Viri v Fu Tsai Wu [2017] PGNC 287; N7006 (25 October 2017)

N7006

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 393 OF 2016
BETWEEN
STEVEN MABATA VIRI FOR AND ON BEHALF OF HIMSELF AND ALL THE MEMBERS OF THE ENEHAKO CLAN OF KOROBOSEA VILLAGE, NATIONAL CAPITAL DISTRICT
Plaintiff

AND
FU TSAI WU
First Defendant

AND
NEIL MARCUS DANIEL AS EXECUTOR OF THE ESTATE OF THE LATE JIMMY VARIKA
Second Defendant

AND
THE SECRETARY FOR THE DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND
THE MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Nablu, J
2017: 7^th, 12^th September
& 5^th, 25^th October

JUDICIAL REVIEW – O.16, r. 3(2)(a) National Court Rules – motion to amend Statement of Support – amendment to relief sought and grounds of review – abuse of process – motion refused.

PRACTICE & PROCEDURE – amendment to the Statement of Support – grounds of review – relief sought – principles applicable when considering whether to amend Statement of Support – O. 16 rr. 3(4) & 6, National Court Rules.

Cases cited:
Kekedo v. Burns Philip [1988-89] PNGLR 122
Mision Asiki v. Manasupe Zurenouc (2005) SC 797

Counsel:
Mr A. Jerewai, for the Plaintiff
Mr D. Bidar, for the Second Defendant

RULING ON MOTION

25^th October, 2017

1. NABLU, J: Before the Court are two motions. The first motion is the plaintiff’s motion which was filed on 17^th August 2017. The plaintiff seeks to amend the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the National Court Rules. The plaintiff seeks to amend the Statement by including further relief which was not pleaded. They also seek to plead further facts which were not stated in the Statement of Support and they also seek to include further or additional grounds of review, which I will come to later in my ruling.

2. The second defendant on 4^th September 2017 filed a cross – motion seeking orders to dismiss the proceeding for being incompetent for various reasons and costs to be paid by the plaintiff on a solicitor – client basis.

3. Since the second defendant alleged that the new amendments or grounds which the plaintiff seeks to include in the Statement are incompetent, I heard both motions together and now give my ruling.

4. Leave was granted to the plaintiff on 19^th September 2016 to review the decision of the Secretary or the Minister for Lands to convert the land described as Portion 2370C Milinch of Granville Fourmil of the National Capital District to Portion 2370, Milinch of Granville Fourmil of the National Capital District and the subsequent transfer and grant of the title of the said land to the first defendant on or about 4^th February 2010.

5. In the Statement of Support filed on 30^th June 2016, the plaintiff pleaded the following grounds of review for the Court’s consideration:

1. Ultra vires for illegal transfer of title; and
2. Decision was unreasonable.

6. The original description of the land was Portion 2370C. It is alleged that the description of the land was changed without their knowledge. The land was known as Degubega Land which belonged to the Enehako clan. It is alleged that the Land Titles Commission decided that the land was “Native Land”. Since 2003, the Enehako ILG sought to register the Land under their Incorporated Land Group (ILG) but such request was to no avail.

7. The plaintiff had also initiated the process of registering the said land under the Land Act. However, that was still pending. According to the plaintiff, it was then discovered that the land was registered and transferred to the first defendant on 4^th February 2010. They then filed this application for judicial review to challenge the grant of the title to the first defendant.

8. The principles of procedural law in regard to the grounds of review a plaintiff can rely on during a hearing are well established in this jurisdiction. The plaintiff is confined to the grounds of review as stated in the Statement of Support (Order 16 Rule 6(1) of the National Court Rules). Order 16 Rule 3(4) of the National Court Rules provides a discretion to the Court to grant leave to the applicant to amend their Statement to either specify different or additional grounds for relief. This process, however, is permitted only during the hearing of an application for leave because it expressing states that an amendment is sought during the hearing of the originating summons. An application for leave is made pursuant to the originating summons. Order 16 Rule 6(2) – (4) of the National Court Rules supports Rule 3(4) by expanding on the procedure for applying to amend a Statement. An applicant gives notice of his intention to make an amendment which is to be properly served on parties. The Court has a discretion to grant leave to amend the Statement. Leave can be granted to the plaintiff to either specify different or additional grounds for review or otherwise.

