N9370
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 570 OF 2014

BETWEEN:
LOBENIA GALATIA, KIMAT MATHEW, TONY TAWINA, HERRY SAKIO, KEMP POATE, LINDA TAWINA AND ANNAH JOEL for their own behalf and for and on behalf of the members of the second and fourth defendants herein whose names are endorsed in the Schedule
Plaintiffs

DOREEN MARK JOEL for her own behalf and for and on behalf of the members of the Siung Association Inc. who are beneficiaries to the Misima Trust Fund and Oil Search Equity Share
Second Plaintiff

SENEINA TOSALI for her own behalf and for and on behalf of the members of the Misima Nort Coast Society Limited who are beneficiaries to the Misima Trust Fund and Oil Search Equity Share
Third Plaintiff

DAVID EALADONA for his own behalf and for and on behalf of the members of the Misima Towoho Siung Association Inc. who are beneficiaries to the Misima Trust Fund and Oil Search Equity Share
Fourth Plaintiff

AND:
JOHN TULO as the Chairman of the Magamega Association Inc. and Issac Jack as the Secretary and the rest of the Executives
First Defendants

MAGAMEGA ASSOCIATION INC.
Second Defendant

ELIJAH GWAMA AND HIS EXECUTIVES
Third Defendant

MISIMA TOWOHO SIUNG ASSOCIATION INC.
Fourth Defendant

MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED
Fifth Defendant

WESTPAC BANK BRANCH and Westpac Misima Agency and other Banks
Sixth Defendants

DAGORA GWAMA, Chairman of Siung Association Inc. and his Executives
Seventh Defendants

SIUNG ASSOCIATION INC.
Eighth Defendant

RICHARD SMANO, Chairman of North Misima Corporative Society Limited and his Executives
Ninth Defendants

NORTH MISIMA CORPORATIVE SOCIETY LIMITED
Tenth Defendant

ANZ/KINA BANKS LIMITED
Eleventh Defendant

BANK SOUTH PACIFIC LIMITED
Twelfth Defendant

TIMOTHY MAIZ, Trustee – Misima Trust Fund Investment Advisory Committee
Thirteenth Defendant

DAIRI VELE, Secretary for Treasury Department and Chairman of the Board of Directors of Misima Trust Fund
Fourteenth Defendant

DR KEN NANGANG, Secretary for Finance Department
Fifteenth Defendant

GARRY JERRY, Managing Director MRA
Sixteenth Defendant

MINERAL RESOURCES AUTHORITY
Seventeenth Defendant

HON. JOHNSON TUKE, Minister for Mining
Eighteenth Defendant

THE STATE
Nineteenth Defendant

HON. SIR JOHN LUKE CRITTEN, Governor for Milne Bay Province
Twentieth Defendant

ASA NUMA, Governor for Milne Bay Province
Twenty First Defendant

MILNE BAY PROVINCIAL GOVERNMENT
Twenty Second Defendant

Waigani: Kariko, J
2021: 7th June & 16th July

CIVIL PRACTICE & PROCEDURE – application to dismiss proceeding – originating summons converted to pleadings - convoluted pleadings – pleadings include evidence submissions and opinions – claims against parties not clear – new claims based on different facts to originating summons 

Cases Cited:

Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915 
Goma v Protect Security & Communication Ltd (2013) SC1300 
Kuman v Digicel (2013) SC1232 
PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85
Tipaiza v Yali (2006) N3178 

Counsel:

Mr L Putupen, for the Plaintiffs
Mr B Samiat, for the First, Second, Third, Fourth, Seventh & Eighth Defendants 
Mr H Maliso, for the Fourteenth Defendant
No appearances for the remining Defendants

RULING

16th July, 2021

1.	KARIKO, J: This case involves disputes concerning various entitlements and benefits arising out of the operations of and following the closure of the Misima Gold Mine in the Milne Bay Province. 

2.	It is relevant to briefly note and describe the current parties to the case.

Plaintiffs

First plaintiff – customary landowners of the Special Mining Lease (SML) at Misima who are members of the Magamega Association Inc., which in turn is a member of the Misima Towoho Siung Association Inc., the umbrella landowners Association.

Second, Third and Fourth plaintiffs – customary landowners of the Misima Towoho Siung Association Inc who lay claim as beneficiaries to the Misima Trust Fund and equity in Oil Search Limited shares.

