N8959

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 904 OF 2019 (CC1)

BETWEEN:
ANTHONY HAMAKA
First Plaintiff

AND:
TIMUGU IRALI
Second Plaintiff

AND:
BEN TABE
Third Plaintiff

AND:
TATA HARALU
Fourth Plaintiff

V

MARTIN KOMBRI
First Defendant

AND:
TAUVASA TANUVASA in his capacity as 
Solicitor General of Papua New Guinea
Second Defendant

AND:
SANDY TIANKIN
Third Defendant

AND:
HON. LUKE PANGUMA, President, 
Hulia Rural-Level Government
Fourth Defendant

AND:
HON. KEVIN ISIFU in his capacity as 
Minister for Inter-Government Relations 
Fifth Defendant

AND:
GIBSON TIGI, PAUL YAWE AND DANNY TADABE as 
signatories to the account of Moran Local-Level Government 
Special Purposes Authority
Sixth Defendant

Waigani: Anis J
2021: 23rd June, 30th July

NOTICE OF MOTION – 2 notices of motion – both seeking orders for proceedings to be dismissed – Order 8 Rule 27(a) and (c) – National Court Rules – allegation of want of reasonable cause of action and abuse of process – Order 12 Rule 40 – National Court Rules – want of standing and lack of authority to commence this proceeding – want of section 5 notice – Claims By and Against the State Act 1996 – consideration – exercise of discretion

Cases Cited:

Galatia v. Tulo (2021) N8760
Yetuin v. Dominion Information System Ltd (2018) SC1729
Mamun Investments Pty Ltd and Warekia v. Ponda and Combo [1995] PNGLR 1
Telikom PNG Ltd v. ICCC (2008) SC906
Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765

Counsel:

P.Harry, for the First & Third Plaintiff
M.Kombri, in person as the First Defendant
E. Geita, for the State 
J. Kolo, for the Sixth Defendant

RULING

30th July, 2021

1.	ANIS J:	I heard 2 interlocutory applications on 23 June 2021.  The first notice of motion was filed by the first defendant.  The second notice of motion was filed by the sixth defendant.  They both seek to dismiss the proceeding.  The applications were contested.  I reserved my ruling thereafter to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	In this proceeding, the plaintiffs challenge a purported consent order that had been made on 25 April 2019 (consent order) in proceeding OS 948 of 2018.  They claim that although they had interest in that matter, the defendants deliberately left them out as parties and obtained the consent order which directly affected their interest.  They seek orders which include setting aside the consent order and reinstating proceeding OS 948 of 2018.  The consent order, amongst others, purportedly replaced them as committee members for the Moran Local Level Government Special Purpose Authority (Moran SPA).  

4.	The original dispute concerned the appointment of or the legitimacy of appointment of committee members for the Moran SPA.  Members of the sixth defendants had claimed they were the duly appointed committee members of the Moran SPA, so they filed proceeding OS 368 of 2018 to seek orders to that effect.  On 16 August 2018, Deputy Chief Justice, Justice Kandakasi dismissed the proceeding and issued permanent restraining orders against the sixth defendants including Thomas Tawanda, Jackson Irali and David Dalira who are not named herein, from holding themselves out as Chairman, Deputy Chairman or committee members of the Moran SPA.  The consent order in proceeding OS 948 of 2018 was made after the Deputy Chief Justice had dismissed and granted the restraining orders in proceeding OS 368 of 2018.

THE 2 MOTIONS

5.	The first defendant’s notice of motion was filed on 18 May 2021.  He seeks orders pursuant to Order 8 Rule 27(1) of the National Court Rules (NCR) that the proceeding be dismissed for disclosing no reasonable cause of action and for abuse of the court process.  There is no Order 8 Rule 27(1) but Order 8 Rule 27 in the NCR.  I take that to be a mere oversight by the first defendant.  The sixth defendants’ notice of motion was filed on 10 March 2021 pursuant to Order 8 Rule 27 and Order 12 Rule 40 of the NCR.  The stated grounds are that the plaintiff either collectively or severally, lacked the legal standing and or authority to commence this proceeding.  They also seek, as their second relief, that the proceeding be dismissed in its entirety for failure by the plaintiffs to give a s. 5 notice under the Claims By and Against the State Act 1996 (CBASA).  

6.	The second defendant supported the submissions of the first and third plaintiffs and opposed the 2 applications.  The other defendants did not make appearances in the matter.

