Marea Land Group Incorporated v Tkatchenko [2021] PGNC 538; N9345 (3 December 2021)

N9345

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 925 OF 2018

MAREA LAND GROUP INCORPORATED
Plaintiff

V
HONOURABLE JUSTIN TKATCHENKO IN HIS CAPACITY AS THE MINISTER FOR LANDS & PHYSICAL PLANNING, URBANIZATION AND APEC 2018
First Defendant

AND:
IRUNA ROGAKILA IN HIS CAPACITY AS THE REGISTRAR OF INCORPORATED LAND GROUPS
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
NEW BRITAIN PALM OIL LIMITED
Fourth Defendant

AND:
PHILIP VITOLO
Fifth Defendant

AND:
KENNY SONNY
Sixth Defendant

AND:
HERMAN PASI
Seventh Defendant

AND:
VINCENT TOVILI
Eighth Defendant

Waigani: Miviri J
2021: 02^nd & 3^rd December

PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Order 16 Rule 13 (13) (1) & Order 11 Rule 28 NCR – Affidavit of fifth Defendant be struck out – Duties of Parties – Court Not to Ascend into Dispute in the Arena – Preparation of Evidence & Material in Case responsibility of Parties – Motion Not made Out – Dismissed – Cost follow event.

Cases Cited:

Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2013] PGSC 64; SC1230

Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545

Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533

General Accident Fire & Life v Farm [1990] PNGLR 331

University of Papua New Guinea v Rosso [ 2021] PGNC 318; N9063

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47
Counsel:

H. Leahy, for Plaintiff
T. Kuma, for Fourth Defendant
I. Emmanuel, for Fifth Defendant
N. Yano, for the State Defendants

RULING

03^rd December, 2021

1. MIVIRI, J: This is the ruling on the Notice of Motion of the plaintiff seeking that the affidavit of the fifth defendant Philip Vitolo sworn and filed of the 18^th August 2021 be struck out and taken off the Court file for the proceedings filed here, because it is irrelevant and was filed in breach of the National Court Order made 25^th April 2019. And this is pursuant to Order 16 Rule 13 (13) (1) and Order 11 rule 28 (b) of the National Court Rules.
   
2. Secondly, he seeks that the matter be set down for prehearing conference pursuant to Order 22 rule 5 (1) & (2) of the National Court Rules.
   
3. Also, that the Court confirm the correctness of the Review Book pursuant to Order 16 Rule 13 (8) (1) (a) of the National Court Rules.
   
4. And costs pursuant to Order 22 Rule 5 (1) (2) and Order 22 Rule 20 and Order 22 Rule 35 of the National Court Rules. Any other orders in the discretion of the court pursuant.
   
5. Order 11 Rule 28 is headed Scandal, etc. It is in the following; “Where there is scandalous, irrelevant or otherwise oppressive matter in an Affidavit the Court May order that- (a) the matter maybe struck out; or (b) the affidavit be taken off the file.”
   
6. The notice of motion relies on the affidavit of Herman Leahy filed of the 1^st October 2021 document number 101. He is the lawyer who has carriage and conduct of the matter for and on behalf of the Plaintiff. Annexure “A” is the directional orders that this Court has issued in the matter of the 25^th April 2021 entered of the 30^th April 2019. Relevantly for the purposes of this application the last direction would have seen the Review Book on the 26^th July 2019. Preceding that the Parties were to file and serve on each other any further affidavits they wish to file in the proceedings on or before close of business 17^th May 2019. This was order or direction number two in that directional orders of the 30^th April 2019. It was incumbent upon the parties to observe and to adhere compliance.
   
7. Here Annexure “B” is the affidavit by the fifth defendant Philip Vitolo sworn of the 18^th August 2021 filed of the 18^th August 2021. Which is clearly in defiance and contradictory to that direction number two. All affidavits should have been filed by 17^th May 2019. This is now 2^nd December 2021. And the subject affidavit has been filed 18^th August 2021. Leave has not been obtained from the Court to vary this directional order number (2) by the fifth Defendant. It means affidavit of Philip Vitolo sworn of the 18^th August filed that same day is in the record of the proceedings in defiance of a court directional order. In particular directional order number two (2) particulars I have set out above.
   
8. Plaintiff has relied on Order 11 Rule 28 (b) that it be taken off the file. Which is initially to do with an affidavit is that “scandalous, irrelevant or otherwise oppressive matter in an Affidavit,” having so determined, the next phase is that scandalous, irrelevant, or oppressive matter within can be itself taken off the face of the affidavit. Or (b) the affidavit because of that reason can be taken off the record. Here the argument of the plaintiff is that it be taken off the file because it was filed outside the directions of the Court. That is a very valid argument and conforms that Court directions, orders must be complied with. Because the law is clear: Lae Bottling Industries Ltd v Lae Rental Homes Ltd [2013] PGSC 64; SC1230 (30 August 2013), that failure to adhere and to comply with the directions of the Court will lead inevitably to the power of the Court to summarily determine proceeding for failure by the applicant to comply with directions of the Court. It is even more serious where the noncompliance is continuing and persistent with no reasonable explanation provided by the offending party.
   
