Kandi v Wange [2020] PGNC 110; N8301 (13 May 2020)

N8301

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 314 OF 2016

BETWEEN
LAIAS PAUL KANDI
Plaintiff

AND
SAM WANGE in his capacity as the Chairman of the LAND BOARD OF PAPUA NEW GUINEA
First Defendant

And
HON BENNY ALLAN, Minister for DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Defendant

And
JACK BAKUS Acting Surveyor General
Third Defendant

And
LUTHER SIPISON, Acting Secretary for the DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

And
STEVEN BUNE
Fifth Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2020: 05^th March

PRACTISE & PROCEEDURE – Judicial Review & appeals – Originating summons – Fifth Defendants Motion – seeking dismissal – whether failure non compliance directional orders – evidence compliance – dismissal non compliance not made out – motion to dismiss denied – cost follow event.

Cases Cited:

Elkum v The State [1988-89] PNGLR 662
Kalang Advertising Limited v Kuppusamy [2008] PGSC 15; SC924

Counsel:

S. Phannaphen, for Plaintiff
I Mugugia, for First, Second, Third, Fourth & Sixth Defendants
L. Tilto, for Fifth Defendant

RULING
13^th May, 2020

1. MIVIRI, J: This is the ruling on two motions first by the fifth defendant to dismiss this proceeding for want of compliance of court direction. And second the motion of the plaintiff to dismiss the fifth defendants’ motion for being frivolous, vexatious and for being an abuse of process.
   
2. I will deal with the fifth defendant’s motion as it seeks to dismiss the substantive matter for non-compliance of court directions, before going onto the Plaintiff’s motion. If the determination is granted that motion it will not be necessary to determine the Plaintiff’s motion that will be rested with the substantive matter from which it arises.
   
3. The fifth defendant’s notice of motion filed the 28^th November 2019 is in the following terms, pursuant to order 16 of the National Court Rules and Judicial Review (Amendment) Rules 13 (13) (2) (a) and 13(13) (2) (b) move for the dismissal of the Plaintiffs substantive Judicial review proceedings filed on the 31^st May 2016 for failing to comply with the Directional Orders issued by this court on the 4^th November 2019. These are in the following terms.
   

“The court orders by consent of the Parties that:

(1) The plaintiff to circulate draft Index to Review Book on the Defendants for their comments, by 07^th November 2019.
(2) The defendants to return to the Plaintiff, the draft Index to Review Book, with comments, by 14^th November 2019.
(3) The Plaintiff to compile and circulate the Review Book on the Defendants for their comments and endorsement by 21^st November 2019.
(4) The defendants to return the Review Book to the Plaintiff with their endorsement by the 28^th November 2019.
(5) The Plaintiff shall file and serve the Review Book by 5^th December 2019.

The parties return to Court for further directions on 12^th December 2019. And these were ordered 04^th November 2019 and entered 06^th November 2019.”

4. Fifth defendant contends term 3 of that order was not complied with by the Plaintiff in that they were not served the Review Book for their comments and endorsement. That by the 22^nd November 2019 this had not being done and so the plaintiffs had failed to adhere. In so doing he had breached that court ordered direction and therefore his action was not competent and by that fact stood dismissed.
   
5. To advance its motion the fifth defendant relied on the affidavit of Levi Tilto Lawyer of the firm Kari Bune Lawyers who had conduct and carriage of the matter. At the outset it is undisputed that the subject order was by consent of the parties. He confirms compliance of term one of that order in that the draft Index of the review book was indeed served the 7^th November 2019 and this is confirmed by letter dated the 7^th November 2019 by lawyers for the plaintiff.
   
