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Maribu v Pundiap [2022] PGNC 543; N10063 (30 March 2022)

N10063


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS 83 OF 2019


BETWEEN


RICHARD MARIBU for Molage Clan – Gomlongon Village Siassi
Plaintiff


AND


WAPE PUNDIAP – PNG Forest Authority Area Manager Momase Region Lae
First Defendant


AND


FOREST MINISTER AND PNG FOREST AUTHORITY
Second Defendant


AND


INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND


AWI TING – ASET MERIAH LOGGING LTD ONWERS & MANAGING DURECTOR OF ASET MERIAH LOGGING LTD
Fourth Defendant


AND


ASSET MERIAH LOGGING LTD
Fifth Defendant


AND


DAVID ALINGOU – CHAIRMAN UMBOI TIMBER INVESTMENT (UTI) LTD
Sixth Defendant


AND


UMBOI TIMBER INVESTMENT (UTI) LTD
Seventh Defendant


Lae: Dowa J
2022: 21st & 30th March


PRACTICE AND PROCEDURE – application for default judgment- considerations apply- failing to meet the prerequisites of default judgment-application refused.

PRACTICE ND PROCEDURE-proceedings incompetent for lack of representative capacity – need for potential plaintiffs be named in originating process-Order 5 Rules 3 and 13 of the National Court Rules-
PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action- Order 12 Rule 40 of the National Court Rules-pleadings cause confusion, prejudice, and embarrassment -proceedings summarily dismissed  


Cases Cited:
Magiten v Beggie (2005) N2880
Giru v Muta (2005) N2877
Maki v Dokup (2012) N4838
Bala Kitipa v Vincent Auali (1998) N1773
John Kunekene v Michael Rangsu (1999) N1917
Tiaga Bomson v Kerry Hart (2003) N2428
Eliakim Laki v Morris Alaluku (2000) N2001
Kunton v Junias (2006) SC929
Mapmakers v BHP [1987] PNGLR 78
Simon Mali -v- The State (2002) SC690
Tigam Malevo v Keith Faulkner (2009) SC960
Jackson Tuwi -v- Goodman Fielder International Limited (2016) SC1500
Mt Hagen Urban Local Level Government v Sek No.15(2009) SC1007
PNG Forest Products v State [1992] PNGLR 85
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
Wabia v BPPetroleum (2009) N4337
National Provident Fund Board v Maladina & Others (2003) N2486
Ruhuwamo v PNG Ports Corporation (2019) N8021


Counsel
Plaintiff in Person
L. Vava, for the First & Second Defendants
B. Tomake, for the Third Defendant


RULING

30rd March 2022

1. DOWA J: This is a ruling on two competing applications by the parties.

Plaintiff’s Notice of Motion

2. The Plaintiff applies to the Court, seeking default judgment under Order 12 Rules 25 & 27 of the National Court Rules.


Defendant’s Notice of Motion

3. The First and Second Defendants apply for dismissal of proceedings pursuant to Order 12 Rule 40 (1) of the National Court Rules.

Brief Facts

4. The Plaintiff is a leader of Molage Clan, Gomlongon village, Siassi, Morobe Province. He says he represents his clan in these proceedings. He is seeking damages for personal injury as well as damages for environmental damage done to their customary land because of illegal logging by the fifth Defendant taking place at Zinoto in block 3, Umboi timber project area, Siassi. Morobe Province. The Plaintiff has also made allegations against PNG Forest Authority for breach of its statutory duties under the PNG Forestry Authority Act and the Environment and Conservation Act.


Issues

  1. The issues for consideration are:
    1. Whether the Plaintiff is entitled to default judgment.
    2. Whether the Plaintiff’s proceedings be dismissed for being frivolous and vexatious, disclosing no reasonable cause of action.

Plaintiff’s Application

  1. The Plaintiff seeks default judgment, by Notice of Motion filed 9th December 2021 against all the Defendants pursuant to Order 12 Rule 25 of the National Court Rules. Rule 25 reads:

“Default

A defendant shall be in default for the purposes of this Division.

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to his his defence has expired but he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.”