Defendants

First defendant – John Tulo, the Chairman and Issac Jack, the Secretary of the Misima Towoho Siung Association Inc.

Second defendant	- Magamega Association Inc.

Third defendant	- the Executives of the Misima Towoho Siung Association Inc.

Fourth defendant	- Misima Towoho Siung Association Inc. 

Fifth defendant	- Mineral Resources Development Company Limited.

Sixth defendant 	- Westpac Bank.

Seventh defendant – Chairman of Siung Association Inc. 

Eight defendant 	- Siung Association Inc. 

Ninth defendant 	- Chairman of North Misima Corporation Society Limited.

Tenth defendant 	- North Misima Corporation Society Limited.

Eleventh defendant - ANZ/Kina Bank Limited.

Twelfth defendant – Bank South Pacific Limited. 

Thirteenth defendant - Timothy Maiz, Trustee of the Misima Trust Fund.

Fourteenth defendant - Dairi Vele, Secretary for Treasury Department & Chairman of the Misima Trust Fund.

Fifteenth defendant - Dr Ken Nangang, Secretary for Finance Department.

Sixteenth defendant - Garry Jerry, Managing Director, MRA.

Seventeenth defendant - Mineral Resources Authority.

Eighteenth defendant - Hon. James Tuke, Minister for Mining.

Nineteenth defendant - The State

Twentieth defendant - Hon. Sir John Luc Critten, Governor for Milne Bay Province.

Twenty first defendant - Asa Numa, Governor for Milne Bay Province.

Twenty second defendant – Milne Bay Provincial Government

3.	When the proceedings were filed by way of an originating summons on 20th August 2014, the parties consisted of the first plaintiff and the first six defendants.  At the time, the plaintiffs were aggrieved with the Misima Mediated Agreement dated 23rd January 2012 and its provisions. The Agreement was a compromise of various claims through court proceedings initiated by landowner groups of the Misima Special Mining Lease (SML) area, including Misima Towoho Siung Association Inc., Siung Association Inc., North Misima Corporation Society Limited, and Magamega Association Inc. The plaintiffs were mainly aggrieved that they were not included in the Agreement as they also had a legal action afoot at the time. Further, they disputed the provisions of the Agreement and its validity. 

4.	The proceedings did not progress after May 2016 until December 2019 when the plaintiffs heard that the State was intending to pay some K201million to the SML landowners out of the Misima Trust Fund. In response to this news and in opposition to the proposed payment, the original plaintiffs revived the proceedings and were joined by the further plaintiffs. They added more defendants and raised issues concerning the Trust Fund (in particular its management) and other benefits and entitlements due to the landowners. On 3rd March 2020 the court ordered the proceedings be converted to pleadings.  A Statement of Claim was filed on 13th July 2020 and that is the subject of the present application before me.

5.	By notice of motion filed 25th February 2021, the first, second, third, fourth, seventh and eighth defendants apply to have the proceedings dismissed under O8 r27 of the National Court Rules for:

•	Disclosing no reasonable cause of action; and
•	Being an abuse of process.

6.	In the alternative, the applicants contend that the proceedings are statute-barred under s.16 of the Frauds & Limitations Act 1988. 

ARGUMENTS BY THE PLAINTIFFS

7.	While there was another application to dismiss moved by the fourteenth defendant that was dismissed by Cannings J on 17th February 2021, that application was based on O12 r40, and the arguments then were based on want of a s.5 notice under the Claims By and Against the State Act and the lack of standing of the plaintiffs.  The issue of issue estoppel does not arise as the present application is founded on a different provision that Cannings J suggested could have been an appropriate basis to ground the previous application. 

8.	The plaintiffs also submitted that the same issues raised in the present application are the subject of pending Supreme Court appeal proceedings. However, no proper evidence was adduced in respect of the appeal, and there is no evidence that the proceedings have been stayed pending determination of the related Supreme Court case. 

9.	The plaintiffs also argued that an application to dismiss by a defendant cannot be entertained where the defendant has not filed a defence. No case authority was cited in support of that submission. In any case it is a misconceived proposition because once a defendant files a notice of intention to defend, it may take further steps in the case including making applications such as the present. 