SOURCE

7.	Order 8 Rule 27 and Order 12 Rule 40 of the NCR read:

27.  Embarrassment, etc. (15/26) (1) 
Where a pleading —
(a)	discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b)	has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)	is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

40.  Frivolity, etc. (13/5)
(1)	  Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings —
(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

8.	Order 12 Rule 40 is inapplicable in this instance.  The rule falls under Division 4 – Summary Disposal therein where Rule 37(b) states that the sub-division applies to all proceedings except proceedings which include…..a claim by the plaintiff based on an allegation of fraud.  See cases:  Galatia v. Tulo (2021) N8760 and Yetuin v. Dominion Information System Ltd (2018) SC1729.  And allegations of fraud are pleaded at paragraphs 21, 22, 23, 28, 29, 30, 33, 34, 37 and 39 in the Writ of Summons and Statement of Claim filed on 5 August 2019 (Statement of Claim).  

9.	I therefore find reliance by the sixth defendants upon Order 12 Rule 40 without merit.  I uphold the submissions by the first and third plaintiffs (the plaintiffs) in this regard.

10.	What about Order 8 Rule 27?  Did the first and sixth defendants (defendants) rely on the correct source?  The plaintiffs also challenge this source which is pleaded in both motions.  

11.	Let me consider the written submissions of the first defendant which is made for the defendants.  It was filed on 8 June 2021.  He states 3 grounds for seeking to dismiss the proceeding.  At the hearing, he abandoned ground 2, namely, tendency to cause prejudice and embarrassment.  His remaining ground are, want of reasonable cause of action and abuse of court process.  In regard to want of reasonable cause of action, the first defendant, and I am reading at paragraph 5.1(a) of his submissions, argues that the plaintiffs have no standing in the present proceeding.  Because of this, the first defendant submits, the pleadings do not disclose a reasonable cause of action.  Order 8 Rule 27 (a) begins and ends as follows, Where a pleading… discloses no reasonable cause of action…. the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.  At this juncture, I find nothing wrong with raising the argument of standing in this manner.  If I find that the plaintiffs have no standing or interest, then it would mean that they do not have or cannot maintain a reasonable cause of action in the manner as is pleaded in the Statement of Claim.  I dismiss the preliminary argument raised by the plaintiffs in this regard against the defendants.

ISSUES

12.	With that, I turn to the main issues, which in my view are as follows, (i), whether there is no reasonable cause of action based on want of standing and based on the effect of the Court Order of 25 April 2019 (alleged in the first defendant’s notice of motion), (ii), whether the proceeding is an abuse of process for the reason, multiplicity of proceedings, and for breach of the Court Order of 25 April 2019 (alleged in the first defendant’s notice of motion), and (iii), whether the proceeding amounts to abuse of the court process because the plaintiffs lack standing or sufficient interest in the matter given the events that had led to and given the consent order of 25 April 2019 made in proceeding OS 948 of 2018 (alleged in the sixth defendants’ notice of motion).

PRELIMINARY MATTERS

13.	The first defendant, under relief 2 of his notice of motion, also seeks permanent restraining orders against the plaintiffs as follows, and I quote in part,……the Plaintiffs be permanently restrained from harassing, intimidating and persecuting the First Defendant and his law firm concerning issues of the propriety or otherwise of the procuring of the Court Order of 25th April, 2019.

14.	At the hearing, I asked Mr Kombri whether such a relief may be sought in an interlocutory process when there is no foundation or pleadings for such like a cross-claim.  Mr Kombri confirmed that no cross-claimed has been filed, and he was not able to assist the Court in that regard.  As such, I am not satisfied that the first defendant has established that his counter-relief has substantive foundation in the present pleadings, and as such, the relief is not properly before this Court for consideration, and I dismiss it.  There is no pleading or foundation for this relief.  The defendants are responding to the allegations raised in the Statement of Claim.  If the first defendant and his firm were harassed as claimed, that should be properly pleaded perhaps in a separate action for the Court to deal with and for the parties to be heard on the allegations, rather than in this fashion which I also find as irregular.

15.	The other matter I notice is this.  The sixth defendants appeared to have abandoned relief 2 of their notice of motion, that is, their claim for want of s. 5 notice under the CBASA.  It is not covered in their written submission.  The plaintiffs have also made submissions with evidence that such notice had been given to the State.  They refer to annexure AH4 in the affidavit of the first plaintiff filed on 13 April 2021 which they submit constitutes the s. 5 notice.  There is not contest to the evidence and as such, I will and hereby dismiss relief 2 in the sixth defendants’ notice of motion.  