9. Here the situation is not against the content of the affidavit as being scandalous irrelevant or oppressive, because the plaintiff has led no evidence in this regard. But that the subject affidavit has been filed outside the time limitation that was given by the Court. It is almost two years since that order was made initially. Clearly its observance and adherence are strong as the matter is a 2018 matter and ought to be dealt with in one form or another as dictated by the law upon its facts and circumstances. Breach of court orders have seen very stiff action by the Court as in Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998). There is no excuse placed against the application except as to why it was necessary to get that affidavit and file as was done in breach of the directional orders of this Court. The directional orders are clear and unambiguous: Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533. There really is no excuse by the fifth defendant not to comply. There is no dispute that the fifth defendant is aware of it, knows of its existence. Yet has elected not to apply to vary it so as to allow the filing of the affidavit here of the deponent Philip Vitolo.
   
10. It will not be necessary to determine whether it is “scandalous, irrelevant or otherwise oppressive matter in an Affidavit,” so as to disallow as applied as no evidence has been led. But the balance has been discharged that it was filed in defiance of a court order particulars set out above. Accordingly, it will be removed and struck off from the record of the proceedings forthwith as applied. Court Orders must be observed and adhered to leave has not been sought to vary the order 2 of the directional orders of the 25^th April 2019 entered of the 30^th April 2019.
    
11. Consequential to this determination is that pursuant to order 16 Rule 13 (6) (3) (o) prehearing conference is now set for the Monday 13^th December 2021 at 9.30am at the directions hearing of the Court.
    
12. In this regard also pursuant to order 16 Rule 13 (8) (1) (a) the correctness of the review book is confirmed 26^th July 2019 as it is, as of the last order of the Court of the 25^th April 2019.
    
13. It is also important to place that Directional Orders give a sense of attaining justice within a scheduled time conditions set that impose upon the parties to comply: Ace Guard Dog Security Services Ltd v Yama Security Services Ltd [2003] PGNC 69; N2459 (5 September 2003) because if there is inadequacy in compliance, it will inevitably be detrimental to the offending party, as is the case here. It is not a mistake when the converse is dismissal for want of prosecution, General Accident Fire & Life v Farm [1990] PNGLR 331 so as to avoid procrastination, justice delayed is justice denied. What the plaintiff has applied for has sustained: University of Papua New Guinea v Rosso [2021] PGNC 318; N9063 (13 August 2021). It would not be erroneous to follow suit for the striking off the record of the court, the affidavit of the fifth defendant Philip Vitolo sworn of the 18^th August 2021 filed of the 18^th August 2021. The application is therefore granted in full terms as applied.
    
14. Collaterals side issues not pertinent or fundamental, underpinning a case should be avoided. Unnecessarily drawing of court time and procrastination must be controlled and avoided. Costs will follow the event on a Solicitor Client basis for the reasons set out above. And will be against the fifth Defendant because of the reasons I set out above pursuant to Order 22 Rule 5 (1) and (2) including Order 22 rule 20 of the National Court Rules, for the fifth defendant to settle by or before the expiration of seven days as of the date of this Judgement. That period lapses Tuesday the 14^th December 2021. It is important to gauge that, is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. In my view there is blameworthiness and therefore costs will entail on a Solicitor Client basis.
    
15. Accordingly, the formal orders of the Court are:
    
    • (i) The Plaintiff’s notice of motion of the 1^st October 2021 is granted in full as pleaded.
      
    • (ii) The affidavit of the fifth defendant Philip Vitolo sworn and filed of the 18^th August 2021 is struck out and taken off the Court file pursuant to Order 11 Rule 28 (b) of the National Court Rules.
      
    • (iii) Prehearing conference is now set for the Monday 13^th December 2021 at 9.30am at the directions hearing of the Court.
      
    • (iv) Pursuant to order 16 Rule 13 (8) (1) (a) the correctness of the review book is confirmed 26^th July 2019 as it is, as of the last order of the Court of the 25^th April 2019.
      
    • (v) The plaintiffs Costs here will be paid by the fifth defendant on a Solicitor Client basis by or before the expiration of 7 days which expires on Tuesday 15^th December 2021.
      
    • (vi) Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders Accordingly.

__________________________________________________________________

Pacific Legal Group lawyers : Lawyer for the Plaintiff/Applicant

Office of the Solicitor Generals: Lawyer for State Defendants

Emmanuel Lawyers : Lawyer for the Fifth Defendant