9. That discretion is made without prejudice of the Court’s powers under Order 8 Division 4 of the National Court Rules. Order 8 Division 4 in particular Rule 50 provides the Court with the general power to grant leave to amend the proceedings either upon application by a party or on its own volition. I am of the considered view, that the Court however has a wide and unfettered discretion and an application for amendment to the Statement of Support may be permitted after the grant of leave at any time before the hearing of the application for judicial review. The basis of the Court’s discretion can be drawn from the power to dispense with the requirements of the Rules pursuant to Order 16 Rule 13(14) of the National Court Rules and the Court’s power to do justice in the circumstances pursuant to Section 155(4) of the Constitution. It goes without saying that the exercise of such judicial discretion will depend on exceptional reasons and the merits of each case.

10. I will deal with the plaintiff’s application first. The main issue for determination is whether leave should be granted to amend the plaintiff’s amended Statement of Support.

11. The second defendants opposed the application and filed a cross – motion seeking orders to dismiss the whole proceeding for being incompetent.

12. The second defendant argued that the proceedings are incompetent because the plaintiff failed to specify the decision which he seeks to review. Furthermore, the decisions to convert and grant the title to the second defendant, the Land Titles Commission were made on or about 21^st June 1994, 15^th April 1996 and 15^th July 1996. The third defendant’s decision which is also subject of review was made on 4^th February 2010 in regard to the transfer of title to the first defendant.

13. The second defendant also contends that the relief sought is well outside the prescribed period of four months pursuant to Order 16 Rule 4(2) of the National Court Rules. The relief of certiorari is not available to the plaintiff for review of the decisions of the Land Titles Commission which were made during the years 1994 and 1996. Furthermore, the decision to transfer the title to the first defendant is also outside of the prescribed period of four months as provided under the Order 16 Rule 4 of the National Court Rules. Therefore the delay is significant and amounts to undue delay.

14. The second defendant also contends that under the Land Conversion Act, an aggrieved party has 90 days to appeal or review the grant of a conversion order as provided under the Sections 34 and 38 of Land Titles Commission Act. It is clear that the time to appeal has expired.

15. Therefore, the second defendant submitted that because of these grounds these proceedings are incompetent and an abuse of process.

16. In regard to the relief sought to be amended in the Statement of Support, I am of the view that whatever relief the plaintiff wishes to ask for is their prerogative. It is trite law that judicial review applications proceed in two distinct steps. The plaintiff has to establish one or more grounds of review. Then if the plaintiff has established one or more grounds of review, the onus is on the plaintiff to make a case for the relief sought; Mision Asiki v. Manasupe Zurenouc (2005) SC 797. The grant of relief is discretionary and even if a plaintiff is successful in establishing its grounds of review, the Court still has the discretion to refuse to grant relief. The grant of relief is not automatic. The plaintiff has to make a case for the relief. The Court has a discretion to refuse the grant of relief where the Court is of the opinion that the grant of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or it would be detrimental to good administration. (Order 16 Rule 4(1) of the National Court Rules). Therefore, in the present case, the amendment to the Statement in regard to the relief sought would not, in my view prejudice the respondents. They still had the opportunity to challenge the grant of relief during the substantive hearing.

17. Now turning to the question of whether leave should be granted to the plaintiff to amend their grounds of review. The plaintiff in the present case proposes further grounds of review upon which the relief stated is sought.

18. The further grounds are provided in the Notice of Motion read:
“

1. That on the face of the records the said decisions of the Land Titles Commission on the 12^th of April 1996, and the 12^th of July 1996, were sought and obtained by constructive fraud and therefore unlawful and invalid.
   
2. That on the face of the records, the person or persons who gave consent and authorised the said application for the said conversion of title over Portion 2370C to an estate in fee simple were without authority or ostensible authority, right or power to do so.
   
3. That even if such persons referred to in the proceedings sub-paragraph (ii) have the authority or ostensible authority, right or power to consent and authorise the said land title conversion, they alone cannot do so without the whole of the consent and authorisation by other entitled persons and groups including the plaintiffs, who have never agreed to, consented to, or were aware at all of the said conversion actions until this proceeding.”

19. In my view, the Court should be mindful of the nature of the decision that is subject of review. Particularly, focus on the decision, leave was granted to review. In the present case, leave was granted to review the decision of the Minister or Secretary of Lands to change the description of the land and the subsequent transfer of the title to the first defendant.

20. The new grounds which constitute the grounds in the proposed amendments are firstly convoluted and ambiguous. They are unclear and the way they are worded appear to challenge the decision of the Land Titles Commission. If this Court permits these amendments to be made, they would most certainly prejudice the rights of the respondent.

