603 and Ben Maoko v. Kevin Ling (2008) N3293.

7. In Ben Maoko (supra), Cannings J referred to exceptions to the doctrine of privity of contract. In the case before him no exceptions were pleaded. In this case as well, no exceptions are pleaded, or referred to in submissions.

8. Counsel for the plaintiff referred to there being an implied trust between the New Ireland Provincial Government and the SNA LLG. Even if a trust was implied, and I do not consider this, as referred to, there is no reference to the SNA LLG in the Lihir Agreement.

9. A further factor that is able to be considered in determining whether this proceeding is frivolous or vexatious is whether the plaintiff has a cause of action against the named defendants. Here, as the New Ireland Provincial Government is not named as a party to this proceeding; only the Governor and Administrator of the Province are so named, and they are not parties to the Lihir Agreement, I am of the view that no reasonable cause of action is disclosed against the named defendants.

10. From the above, it is evident that the substantive relief sought in this proceeding would not be granted. When a proceeding is bound to fail, it has been held to be frivolous: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N 3050 and Tampion v. Anderson [1973] VicRp 32; [1973] VR 321.

11. In all the circumstances, I am satisfied that the plaintiff does not have the necessary standing to seek the relief that he does, that this proceeding is bound to fail for the above reasons and consequently is frivolous.

12. The proceeding should be dismissed. As to costs, although they are sought on an indemnity basis by the defendants, I am not satisfied that the defendants have sufficiently presented a case that such costs are justified.

Orders

13. The formal orders of this Court are:

a) The proceeding is dismissed.

b) The plaintiff shall pay the defendants' costs of and incidental to the proceeding.

c) Time is abridged.

___________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Kusip Lawyers: Lawyers for the Defendants