  1. The law on applications for default judgment under Order 12 Rule 25 of the National Court Rules is settled. The Court has a discretion whether to grant or not in the circumstances of each case. Refer: Magiten v Beggie (2005) N2880, Giru v Muta (2005) 2877, Maki v Dokup (2012) N4838, Bala Kitipa v Vincent Auali (1998) N1773, John Kunekene v Michael Rangsu (1999) N1917, Tiaga Bomson v Kerry Hart (2003) N2428, Eliakim Laki v Morris Alaluku (2000) N2001 and Kunton v Junias(2006) SC929. A study of the cases listed above show a wide range of considerations apply when exercising discretion which are:
    1. Whether the statement of claim raises serious allegations of fraud or deceit.
    2. The extent of default by the defendants.
    3. Whether the defendant appears to have a good defence.
    4. Whether the pleadings are vague, ie, where the statement of claim discloses no reasonable cause of action,
    5. Whether the Plaintiff has prosecuted his case diligently
    6. Whether the entry of judgment would prejudice the rights of co-defendants
    7. Whether the interests of justice would be preserved by the entry of default judgment.
  2. The Plaintiff filed several affidavits, some of which are relevant for this application. The evidence shows all the defendants were served copies of the original writ of summons. No specific details and proof of service were filed. This may be because the Plaintiff is not being represented by a lawyer. The first, second and third defendants filed their notice of intention to defend on 8th July 2020 but no defence. The fourth and fifth Defendants filed their Notice of Intention to Defend on 8th August 2021but no defence being filed. The sixth and seventh Defendants did not file any Notice of intention to Defend nor a Defence. I note at this juncture that the sixth and seventh defendants may not have been properly served with copies of the writ. Copies of the writ were left with Sema Levi Alan and Timothy Mais respectfully with no details of their official capacities or authority to receive service on behalf of the sixth and seventh Defendants.
  3. The application for default judgment is opposed by the second and third defendants. I have carefully considered the Plaintiffs application and the submissions of parties. Although the defendants have not filed their respective defences, I am not satisfied that this is an appropriate case for entry of default judgment. I have several reasons for holding this view.
  4. Firstly, the Plaintiff gave no warning to the Defendants of his intention to apply for default judgment especially after some of the defendants have filed their Notice of Intention to Defend in accordance with the procedural requirement as decided in the case; Mapmakers v BHP (1987) PNGLR 78.
  5. Secondly, the amended statement of claim was filed on 8th October 2021. Copies of the amended writ were served on the first and second defendants on 9th November 2021. The third defendant was served copies of the Amended statement of claim on 17th December 2021.The fourth and fifth defendants were served by email and the sixth and seventh defendants were not served the amended statement of claim. The Plaintiff filed the Notice of Motion on 9th December 2021 without appropriate warning. In the circumstances, there is no clear evidence of default. Even then the extent of any delay and default is not unreasonable. As for the second and third defendants, they have about 90 days from date of service to file their defence under section 9 of the Claims by and Against the State Act. The third defendant submits that the Notice of Motion was filed even before they were served a copy of the amended statement of claim. The application is immature.
  6. Thirdly, the second and third defendants raised the issue of representative capacity of the Plaintiff. The Plaintiff pleaded in the statement of claim that he represents the Molage Clan, Gomlongon village, Siassi, Morobe Province. Under Order 5 Rules 3 and 8 of the National Court Rules, the Plaintiff is required to have all the names of the Plaintiffs included in a schedule and have their written consent giving him authority to act. This has not been done.
  7. Fourthly, the pleadings are vague and convoluted. It contains evidence and submissions. It does not disclose a reasonable cause of action against each of the defendants. I will say more later in my judgment when ruling on the first and second defendants’ Motion.
  8. Finally, the interests of justice will not be best served if default judgment is allowed to be entered against the defendants.
  9. For these reasons, the Plaintiff’s application for default judgment is refused.

The First and Second Defendants’ Application
16. The First and Second Defendants seek dismissal of the Plaintiff’s proceedings under Order 12 Rule 40(1) and Order 8 Rule 27 of the National Court Rules on the following grounds:


  1. lack of legal representative capacity of the Plaintiff
  2. disclosing no reasonable cause of action
  1. pleadings in the claim tend to cause prejudice, embarrassment or delay in the proceedings and is an abuse of the process.

