Boera Development Corporation Ltd v Kimas [2022] PGNC 353; N9776 (21 July 2022)

N9776

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 485 OF 2009

BETWEEN:
BOERA DEVELOPMENT CORORATION LIMITED
First Plaintiffs

APAU BESENA COMPANY LIMITED
Second Plaintiffs

NAMONA OALA & OTHERS of Boera Village
Third Plaintiffs

AND:
OALA MOI & OTHERS of Boera Village
Fourth Plaintiffs

AND:
RAHO KEVAN for himself and on behalf of Tubumaga
Clan of Boera Village & Others
Fifth Plaintiffs

AND:
PEPI KIMAS as the Delegate of the Minister for Lands
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Dingake J
2022: 23^rd June, 21^st July

PRACTICE AND PROCEDURE – application by plaintiffs seeking leave to review decision of taxing officer to review taxable costs awarded – preliminary objections raised by third defendant - objections relate to whether plaintiff’s Notice of Motion is defective for the erroneous naming of the parties – whether Plaintiffs’ did not comply with Order 22 60 (3) of the National Court Rules (NCR) – whether it is incompetent to change the naming of the parties as the Plaintiffs did – changes to the naming of parties renders the notice of motion to be defective - Plaintiff did not as required by Order 22 60 (3) of NCR, deliver to the taxing officer objections in writing at the time of making the application – notice of motion is defective and is dismissed – costs awarded to the defendants

Counsel:

Mr. Bare Mol, for the Plaintiffs.
Mr. Kenneth Imako, for the Third Defendant.

RULING

21^st July, 2022

1. DINGAKE J: This is my ruling with respect to the preliminary objections raised by Mr. Imako, learned Counsel for the Third Defendant, Esso Highlands Limited.
   
2. The citation of the parties herein is as reflected in the Plaintiffs’ Notice of Motion of the 6^th of May, 2022, and not as per the Originating papers.
   
3. The material background facts are that the Plaintiffs by way of a Notice of Motion dated the 6^th of May, 2022, seek to be granted leave to review the decision of the taxing officer and if same is granted to review the said decision.
   
4. The above Notice of Motion reflects the Third Defendant, in the Originating papers, as the Second Defendant, and the taxing officer Mr. James, is named as the First Defendant.
   
5. The Third Defendant has raised two (2) preliminary objections; namely:
   1. That the Plaintiff’s Notice of Motion is defective for the erroneous naming of the parties;
   2. That the Plaintiffs’ did not comply with Order 22 60 (3) of the National Court Rules (NCR).
      
6. It is not in dispute that in the Plaintiffs’ Notice of Motion, Mr. James, the taxing officer, appears as the First Defendant and Esso Highlands Limited, appears as the Second Defendant.
   
7. In the Originating papers, the First Defendant is Pepi Kimas as the delegate of the Minister for Lands and the Second Defendant is the Independent State of Papua New Guinea.
   
8. Mr. Imako, learned Counsel for Esso Highlands Limited, submitted that it was incompetent to change the naming of the parties as the Plaintiffs did.
   
9. I agree with the Third Defendant that it is incompetent to change the naming of the parties as reflected in the Plaintiffs’ Notice of Motion. Such change render’s the Notice of Motion defective.
   
10. With respect to the objection relating to non-compliance with Order 22 60 (3) of the NCR, it is not in dispute that the Plaintiff’s objections were made on 23^rd November 2021. This was confirmed by learned Counsel for the Plaintiff, Mr. Bare Mol.
    
11. It is also a matter of record that this Notice of Motion was dated the 6^th of May, 2022.
    
12. There is evidence in the form of the Affidavit of John Ules Jnr filed on the 12^th of May 2022, that suggests that service on the taxing officer as required by Order 22 60 (3) of the NCR was served on Mr. James, on the 11^th of May, 2022 (See Annexure “B” of the Affidavit of Service by John Ules Jnr., filed on the 12^th of May, 2022).
    
13. Order 22 60 (3) of NCR is clear and it is couched in mandatory terms. It provides that:

“60. Application for review of taxation. (U.K. 62/33)

(3) Every applicant for review under this Rule must at the time of making his application deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.” (Emphasis mine).

14. It is clear from the facts outlined above that the Plaintiff did not as required by Order 22 60 (3) of NCR, deliver to the taxing officer objections in writing at the time of making the application. The objections were made on the 23^rd November 2021, but service on Mr. James, the taxing officer, was made on 11^th of May 2022, a few days after the 6^th of May, 2022, the date of the Notice of Motion.
    
15. It follows from the above facts that the Plaintiffs’ Notice of Motion is defective for one or all of the reasons, outlined earlier, namely, the erroneous naming of the parties and for failure to comply with the mandatory terms of Order 22 60 (3) of NCR, and is liable to be dismissed.
    
16. With respect to costs the general rule is that costs follow the event. There is no reason why costs should not follow the event in this case.
    
17. In the result, the Plaintiffs’ Notice of Motion dated the 6^th of May 2022, is defective and is accordingly dismissed with costs.

_______________________________________________________________
Warner Shand Lawyers: Lawyer for the Plaintiff
Allens Lawyers: Lawyer for the Third Defendant