6. That in response to the draft review book he raised by annexure “C” letter dated the 14^th November 2019 inclusion of pleadings not served. Affidavits objections were filed in respect. Affidavits that were used in interlocutory proceedings. Pleadings serving no purpose. Comments on the draft review book included failure to serve sealed copies regarding item 11 which was the affidavit of the Plaintiff sworn 05^th August and filed 08^th August 2016. And item 13 was court order dated the 13^th October 2016 entered 01^st December 2016. It was not sealed so should not have been included in the draft review. Which included Item 19 a second affidavit by the Plaintiff Laias Paul Kandi sworn 30^th and filed 31^st March 2017. Also, Item 31 was court Order dated the 17^th December 2018 entered 08^th March 2019.
   
7. He further commented that item 12 affidavit of service of Joseph Mako sworn and filed the 12^th October 2016 was not necessary. Including item 21 Notice of Lawyers ceasing to Act for the State filed the 08^th May 2017 by Kopunye Lawyers. And item 32 Notice of Hearing filed 28^th December 2018 pursuant to court order of the 17^th December 2018.
   
8. And further item 22 Affidavit of Jason Cappo sworn 13^th Filed 15^th September 2017 and item 23 affidavit of Andrea Yauieb sworn 01^st and filed the 03^rd October 2018 were both not necessary as they were used for interlocutory purposes.
   
9. He further commented that items 25 Affidavit of Chris Manda Surveyor General sworn 20^th March filed 11^th April 2018, item 27 Supplementary affidavit of this witness sworn and filed 13^th December 2018, item 28 Affidavit of Michael Korema sworn 12^th and filed the 14^th December 2018, item 29 Affidavit of Tom Nauma sworn 12^th and filed 14^th December 2018, item 30 Affidavit of Matrus Pondo sworn 12^th and filed the 14^th December 2018, item 33 Further affidavit of Matrus Pondo sworn and filed the 25^th March 2019, were objected to and notices of objections to use them had been filed served already. And asked to include the undertaking as to damages filed 7^th July 2017.
   
10. The letter stated that we put you on notice that we will not endorse the review book until and unless you make the necessary changes in accordance with the comments set out above.
    
11. In response a letter annexure “D” by M.S. Wagambie Lawyers dated the 21^st November 2019 to the deponent explained that items 11, 13, 19 & 31 were initially served on the fifth defendant in person, as Kari Bune Lawyers were not acting. In respect of items 12, 21 & 32 these are intended against the other defendants and not against the fifth defendant. It is necessary to be on the file as it is. Item 22 and 23 though used in the interlocutory are necessary for the substantive cause of action although maybe irrelevant for the causes of the fifth defendant. Items 25, 27, 28, 29, 30 and 33 are intended in the plaintiff cause against the other defendants not the fifth defendant. But fifth defendant is at liberty to object at trial. And the undertaking as to damages of the 07^th July 2017 were intended to be relied on for purposes of the interim application seeking interim injunctive relief. But it had been defeated as the fifth defendant had obtained a UDL that is in issue now for which leave was granted hence this Judicial review proceedings. Plaintiff agreed in that light the document was not useful to be included.
    
12. Annexure “E” of the affidavit of the Levi Tilto is a letter dated the 25^th November 2019 addressed to M.S. Wagambie Lawyers by Kari Bune Lawyers stating that items 11, 12, 13, 19, 21, 22, 23, 31, and 32 of the draft index will be objected to by the fifth defendant and also including item 25, 27, 28, 29, 30, and 33. And insistence to have an application to have the undertaking as to damages included.
    
13. Annexure “F” of the affidavit of Levi Tilto is letter dated the 26^th November 2019 by M. S. Wagambie Lawyers to Kari Bune Lawyer enclosure for review and endorsement three (3) volumes of the Review Book. It asked for the review and endorsement signing page 1029 of it and returning it straightaway for filing and service.
    
14. And Annexure “G” of the affidavit of Levi Tilto is letter dated the 26^th November 2019 under hand of Kari Bune Lawyers to M.S. Wagambie lawyers acknowledging receipt of the letter annexure F together with the three volumes of the purported final copy of the review book today 26^th November 2019 time 2.27pm. No issue is taken that this is the letter written by Kari Bune Lawyers to M.S. Wagambie Lawyers. The subject is receipt of three volumes of the purported final copy of the review book on 26^th November 2019. They represent the 5^th Defendant.
    
