Lihir Mining Area Landowners Association Inc v Kokiva [2019] PGNC 115; N7831 (26 April 2019)

7831

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 544 OF 2018

BETWEEN
LIHIR MINING AREA LANDOWNERS ASSOCIATION INC.
Plaintiff

AND
HARRIET KOKIVA as Acting Registrar of Companies
First Defendant

AND
INVESTMENT PROMOTION AUTHORITY
Second Defendant

Waigani: Makail, J

2019: 8^th & 26^th April

JUDICIAL REVIEW – Review of decision of Registrar of Associations – Decision to dissolve executives of association – Power of – Lack of – Decision made in excess of jurisdiction – Associations Incorporation Act, Ch 142 – Section 38

Cases Cited:

Nil

Counsel:
Mr. G. Geroro, for Plaintiff
Mr. P. Kewa, for Defendants

JUDGMENT

26^th April, 2019

1. MAKAIL, J: This application for judicial review turns on the question whether Section 38 of the Associations Incorporation Act, Ch 142 confers power on the Registrar of Associations to remove members of an existing Association. Section 38 states:

“38. Special cases.

(1) Where the Registrar is satisfied that, because of the special nature of the constitution, method of control or operations of an association proposed to be incorporated under this Act it would be appropriate and not inconsistent with the intention of this Act to do so, he may —

(a) direct that some officer or authority of the association be incorporated in its place; or

(b) direct that, on incorporation, the association, or some officer or authority of the association, stand, for the purposes of this Act, in the place of the committee, the members of the committee, the general meeting or the public officer; or

(c) give such directions as he considers appropriate as to the form and manner of doing any other matter or thing under or for the purposes of this Act, and the person or authority by whom or by which it is to be done (including the substitution of some other instrument or procedure for a special resolution); or

(d) approve the constitution of the association and waive some or all of the provisions of this Act relating to the constitution and rules of associations,

and shall give such further directions to ensure compliance with the intention of this Act as he considers proper.

(2) A person aggrieved by a direction or approval under Subsection (1) may appeal to the Minister, whose decision is final.

(3) Subject to Subsections (1) and (2), the provisions of this Act relating to and in relation to incorporated associations, with the necessary modifications, apply to and in relation to a corporation constituted in accordance with this section.” (Emphasis added).

2. From the evidence as contained in the affidavits tendered on behalf of the plaintiff and one Mr. Victor Nape of the defendants, there is no dispute that it is an association incorporated pursuant to the Associations Incorporation Act, Ch 142. It was incorporated some 28 years ago on 21^st November 1990 and has been operating until the first defendant dissolved its executives on 14^th June 2018.

3. An appeal was made to the Minister on 21^st June 2018 pursuant to Section 38(2) of the Act and was upheld on 27^th June 2018 and the first defendant was directed to rescind her decision. Despite the Minister’s decision, she either failed or, ignored or, refused to comply with the decision.

4. Apart from the claim that its executives were denied natural justice in that they were not given the opportunity to respond to any allegations of mismanagement or abuse of office, the plaintiff’s main submission is that, Section 38(1) is to be read as conferring power on the Registrar to intervene and issue directions in relation to the control or operations of an association proposed to be incorporated.

5. In the present case as the plaintiff was incorporated some 28 years ago, thus an existing association, Section 38(1) has no application and the first defendant’s decision is plainly invalid.

6. The defence took no issue with the interpretation given by the plaintiff. However, it raised a competency issue in relation to the correct party to commence proceedings. It submitted that the proceedings should have been commenced by the executives and not the Association because they were the persons who were dissolved by the first defendant. For this reason the proceedings should be dismissed as an abuse of process.

7. The interpretation given by the defence attempts to separate the executives from the Association. However, it overlooks the fundamental question whether the Registrar has power to dissolve the executives of an association under Section 38 (supra). In any event, the question of standing of the plaintiff was resolved at the leave stage and the plaintiff has been granted leave to seek judicial review of the decision of the first defendant. Where leave has been granted, it must be taken that the issue of standing has been settled and the plaintiff has correctly engaged the jurisdiction of the Court to determine the fundamental question of exercise of power by the Registrar to deal with an association under Section 38 (supra).

8. I accept the submission of the plaintiff that Section 38 does not confer power on the Registrar to dissolve the executives of an association. What Section 38 does provide is that, where the Registrar is satisfied that, because of the special nature of the constitution, method of control or operations of an association proposed to be incorporated, it would be appropriate and not inconsistent with the intention of the Act to do, he may intervene and issue directions in relation to the control or operations of an association proposed to be incorporated. The key word here is “proposed” which refers to a non existing association and one to be incorporated. In this case the plaintiff is an existing association.

9. Secondly, the decision of the first defendant to “dissolve” the executives of the plaintiff is not supported by Section 38 because such purported power is not expressed in this provision. I am satisfied that the Section 38 does not apply to the plaintiff and the first defendant lacked power or acted in excess of power to dissolve the executives of the plaintiff.

10. The decision of the Minister upholding the plaintiff’s appeal has not been complied with by the first defendant. This decision will be upheld by the Court and an order will be issued to secure compliance by the first defendant forthwith.

11. The application for judicial review will be upheld and the orders sought by the plaintiff in terms of paragraphs 1(a), 2, 3, 4, and 5 of the Notice of Motion filed 28^th September 2018 will be granted with costs.

Judgment and orders accordingly.

________________________________________________________________
Geroro Lawyers: Lawyers for Plaintiff
Serria Legal Services: Lawyers for Defendants