N9820

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 66 OF 2009

BETWEEN:
FRANCIS KAUMU FOR HIMSELF AND ON BEHALF OF 1069 PERSONS OF BULUMA VILLAGE NAMED IN SCHEDULE 1 ATTACHED TO THE STATEMENT OF CLAIM HEREIN
Plaintiff

AND:
CONSTABLE BRIAN WINI
First Defendant

AND:
CONSTABLE PAUL VAMILET
Second Defendant

AND:
CONSTABLE PAUL KARL
Third Defendant

AND:
GARI BAKI-COMMISSIONER FOR POLICE
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Kimbe:  Batari J
2019: 	24th April
2022:	21st July

PRACTICE AND PROCEDURE – class action – commencement of – principal plaintiff in representative capacity – whether in compliance with procedural form – competency of – discretion to preserve proceedings and order compliance with proper form. 

Cases Cited:

Simon Mali v The State [2002] PNGLR 15
Tigan Malewo v. Keith Faulker (2009) SC960
Fuliwa v. Wagambie [2007] PGNC 120
Mark Philip v. Ken Tiliyako (2019) SC1783
Huriba Andago v. Andy Hamaga (2018) N337
Ben Kwayok v. Jeremy Singomat (2017) N7097
Amos Ere v. National Housing Corporation (2006) N6515
PNG Communication Workers Union v. Telikom PNG Ltd (2018) N7322

Counsel:

Mr. A Kumbari, for the Plaintiffs
No appearance, for the Defendants

DECISION

21st July, 2022

1.	BATARI, J:  This is a decision on the issue of liability where members of the Royal Papua New Guinea Constabulary conducted a raid at Buluma Village resulting in allegations of trespass, destruction and damage to properties and breaches of constitutional rights.  The defendants deny the charges and liability.

2.	The trial was fixed for 24/4/19 upon sufficient notice to the defendants and their lawyer, the Solicitor-General. Like in numerous instances on directions hearings, the Solicitor-General was adequately served the notice of hearing but the lawyer(s) are not here and there has been no explanation for their absence.

3.	I am satisfied the lawyers have been adequately informed and are aware of the date of today’s hearing.  They have impliedly acquiesced to the hearing proceeding in their absence.  I will so order that the plaintiffs proceed on with their case to call evidence ex parte on liability only.

4.	The plaintiffs tendered and relied on the following affidavit:

	Exhibit P1	Affidavit of Hubert Wariwo filed – 14/5/13
	Exhibit P2	Affidavit of Pauline Kaliba filed – 14/5/13
	Exhibit P3	Affidavit of Steven Giru filed – 14/5/13
	Exhibit P4	Affidavit of Graham Kibita filed – 14/5/13
	Exhibit P5	Affidavit of Martin Reki filed – 14/5/13
	Exhibit P6	Affidavit of Francis Kaumu filed – 14/5/13

5.	Mr. Kumbari of counsel for the plaintiffs also relied on his written submissions in Document 41. These and the documentary evidence will be read into the records.

6.	On hindsight, this matter was adjourned to 8/5/19 for decision, it was delivered.  However, there is no record of any such eventuality by Court orders. This became apparent when the matter was listed for mention on 13/5/19. I was surprised and expressed so as per the transcription recordings. More importantly, this is a matter that no amount of brainstorming or deliberations is required on.  It is most unfortunate, the file notations and the CDS data were left unattended to.

7.	This is to finalize this case.  The question of liability is raised on two matters.  The first issue is on the standing of Francis Kaumu to bring this case in a representative capacity. This is a pivotal issue of jurisdiction on whether the case is properly before the Court as a class action. The question is raised on the defendants’ Defence.

8.	It is settled that in a representative action, all the intended plaintiffs must be named and duly identified in the Writ or a schedule to the Writ, accompanied by a written consent which must be filed by way of an Authority to Act Form as enunciated by the Supreme Court in Simon Mali v The State (2002) PNGLR 15.  This principle has its origin in O. 5 r 13 of the National Court Rules.  See also, Tigan Malewo v. Keith Faulker (2009) SC 960 which held, that where a plaintiff is acting in a representative capacity for other persons:

(i)	all intended plaintiffs (those who he claims to represent) must be named in the originating process;

(ii)	each and every intended plaintiff must give specific instructions (evidence in writing) to their lawyer to act for them;

(iii)	any person who commences proceedings and claims to represent other intended plaintiff must produce an authority to the court to show that he was authorized for them to file proceedings as a class, representative action. 