15. Here it would seem the Applicant/Plaintiff has complied with his role under Order 16 Rule 13 (7) (1) that he is responsible for compiling the review book. Not only has he filed but he has served that book 3 volumes upon the fifth defendant who acknowledged by their lawyer Kari Bune Lawyers 26^th November 2019. The first paragraph of this letter is worth noting in this regard, “We enclose herewith for your review and endorsement, three volumes of the Review Book”. The fifth defendant is required to review endorse and return it to the applicant whose responsibility it is to file it. Because by Order 16 Rule 13 (7) (2) “ The respondent or his/her lawyer is responsible for ensuring that the decision the subject of the review and other documents considered relevant for the purpose of the review are included in the Review Book.” It cannot be any other documents it must be relevant for the purposes of the review. Here the review is against decisions of the First and Second Defendants made under the Land Act 1996. And respondent/defendants would be primarily concerned by this rule that the decision the subject of the review is included in the review book. This is clearly the frame that is set by Order 16 Rule 13 (7) (1) to (5).
    
16. It is not litigation by ambush within Elkum v The State [1988-89] PNGLR 662 (9 November 1989) because here all material sought to be relied on in the review is served the fifth defendant. By that fact he is able to point out matters that are within his rights in a proper hearing to bring by the rules of court for the discretion of the court. Nor is it a case were there is complete non-adherence of the orders of the court. The materials set out above do not illuminate this fact and the argument of the fifth defendant do not bear this out in this light. What is set out by this material is fairness to the fifth defendant. He is able to bring out his views there and now there is no ambush as he contends.
    
17. Nor is this par on the facts with Kalang Advertising Limited v Kuppusamy [2008] PGSC 15; SC924 (31 July 2008) the affidavit evidence set out above explicitly shows the contrary the orders of the National court have been complied with by the Plaintiff. There is no defiance as in that case so that this court is empowered on the material to dismiss as contended by the fifth defendant.
    
18. Further as to what is in the Review book Order 16 Rule 13(7) (6) (a) to (d) details explicitly what is the composition of the Review Book. What is within it. The title page, the index, the originating summons, statement in support filed under Order 16 rule 3 (a), any amendment to the statement in support, Affidavit verifying Statement in support filed under Order 16 rule 3 (b), Order granting leave, Notice of motion filed under Order 16 rule 5 (1), Affidavit of service of notice of motion filed under Order 16 rule 5 (5), Extract of Submissions for the applicant, Extract of submissions for the Respondents, Certified copy of the decision and other relevant documents of the decision making tribunal or statutory Authority, Any other relevant documents filed in the National Court including affidavits, Notice of motion and orders. These will comprise the pages of the review book and all must be numbered. If both parties are not represented by lawyers, it is the registrar who will prepare the review book. And it must be prepared filed and served on the other party seven days before the date fixed for the pre-hearing conference.
    
19. Here of the draft Index of the review book was indeed served the 7th November 2019 and this is confirmed by letter dated the 7^th November 2019 by lawyers for the plaintiff. In all material respects it conforms to Order 16 Rule 13(7) (6) (a) to (d) of the National Court Rules. And it is what is carried into the Review Book. There is compliance of the rules by the Plaintiff in the preparation and service of it and service of the draft on the fifth defendant. He is not left out by because he has served that book 3 volumes upon the fifth defendant who acknowledged by their lawyer Kari Bune Lawyers 26^th November 2019.
    
20. The contention of the fifth defendant is that the Plaintiff has failed to adhere to directional order 3 of the 4^th November 2019 in that Plaintiff has failed to compile and circulate the Review Book on the Defendants for their comments and endorsement by 21^st November 2019.
    
