Bore v Malaisa [2013] PGNC 93; N5274 (24 July 2013)

N5274

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 296 OF 2010

AISI IUMA BORE ON BEHALF OF BEHORI CLAN OF FURIMUTI VILLAGE
Plaintiffs

V

CLEMENT MALAISA, LAND TITLES COMMISSION
First Defendant

RAGA KAVANA, REGISTRAR OF TITLES
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

ELIAS WAKORE & CATHERINA WAKORE
Fourth Defendants

FOXIE KAEAKA
Fifth Defendant

Waigani: Cannings J
2013: 30 May, 24 July

PRACTICE AND PROCEDURE – motion for summary determination of judicial review proceedings for failure to comply with court directions – National Court Rules, Order 16, Rule 13(13)(2)

After granting leave to the plaintiffs to apply for judicial review of decisions regarding the conversion of customary land to freehold title in favour of the fourth defendants the Court gave directions on 16 December 2010, extended on 6 June 2011, for the purpose of progressing the matter to trial. On 23 May 2013 the fourth defendants applied by motion under Order 16, Rule 13(13)(2) of the National Court Rules for summary determination of the application for judicial review on the ground failure by the plaintiffs to comply with the Court's directions.

Held:

(1) The first issue to determine is whether there has been a failure to comply with the Court's directions.

(2) If there has been a failure to comply, the court has a discretion to exercise. It is not obliged to summarily determine the proceedings. Relevant considerations to take into account are: the nature and extent of the failure to comply, whether there is a good explanation for the failure to comply, the conduct of the proceedings, whether the interests of justice favour summary dismissal.

(3) Here the plaintiffs in fact failed to comply with the directions of 6 June 2011 by first not filing a statement of agreed and disputed facts by 27 June 2011 and then not taking any other steps as directed.

(4) By the time of the hearing of the motion the plaintiffs were still in default of the directions, so the failure to comply was serious, extensive and ongoing. No good explanation was provided. The plaintiffs' conduct and that of their lawyers suggested that they were deliberately procrastinating. It was in the interests of justice that the proceedings be dismissed.

(5) The Court exercised its discretion in favour of the fourth defendants and ordered that the proceedings be dismissed, the order to take effect one month after the date of the order, given that the subject matter of the proceedings was ownership of land and that the plaintiffs and others living on the land might be required to leave and any eviction of persons from land should be effected in an orderly and peaceful manner.

Cases cited

The following cases are cited in the judgment:

Alumadiyaa Muslim Mission v Bank South Pacific Ltd (2005) N2845
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Las Korowa v Koi Kala (2004) N2760
Rabaul Shipping Ltd v Chris Rupen (2008) N3289
Viviso Seravo v Jack Bahafo (2001) N2078

NOTICE OF MOTION

This was an application for summary determination of proceedings for failure by the plaintiffs to comply with directions of the Court.

Counsel

R Tuva, for the plaintiffs
B Lakakit, for the fourth defendants

24th July, 2013

1. CANNINGS J: The fourth defendants, Elias and Catherina Wakore, apply for summary determination of these proceedings on the ground of failure by the plaintiffs, Aisi Ume Bore and other members of Behori clan, to comply with directions of the Court.

2. The proceedings are an application by the plaintiffs for judicial review of decisions regarding the conversion of customary land at 14 Mile, Central Province, to freehold title in favour of Mr and Mrs Wakore. The land has an area of 8.59 hectares and is known as "Vauboto", Portion 2430 Milinch of Granville, Fourmil of Moresby. The decisions were made under the Land (Tenure Conversion) Act 1963 in the period from 2000 to 2002 by the first and second defendants, Mr Malaisa, constituting the Land Titles Commission, and Mr Kavana, Registrar of Titles.

3. On 11 June 2010 the plaintiffs commenced the proceedings. On 12 August 2010 Sevua J restrained the defendants from dealing with the land until further order. On 7 September 2010 Gavara-Nanu J granted leave for judicial review. On 16 December 2010 Davani J gave directions to the parties to progress the matter. On 6 June 2011 Thompson AJ gave further directions.