21. I am of the view that the Court when considering such an application to amend a Statement of Support must consider the following questions:

1. Whether the amendments clarify the grounds of review;
2. Whether the new grounds of review proposed relate to the decision subject of review; and
3. Whether the respondents would be prejudiced?

22. In answering those questions posed. I am of the view that the plaintiff’s amendments to the grounds are not amendments to clarify, the original grounds of review. In fact they appear to introduce new grounds of review. In fact the plaintiff pleads these grounds with the words “...on the face of the records...” clearly this means that they have not challenged the Land Titles Commissions decision. They are seeking to introduce that challenge into this judicial review.

23. I uphold the second defendant’s submissions that this would be an abuse of process. The plaintiff was not granted leave to review this decision in the first place. The delay would be inordinate in bringing this review or challenging the Land Titles Commission’s decisions.

24. The purported ‘constructive fraud’ which was alleged to have occurred was never tried or proven in any court of civil or criminal jurisdiction. These are just the plaintiff’s speculations or allegations of what had occurred. Furthermore, the amendments appear to indirectly challenge the Land Titles Commission’s decision through these proceedings which is an abuse of process. Furthermore, in the case of Kekedo v. Burns Philip [1988-89] PNGLR 122, the recognised grounds of review are:

1. decision – making authority exceeds its powers;
2. the decision – making authority lacks jurisdiction;
3. error of the jurisdiction law;
4. breach of the principles of natural justice;
5. Wednesbury principles of unreasonableness; and
6. abuse of powers.

25. Upon careful consideration of the proposed grounds of review pleaded it is clear that the grounds do not constitute a recognised ground of judicial review. The way the grounds are worded are too general. They are speculative grounds, for example, they state that some persons orchestrated the whole fraud without naming the person.

26. Therefore the answer to the second question is in the negative and that is the grounds of review proposed do not relate to the decision subject of review.

27. The next question to be determined is whether the second defendant would be prejudiced. If the new grounds of review are included. In my view, the respondents would be prejudiced. The decisions were made in 1996 which is over 20 years ago. Leave was not granted to the plaintiff to challenge the Land Titles Commission’s decision. The Land Titles Commission is also not a party to this proceeding, therefore to challenge their decision in this way is clearly an abuse of process.

28. Therefore for the foregoing reasons and in the exercise of my discretion leave to amend the Statement of Support is refused and the plaintiff’s notice of motion filed on 17^th August 2017 is dismissed forthwith.

29. In regard to the second defendant’s motion, they seek orders for the proceedings to be dismissed on the grounds that this proceeding is incompetent and an abuse of process. The basis of these claims are founded on the apprehension that leave would be granted to amend the Statement of Support which would render the current judicial review application incompetent. Given that leave to amend has been refused, in my view, the second defendant’s application has no basis. Therefore, that application is refused and dismissed. The second defendant is not prejudiced, they can still raise these issues in the substantive hearing of the judicial review application.

30. The only question for determination is whether the second defendant is entitled to costs on a solicitor – client basis after the dismissal of the plaintiff’s motion.

31. Generally costs follow the event. It is also trite law that costs are discretionary. The second defendant’s lawyers submitted that they had forewarned the plaintiff’s lawyers and urged them to withdraw their motion to amend, however, that was not forthcoming. The plaintiff pursued their application.

32. A closer look at the letter (see Annex J of the Affidavit of Daniel Bidar filed on 1^st September 2017) I note that, the letter did not specifically warn the plaintiff’s counsel that they would seek solicitor – client costs if the motion was not withdrawn. The evidence is insufficient to support an order for costs on a solicitor – client basis. For that reason, I will order that the plaintiff pay the second defendant’s costs of the application to be taxed if not agreed.

Court Orders

1. The plaintiff’s notice of motion filed on 17^th August 2017 is refused and is dismissed forthwith.
   
2. The plaintiff is to pay the second defendant’s costs of and incidental to the motion to be taxed if not agreed.
   
3. The second defendant’s notice of motion filed on 4^th September 2017 is refused and is dismissed forthwith.
   
4. The matter returns for mention on Monday 6^th November 2017 at 9:30am.
   
5. Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

_______________________________________________________________
Jerewai Lawyers: Lawyers for the Plaintiff
Leahy Lewing Lowing Lawyers: Lawyers for the Second Defendant