STANDING/SUFFICIENT INTEREST

16.	Alleged lack of sufficient interest or standing is raised by the defendants.  

17.	The claim is premised on these relevant past events.  On 26 May 2014, the Moran SPA required appointment of members to its committee.  On 21 April 2015, the then Minister for Inter-Government Relations and then Deputy Prime Minister Hon. Leo Dion published the names of the new committee members which included Gibson Tigi, Paul Yawe, Danny Tadabe, Peterson Pipi, Peter Botton, and Yumbi Yari.  The first plaintiff Anthony Hamaka and some members of his group, namely, Ben Dabe, Tate Harabu, Pape Punga and Timugu Irali challenged the appointment of Gibson Tigi and his group.  They filed judicial review proceeding, namely, OS (JR) No. 647 of 2015.  On 11 April 2016, Justice Makail partly granted the judicial review where he, amongst others, nullified the appointments of Gibson Tigi as Chairman and Paul Yawe as board member, of the Management Committee members of Moran SPA.  His Honour essentially ordered the submissions of fresh names for appointment of new members to the Moran SPA by the Minister.  Following that and on 13 May 2017, the first plaintiff Anthony Hamaka and his group of landowner representatives were appointed as part of the members of the Management Committee of the Moran SPA.  Their appointments were endorsed by the Minister, that is, on 13 May 2017.  Anthony Hamaka was later appointed as Chairman of the Moran SPA.  The other members were Tata Haralu who was appointed as Deputy Chairman, and Pape Punga, Timugu Irali and Ben Tabe who were appointed as board members.  However, their appointments were later clouded or questioned by Hon. Leo Dion.  On 25 May 2017, the Minister’s office issued a public notice in the daily newspapers.  In the notice, the Minister purported to retract from his decision of 13 May 2017.  He claimed that his office recognized the earlier appointment that had been made on 30 May 2016 which consisted of the group that had been led by Gibson Tigi.  The notice also referred to proceeding OS (JR) 647 of 2016 and said that the said proceeding was still pending before the Court.  The Minister also claimed in his notice that he did not authorize the appointment made on 13 May 2017 which recognized Anthony Hamaka and his group as the duly appointed Management Committee members of the Moran SPA.  I note that the Minister’s publication appeared as a mere public notice and not a gazettal notice.

18.	On 5 June 2018, Gibson Tigi and his group filed proceeding OS 368 of 2018, that is, challenging the continued occupation of office by Anthony Hamaka and his group.  They claimed in the proceeding, amongst others, that the term of office of Anthony Hamaka as Chairman and his members, had expired on 20 April 2013.  They sought orders to remove the Anthony Hamaka and his group, and they also sought orders from the Court to declare Gibson Tigi and his group as the duly appointed Management Committee members of the Moran SPA, that is, pursuant to clause 5 of the Constitution of the Moran SPA.  On 16 August 2018, Justice Kandakasi, as he then was, dismissed the proceeding and in so doing, also issued permanent mandatory injunctive orders against Gibson Tigi and his group or faction, that is, from holding themselves out as Chairman, Deputy Chairman and Management Committee members of the Moran SPA. 

19.	Four months later on 14 December 2018, a member of the faction that is part of Gibson Tigi’s group, namely, Hon. Luke Panguma who is the president of the Hulia Rural Local-level Government and who is the fourth defendant in the present proceeding, filed proceeding OS 948 of 2018.  On 25 April 2019, the parties in that proceeding signed consent orders which was then endorsed by the Court by His Honour Justice Dingake.  They had challenged the responsible Minister’s decision made on 19 December 2017, and essentially obtained the consent order that appointed themselves as the duly elected members of the Management Committee to the Moran SPA.  What stands out to be quite unusual is this, and I make this as a remark:  Gibson Tigi and his named faction who had been permanently restrained from portraying themselves out as Chairman, Deputy Chairman and members of the Moran SPA, in proceeding OS 368 of 2018, were not named as plaintiffs in proceeding OS 948 of 2018.  Instead, Hon. Luke Panguma and the rural local-level government that he presents were named as plaintiffs and different parties including the State were named as defendants.  Anthony Hamaka and his ground were all excluded in the proceeding.  This is unusual given that the two varying groups had locked horns in the recent months and years questioning the validity of the Moran SPA and their appointments as Management Committee members of the Moran SPA.  As stated, this is only my remark.  Whether the actions of the plaintiffs’ and their lawyers were deliberate or lawful or otherwise, is now the subject of this proceeding.