4. On 23 May 2013 the fourth defendants filed the application now before the Court. It is made under Order 16, Rule 13(13)(2) of the National Court Rules, which states:

Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Practice Directions or on any other competency grounds.

SUBMISSIONS

5. Mr Lakakit for the fourth defendants submits that the plaintiffs have failed to comply with the directions of 16 December 2010 and 6 June 2011 and that they and their lawyers have not prosecuted the case diligently, to the detriment of the fourth defendants who are still restrained by the interim order of 12 August 2010 in what they can do with their land, and therefore the entire proceedings (the application for judicial review) should be dismissed.

6. Mr Tuva for the plaintiffs asserts that the plaintiffs have faced difficulty complying strictly with the Court's directions and getting the judicial review ready for trial as the fourth defendants have changed lawyers on multiple occasions, leading to communication problems, and the fourth defendants have not complied with the interim order of 12 August 2010 (which conduct is the subject of contempt proceedings against them) and have attempted to evict the plaintiffs from the land during the course of the proceedings.

DETERMINATION OF APPLICATIONS FOR SUMMARY DISPOSAL

7. As with applications for summary disposal of proceedings on grounds such as want of prosecution (Order 10, Rule 5) or default in serving a list of documents (Order 9, Rule 15(1)) the first thing the Court needs to address when determining an application under Order 16, Rule 13(13)(2) is that the factual ground relied on has been made out. Have the plaintiffs, in fact, failed to comply with directions issued under Order 16 of the National Court Rules?

8. If there has been a failure to comply, the court has a discretion to exercise. It is not obliged to summarily determine the proceedings. Guidance as to relevant considerations to take into account in the exercise of discretion can be taken from cases dealing with other types of applications for summary determination, such as Vivisio Seravo v Jack Bahafo (2001) N2078, John Niale v Sepik Coffee Producers Ltd (2004) N2637, Las Korowa v Koi Kala (2004) N2760, Alumadiyaa Muslim Mission v Bank South Pacific Ltd (2005) N2845 and Rabaul Shipping Ltd v Chris Rupen (2008) N3289. The Court should take into account matters such as the nature and extent of the failure to comply, whether there is a good explanation for it, how the parties and their lawyers have conducted themselves during the course of the proceedings and whether the interests of justice favour summary disposal.

HAS THERE BEEN A FAILURE TO COMPLY?

9. This question must be asked in relation to the directions of 6 June 2011. It is not relevant to ask the question in relation to the directions of 16 December 2010 as they have been superseded by the later directions. The directions of 6 June 2011 stated:

1. The defendants to file and serve their affidavits and response to draft statement of agreed and disputed facts to the plaintiffs by 20 June 2011.
   
2. The plaintiffs to file the statement of agreed and disputed facts and serve it on the defendants by 27 June 2011.
   
3. Plaintiffs to serve a draft index to the review book to the defendants by 6 July 2011.
   
4. The defendants to reply to the draft index to review book to the defendants by 13 July 2011.
   
5. The plaintiffs to file the settled review book by 27 July 2011.
   
6. The third defendant to pay the plaintiffs' costs for today.
   
7. The matter returns on 1 August 2011 for further directions.
   

10. I find the plaintiffs did not comply with direction Nos 2, 3 and 5 as they have at no stage filed a statement of agreed and disputed facts, served a draft index to a review book or filed a review book.

DISCRETION

11. I take into account the following matters:

(a) What is the nature and extent of the failure to comply? By the time of the hearing of the motion in May 2013, almost two years after the directions of June 2011, the plaintiffs were still in default of the directions, so the failure to comply was serious, extensive and ongoing.

(b) Is there a good explanation for the failure to comply? No, Mr Tuva has been unable to provide any. It is no excuse to say that the fourth defendants 'kept changing lawyers'. An examination of the file suggests that they have had a lawyer on the record at almost all times since 6 July 2010. All the plaintiffs' lawyers had to do was serve documents on the lawyers' address for service. If at any point in time there were no lawyers on the record personal service on the fourth defendants would suffice. I have considered whether the fact that direction No 1 – defendants to file and serve affidavits and response to draft statement by 20 June 2011 – is addressed to the defendants, provides the plaintiffs with an excuse, but decided that it does not. Compliance with direction No 2 – plaintiffs to file statement by 27 June 2011 – did not depend on direction No 1 being complied with. In any event Mr Wakore deposes in an affidavit in support of the motion for summary disposal that he and Mrs Wakore had already filed, in 2010, all the affidavits that they intended to rely on.