CONSIDERATION

10.	Order 8, Rule 27 provides:

" 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.

(2) 	The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

11.	Having regard to the evidence relied upon and the submissions of counsel, I come to the following views. 

12.	After reading and re-reading the Statement of Claim, it is still not clear to me what exactly the plaintiffs are claiming. This is due largely to the verbose and convoluted pleadings. There are claims such as fraud and breach of statutory duties that lack proper particulars. The structure of the pleadings does not follow any logical order which make it difficult to make sense of it. There is a fair amount of evidence and legal submissions, opinions and commentaries intermingled with the facts. Further, facts establishing the elements of the causes of action such as fraud and breach of statutory duties are not properly pleaded. Order 8 rule 30 requires an allegation of fraud to be pleaded with particulars. That is lacking in the present case. The elements of statutory negligence which are affirmed in Goma v Protect Security & Communication Ltd (2013) SC1300 are also absent. I am mindful that it is not necessary to expressly plead all the elements of a cause of action, so long as the pleadings sufficiently disclose the claim the defendant is to answer (Kuman v Digicel (2013) SC1232). But in my opinion, the pleadings do not do that. The pleadings also do not disclose what specific cause of action is claimed against each of the defendants. For example, what are the legal claims against the banks or the Milne Bay Provincial Government and its political and administration heads?

13.	If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out; Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915. 

14.	With respect, the pleadings are jumbled and messy, and in my view have tendency to cause embarrassment and prejudice to the defendants, leaving them in no uncertainty as to what it is exactly that each of them is to defend. The pleadings in the statement of claim should be brief and concise and set out the facts that cover the elements of the cause of action alleged. The defendants must then be able to understand what is alleged in order to properly respond. 

15.	I also note that while the claims in the originating summons arose from or were related to the Misima Mediated Agreement, the Statement of Claim introduces new claims that relate to the Misima Trust Fund and the Oil Search shares, and these added claims were prompted by the alleged announcement by State officials on a visit to Misima in November 2019 of payment due from the Trust Fund. Where a new cause of action is claimed upon amendment to pleadings, that is permissible provided it is based on the same facts or substantially the same facts as the initial cause of action; Tipaiza v Yali (2006) N3178. In my opinion, the principle equally applies where an originating summons is converted to pleadings. The causes of action added by the Statement of Claim filed 3rd March 2020, do not arise from the same facts or substantially the same facts that gave rise to the claims contained in the originating summons filed 14th August 2014. The additional causes of action particularly relating to the seventh to twenty second defendants should not be permitted to stand. The inclusion of these claims and the defendants is an abuse of process. 

16.	Be that as it may, I remind myself that the procedure for summary disposal should be confined to cases where the cause of action is obviously and incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable; PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85.

17.	Order 8 rule 27 allows this court to strike out all or part of the pleadings on terms. I consider it in the interest of justice that the plaintiffs be allowed to amend the Statement of Claim to include only the causes of action based on the facts upon which they filed the originating summons in 2014. All new claims may be considered for filing as a separate court action. That is a matter for the plaintiffs. In this way, they may continue to argue their original claims in these proceedings while their new disputes may be pursued separately.

18.	Having reached this decision, it unnecessary to consider the other arguments raised by the applicants. 

ORDER

19.	The orders of the court are:

(1)	The application to dismiss the proceedings under O8 r27 of the National Court Rules is granted subject to these terms:
(a)	The plaintiffs are given leave to file an amended statement of claim by 20th August 2021, that pleads causes of action based only on the facts giving rise to the claims in the originating summons filed 14th August 2014; and
(b)	The plaintiffs are at liberty to file separate court action in respect of the new causes of action improperly added in the Statement of Claim filed 13th July 2020.
(2)	The plaintiffs shall pay the applicants’ and the fourteenth defendant’s costs of and incidental to the applicants’ notice of motion filed 25th February 2021.
(3)	Time for entry of these orders, shall be abridged to the date of settlement by the Registrar, which shall take place forthwith.
________________________________________________________________
Lyons Putupen & Associates: Lawyers for the Plaintiffs
Holingu Lawyers: Lawyers for the First, Second, Third, Fourth, Seventh & Eighth Defendants
Twivey Lawyers: Lawyer for the Fourteenth Defendant