9.	In, Huriba Andago v Andy Hamaga (2018) N7332 my bother Justice Dingake cautioned that:

“It is trite learning that pursuant to Order 5 Rule 13 of the National Court Rules, the Court has an overriding discretion to prevent representative proceedings, not properly commenced to continue. This was recognised by Davani J in Tigan Malewo v Faulkner (2007) N3357 and confirmed by the Supreme Court in Tigan Malewo v Faulkner (2009) SC960.”

10.	So, the question the Court must first answer is whether the procedural practice requirements authoritatively settled by the Supreme Court in this jurisdiction had been satisfied. If not, then what orders should the Court make in all the circumstances of this case which includes this delayed ruling?

11.	Mr. Kumbari submitted, that the consent for the plaintiff to act for and on behalf of himself and other 1069 persons was lawfully given in a general meeting held at Buluma Village on 3/5/2009.  This is adequately pleaded in paragraphs 2 (1) (11) of the statement of claim and that satisfies the requirement in O. 5 r. 13 (1) of the National Court Rules.  Counsel also relied on O.15 r.12 of the Supreme Court U/K and the National Court case of Fuliwa v. Wagambie [2007] PGNC 120.

12.	The reference to a statement of fact in the Writ of Summons regarding consent is not evidence.  The schedule to the Writ of Summons also can not be properly construed as constituting the required consent and authorization as settled by the Supreme Court.

13.	It is now settled procedural law, that failure to meet the requirement of a representative action under O 5 r 13 means the plaintiff lacks standing and therefore no reasonable cause of action is shown, and it amounts to abuse of process.  See Mark Philip v. Ken Tiliyako (2019) SC 1783. See also recent National Court cases which include: Ben Kwayok v. Jeremy Singomat (2017) N7097, Amos Ere v. National Housing Corporation (2016) N6515.

13.	So, it seems the answer is clearly to dismiss this action.  Having regard to conduct of the parties in this case and particularly by the Solicitor-General’s lack of attention to defending the defendants’ position and the failure to formally raise the issue of competency of proceedings in an application before the Court and in view of the plaintiffs’ attentiveness to their case through their lawyer, I am inclined to think the Court has discretion to dismiss these proceedings.

14.	In Mark Philip v. Ken Tiliyao (supra), the Supreme Court approved the approach by Cannings J in PNG Communication Workers Union v. Telikom PNG Ltd (2018) N7322 and endorsed the proposition that non-compliance with the procedural requirements of a representative action under O 5 r 13 of the National Court Rules should normally attract dismissed of a proceeding.  However, if the Court allows a plaintiff time to correct the non-compliance but the plaintiff does not rectify the default and without good reasons, the Court should then dismiss the proceedings.

15.	I adopt that proposition in dealing with this case with appropriate directions. The circumstances of this case where the defendants procrastinated and caused considerable delays by their non-attendance which the plaintiff attempted to resolve by obtaining ex parte hearing on the issue of liability in my view should warrant a ruling in the defendants’ favour. These proceedings should be adjourned until the following directions are satisfactorily complied with:

(i)	Schedule 1 to the Writ of Summons filed on 15/6/2009 is in sufficient compliance with the procedural requirement that all intended plaintiffs (those who he claims to represent) must be named in the originating process.

(ii)	Within 21 days, each and every intended plaintiff must give specific instructions in document form to the lawyers to act for them (him/her).

(iii)	Within 21 days, the principle plaintiff, Francis Kaumu must produce an authority to the Court from each and every person he purports to represent to show he is authorized by them to file proceedings as a class action.

(iv)	all documents filed under directive orders in paragraphs (ii) and (iii) above must be filed and served on the Solicitor-General, the First, Second and Third Defendants within 21 days.

16.	Until compliance with the orders above, the matter is adjourned to the Registry.  Cost be in the cause.
___________________________________________________________
Kumbari Lawyers:	Lawyers for the Plaintiff	
Solicitor-General: Lawyers for the Defendants