(c) How have the parties and their lawyers conducted themselves? Mr Tuva submits that the fourth defendants breached the order of 12 August 2010, restraining them from dealing with the land, on two occasions, and that they are guilty of contempt of court; and that this is a factor which weighs heavily against them. The allegations of contempt have been the subject of a separate motion by the plaintiffs and I have today ruled in favour of the fourth defendants on that motion, finding them not guilty of contempt. However I find that the conduct of the fourth defendants was imprudent and that it has not assisted their application for summary disposal. By comparison I find that the plaintiffs have, apart from their lackadaisical attitude to the Court's directions, conducted themselves properly.

(d) Do the interests of justice favour summary disposal? Yes. This is an old case. The plaintiffs are trying to challenge decisions made in the period 2000 to 2002 that resulted in customary land being converted to freehold and a certificate of title being issued to the fourth defendants. Though they succeeded in being granted leave the question of undue delay in challenging the fourth defendants' title will inevitably be a major issue if the case proceeds to trial. I can see that there is an arguable case of constructive fraud but I cannot see a clear and obvious case of fraud that would make it unjust to deny to the plaintiffs the opportunity to air their grievances at a trial. It is clear that Mrs Wakore is a local woman, a member of the Behori clan, and while Mr Wakore is not of local descent (he comes from West New Britain) the views of the Clan are divided on whether it was right for the fourth defendants to be granted freehold title over what used to be customary land owned by the clan. This is not a case where a couple of outside people have clearly obtained title against the wishes of the customary landowners.

CONCLUSION

12. The only factor that works against dismissal of the proceedings is the imprudent action of the fourth defendants in taking steps to have some of the plaintiffs removed from the land while the case was still going on. I don't consider that that is a sufficiently weighty factor to warrant continuation of the proceedings. The plaintiffs have seriously defaulted in their obligation to comply with the Court's directions of 6 June 2011. They have provided no good explanation for the failure to comply. Their conduct and that of their lawyers suggests that they have been deliberately procrastinating. It is in the interests of justice that the proceedings be dismissed and that will be the order of the Court.

13. Costs of the motion will follow the event. However as the conduct of the fourth defendants has not been entirely exemplary and given the nature of the dispute I think it is fair that the costs of the remainder of the proceedings be borne by the parties, subject to any particular orders for costs made in the course of the proceedings. I will ensure that the order of dismissal takes effect in a little over one month. This is a case about ownership of land and the parties need to be given time to digest the order and adjust their lives and their affairs in accordance with the order. It seems that some of the plaintiffs are living on the land and they be might be required by the owners, the fourth defendants, to leave. Any eviction of persons from land should be effected in an orderly and peaceful manner. Delaying implementation of the order will, I trust, ensure that that is what happens.

ORDER

(1) The application under Order 16, Rule 13(13)(2) of the National Court Rules for summary dismissal of the application for judicial review is, subject to the following orders, granted.

(2) The proceedings are dismissed with effect from 12 noon on 27 August 2013 and until then no steps shall be taken by the fourth defendants to evict or disturb the interests of any persons, including the plaintiffs, living or conducting economic activities on the subject land, Portion 2430 Milinch of Granville, Fourmil of Moresby.

(3) The interim order of the National Court of 12 August 2010 is dissolved with effect from 12 noon on 27 August 2013.

(4) The plaintiffs shall pay the fourth defendants' costs of the notice of motion filed 23 May 2013 and as to costs of the remainder of the proceedings the parties shall, subject to any earlier costs orders, bear their own costs.

Judgment accordingly.
___________________________________________________
Tuva & Associates Lawyers: Lawyers for the plaintiff
Lakakit & Associates Lawyers: Lawyers for the 4th defendants