21. To refute plaintiff has filed an affidavit dated 6^th December 2019 by deponent Andrea B. Yauieb Lawyer in the employee of M.S. Wagambie Lawyers. She swears the affidavit in that capacity. And an extract of submission in addition to its notice of motion of the 12^th December 2019.
    
22. In that affidavit she swears that pursuant to the directional orders of this court on the 04^th November 2019 circulation of the draft Index of the review book was done on the 7^th November 2019. This fact is undisputed by both sides. Both have relied on the same letter by the Plaintiff’s lawyers. This affidavit goes onto say that the First, Second, Third, Fourth and Sixth defendants responded on the 14^th November 2019 agreeing to the draft Index to the Review Book. And her annexure “ B” is that letter dated the 18^th November 2019 by the Plaintiff’s Lawyers acknowledging the position of the Solicitor General who appears for the First, Second, Third, Fourth and Sixth defendants.
    
23. She continues in the affidavit and states that the lawyers for the fifth defendants on the 14^th November 2019 responded and objected to the reliance of certain materials and demanded that the documents be removed from the Index and gave an ultimatum to the Plaintiff’s Lawyers that he will not endorse the Review Book if the documents he objected to were included in the review book if certain documents he wanted inserted in the review book were omitted. This he did so by a letter annexure “C” of her affidavit by fifth defendant’s lawyers dated the 14^th November, 2019.
    
24. She continues and attests in the affidavit that they wrote to the fifth defendant’s lawyer on the 21^st November 2019 annexure “ D” expressing responding to the ultimatum of the fifth defendant’s lawyer that the subject decision sought to be reviewed was not of the fifth defendant. He was the beneficiary of that decision and in that regard was an interested party in the matter. He should not be dictating what material the principle parties the plaintiff and the other defendants rely on the review. By this evidence plaintiff has complied no fault of his that the fifth defendant has not endorsed the review book. Rather it is his choosing raising matters that can be easily raised in the substantive hearing. There is no prejudice nor ambush in the way he has argued upon his cause.
    
25. The totality and the balance in this dispute after consideration of the evidence particularized for and against above is clear the directional orders of this court has been complied with by the Plaintiff. He is not at fault as contended by the fifth defendant. What has been raised as objection of the composition and make up of the Review Book which can be the subject of notices of objections that the fifth defendant is at liberty to file and to raise the discretion of the court to be invoked in the substantive hearing. Essentially and primarily a decision has been made by the first defendant of the land now occupied by the fifth defendant and the material in the Review book relate to that fact. As to what weight is given will be the subject at the end of the substantive review.
    
26. Insisting that as Lawyers for the fifth defendant they will not endorse the review book unless the materials they have objected to are removed from the compilation of the review book is unprofessional conduct. And may amount to perverting the course of Justice, an unlawful act a criminal act which has no place in the settlement of a review book. Justice is a process by law not otherwise. And in my view will not hold well against the fifth defendant.
    
27. In the circumstances given the motion of the fifth defendant is denied and will be dismissed forthwith with costs following. It will not be necessary to address the motion of the plaintiff filed of the 12^th of December 2019 pursuant to Order 16 Rule 13 (13) (1) and or under Order 12 rule 40 (1) (a)(b)(c) of the National Court Rules and or under section 155 (4) of the Constitution and of the Court’s inherent powers to control the practises and procedures. There is no utility to go into the details as that is addressed by this ruling in his favour.
    
28. The substantive matter is now formally adjourned to the next directional hearing of this court on the Monday 18^th May 2020 at 9.30am.
    
29. Motion of the fifth defendant is denied with costs to follow the event.
    

Orders Accordingly.

__________________________________________________________________
M.S. Wagambie Lawyers: Lawyer for the Plaintiff/Applicant
Kari Bune Lawyers: Lawyer for the Fifth Defendant
Office of Solicitor General: Lawyer for First, Second, Third, Fourth, & Sixth Defendants