20.	On 7 June 2019, Antony Hamaka and his group filed proceeding OS 387 of 2019.  They challenge the decision of the Minister for Inter-Government Relations made on 8 February 2019.  Minister Hon Kevin Ikufu, MP had published in the National Gazette No, G298 on 17 April 2019 where he was said to have renewed the term of the Moran SPA and reinstated Gibson Tigi and his group.  This proceeding was adjourned generally by Justice Polume-Kiele pending the outcome of this proceeding.

21.	On 5 August 2019, Anthony Hamaka and his group filed the present proceeding.  In this proceeding, Anthony Hamaka and his group’s main relief is to set-aside the consent Order of 25 April 2019 made in proceeding OS 948 of 2018.

22.	So, with this background information, can it therefore be said that the plaintiffs herein have no standing or sufficient interest in the matter?  The answer to that is obvious, which is, “the plaintiffs have standing or sufficient interest in this matter”.  The defendants appear to base their arguments on the wrong or misconceived view that given the consent order that is in place, it therefore means that the plaintiffs’ appointments as Management Committee members of the Moran SPA are no longer, and as such, they have no standing in bringing this proceeding.  With respect, that is in no way the test for determining whether a person has sufficient interest or standing in the matter.  

23.	In Mamun Investments Pty Ltd and Warekia v. Ponda and Combo [1995] PNGLR 1, the Supreme Court defines standing or sufficient interest as follows:

We will deal with ground (c) first. The applicant must have sufficient interest in the matter to which the application relates. Such interest may be a property interest or proprietary interest, legal or equitable, or even a social or political interest. As Andrew J said in PNG Air Pilots Assn v Director of Civil Aviation [1983] PNGLR 1 at 3:

[D]epending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests (per Mason J in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493; 54 ALJR 176).

24.	The plaintiffs or Anthony Hamaka and his faction or group had on various occasions been appointed as members of the Moran SPA.  Recently, their appointments have been purported nullified by the consent order of the National Court in proceeding OS 948 of 2018.  Their interest was directly affected by the said decision of the National Court.  As such, they filed the present proceeding to essentially set aside the consent order and reinstate proceeding OS 948 of 2018 so that they be given an opportunity to be heard.  What the defendants are saying with their argument, is this, that the plaintiffs have been removed from their posts in the Moran SPA without them being heard and since they have now been removed, they should live with that without raising any complaints.  Such argument or implied contention is without merit.  The plaintiffs have sufficient interest in the matter; their rights to hold the offices have been affected and the law in this jurisdiction permits them to seek redress in the manner that they may choose.

25.	Let us not forget this.  Based on the pleadings herein, the plaintiffs are seeking to reinstate proceeding OS 948 of 2018, so that they can have their say or be heard.  The consent order is being challenged by this proceeding, and if the Court is minded to grant the relief, the consent order may be set aside and the issues that had been pending in proceeding OS 948 of 2018 before the consent orders were obtained, would or may have to be fully argued and be determined by a Court of law.  It is misconceived, in my view and at this stage, for the defendants to argue the substantive matters that had been pending in proceeding OS 948 of 2018 or in other proceedings that had or have been filed that are pending as well as argue the effect of the consent order that was obtained in proceeding OS 948 of 2018, and then say therefore that the plaintiffs and his group have no standing or a valid cause of action.  Firstly, matters concerning validity of the establishment of the Moran SPA and its membership, may be fully argued and determined in proceeding OS 948 of 2018, that is, if this Court, after hearing the substantive matter herein, is minded to grant the relief, set aside the consent order, and reinstate the said proceeding.  To my mind, such arguments are therefore irrelevant at this juncture or point in time.

26.	For these reasons, I find that the plaintiffs have sufficient interest.  

NO REASONABLE CAUSE OF ACTION

27.	The first defendant in particular raises this next issue.  He argues that the plaintiffs have disclosed no reasonable cause of action.  The first leg of the argument relates to standing of the plaintiffs.  I have already considered and declined it above in my decision.  I will add this.  Whether or not the plaintiffs were holding office or were the duly appointed members of the Moran SPA, are arguments that are now sealed by the Consent Order, and which is why the plaintiffs are seeking to set that aside, in this proceeding.  If proceeding OS 948 of 2018 is re-opened and the consent order is set-aside, then these arguments may or would become relevant for considerations by a Court of law.  And the arguments also hinge on the substantive matter for the present proceeding where the parties may be required to give evidence and make submissions on the status quo of the Moran SPA and of the legal status of its members at the material time before the grant of consent order or before proceeding OS 948 of 2018 was commenced.  So, these arguments should not, in my view, be ventilated at this juncture.  It should rather be left for determination by the trial Court.

ABUSE OF PROCESS

28.	The second leg of the first defendant’s argument is this.  He claims that the proceeding is an abuse of court process because (i), it amounts to multiplicity of proceedings, and (ii), it breaches the Court Order of 25 April 2019 which is the consent order.

29.	I have considered the submissions of the parties in this regard.

30.	The arguments are not difficult to determine.  I dismiss them as baseless and without merit.  I have addressed the pleadings in this proceeding above in my decision.  The present proceeding specially or mainly seeks to re-instate proceeding OS 948 of 2018 and to set aside the consent order.  The main issues are clear, and I do not see how this proceeding may be regarded with the other proceedings and be termed as multiplicity of proceedings.  In fact, both parties or factions have been filing numerous proceedings in this matter since 2013.  And now, one party or faction is accusing the other of filing multiplicity of proceedings.  The only person that seems to be at the brunt of all these related proceedings, is the Court, which and I will remark, appears to be used like a football field by the parties.  It may be illustrated in this way.  Parties are playing a first football match on the first football field.  And either before the match is called or after a winner is declared, the aggrieved party goes to another field and restarts the same match.  If the outcome is unsatisfactory, the aggrieved party in that second match moves to and repeats the same game at another field, and so on.  Such conduct would be termed as preposterous, to say the least.  But that may be a consideration of another time where the Court may have to look into it.

31.	But returning back to the argument multiplicity of proceedings, the Supreme Court in Telikom PNG Ltd v. ICCC (2008) SC906, stated and I quote,

102.  Once the jurisdiction of the National Court is invoked by filing a proceeding, it is incumbent on a plaintiff to prosecute it with all due dispatch; and not to commence parallel proceedings over the same subject matter. Parallel proceedings give rise to confusion and inconvenience for the defendants and the court, even where, as in the present case, one of the originating processes is not served on the defendant. Very good reasons for commencement of parallel proceedings must be given…….

32.	I adopt these herein.  To me, there is a clear distinction with the present proceeding and the others that have been filed.  The primary purpose for the present proceeding is to set-aside the consent order and re-institute proceeding OS 948 of 2018.  None of the other proceedings on foot pleads and seeks such cause of action and relief.

33.	I therefore dismiss the claim by the first defendant in this regard.

34.	In regard to the first defendant’s claim that the proceeding is an abuse of process because it breaches the consent order, I note that I have already covered or addressed that above where I have dismissed it.  The first defendant cannot, in my view, rely on the consent order because its validity is at the center of the present proceeding.  That said, I note that I had asked counsel for the plaintiffs whether such a consent order of a National Court may be challenged or set-aside by filing a separate proceeding in the National Court.  Counsel assisted in that regard, and if I may, Justice Cannings in Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765 stated: 

Though it was a consent order, it could have been appealed against if exceptional circumstances were shown. But the defendants have sat on the matter for well over a year. If they were serious about setting aside the order, they should have filed fresh proceedings and relied on the grounds of fraud or mistake. (Re Peter Naroi [1983] PNGLR 176, National Court, Andrew J; Paul Torato v Sir Tei Abal [1987] PNGLR 403, National Court, Bredmeyer J; Simon Mali v The State (2002) SC690, Supreme Court, Hinchliffe J, Sakora J, Batari J.) The defendants did not appeal against the order and did not file fresh proceedings to quash it. Their application to set it aside should therefore be viewed with extreme caution and refused.

35.	The present proceeding alleges, amongst others, fraud or fraudulent conduct by the first defendant in regarding to obtaining the consent order in proceeding OS 948 of 2018.  
As such, I do not find it as abuse of the court process or that it discloses no reasonable cause of action.

36.	I dismiss the claim by the first defendant or the defendants in this regard.

SUMMARY

37.	Given my findings, I refuse both applications of the defendants.

COST

38.	An award of cost is discretionary.  I will order cost to follow the event against the first and sixth defendants.

REMARKS

39.	The matter should be set down for hearing.  I will also order the matter to return for directions so that it is progressed to trial without delay.

ORDERS OF THE COURT

40.	I make the following orders:

1.	The first and sixth defendants’ notices of motion are refused.

2.	The matter shall return for directions hearing at 9:30am on 5 August 2021.

3.	The first and sixth defendants shall pay the first and third plaintiffs’ costs for defending the applications, on a party/party basis to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
Harry:	Lawyers for the First & Third Plaintiffs
Martin Kombri:	In Person as the First Defendant
Solicitor General:	Lawyers for the Second Defendants
Kolo & Associate:	Lawyers for the Sixth Defendant