Lack of Representative Capacity


17. Mr. Vava of counsel for the first and second defendants submits that the Plaintiff, Richard Maribu, lacks legal capacity to represent his clan in this class action. Ms Maliaki, counsel for the third Defendant supports the application. Ms Maliaki submits that in any class action it is a requirement for a legal representative to include the names of all persons he represents to have their consent endorsed on the statement of claim and that in this case the Plaintiff has not done that.


18. The Plaintiff opposed the application and submitted that he is the leader of the Molage clan and has the capacity to represent his clan. He relies on a consent form signed by 15 clan members which was attached to an affidavit of the Plaintiff sworn and filed 17th March 2022.


19. The relevant procedural law dealing with representative capacity is Order 5 Rules 3 and 13 of the National Court Rules. Rules 3 and 13 read:

”3. Joint right. (8/3)

(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him.

(a) all persons so entitled shall be parties to the action; and

(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.

(2) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.”

“13. Representation; Current interests. (8/13)

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.

(3) Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.

(4) A judgement entered, or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(5) An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.

(6) Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability........”

  1. The case law on representative capacity is settled in the cases, Simon Mali -v- The State (2002 SC690), Tigam Malevo v Keith Faulkner (2009) SC960 and Jackson Tuwi -v- Goodman Fielder International Limited (2016 SC1500. The basic elements of instituting class action are:
    1. All intended Plaintiffs be named in the originating process.
    2. Each and every intended Plaintiff must give specific instructions evidenced in writing to the lawyers to act for them.
    1. The principal or lead Plaintiff must produce an authority to the Court to show that he is authorized by them.
  2. In the present case, the representative capacity of the lead Plaintiff is not clearly pleaded. The Plaintiff, Richard Maribu, pleaded in paragraph one (1) of the statement of claim that he is the Plaintiff. Apart from a personal injury claim, the balance of the statement of claim is in respect of illegal logging at his Maloge clan land. The substantial claim sought is compensation for illegal logging and for environmental damage of the Maloge clan’s land. The Plaintiff, Richard Maribu, has deposed in many of his affidavits, the latest filed on 17th March 2022, that he is the leader of the Maloge clan, and he represents his clan in these proceedings. Fifteen (15) members of his clan signed a consent, authorizing him to represent them in these proceedings. A copy of the Consent form is attached to his latest affidavit as alluded to earlier. However, it is not pleaded clearly that it is a class action with a schedule of co-Plaintiffs. The members of the Molage clan have not been specifically named in the Writ of Summons. Only fifteen names are contained in a separate list where they signed their consent, though belatedly, giving authority to the lead Plaintiff to represent them. The list is not endorsed as part of the Writ of Summons. Neither has it been filed separately in Court.
  3. Is this sufficient compliance of Order 5 Rules 3 and 13 of the National Court Rules? In my view, although the intention to authorize the lead Plaintiff is shown though belatedly, it is not sufficient in meeting the requirements of the National Court Rules. This is because the co-Plaintiffs have not been properly identified and named in the Writ of Summons. They should have been clearly named in the Writ of Summons or endorsed on the statement of claim. An attachment of a list to the affidavit of the lead Plaintiff shows their consent only. It was filed on 17th March 2022, more than three years after commencement of these proceedings. It does not cure the necessity of having their names in the originating process as parties to the proceedings. This is because the claim for environmental damages to customary land is a matter for the entire customary landowners. A claim can not be made by just one person on behalf of the rest of the villagers without them being parties.
  4. For the foregoing reasons, I find the Plaintiff, Richard Maribu, does not have legal capacity to represent his Molage clan in so far as the claim seeks damages for environment destruction of customary land.

Pleadings disclose no reasonable cause of action


  1. The second ground of the defendants’ application for dismissal is under Order 12 Rule 40 (1) of the National Court Rules. It is alleged that the pleadings fail to disclose a reasonable cause of action.

The Law


25. Order 12 Rule 40(1) of the National Court Rules reads:

“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-

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
26. The law on Order 12 Rule 40 of the National Court Rules is well settled in the Supreme Court in Mt Hagen Urban Local level Government v Sek No.15(2009) SC1007 where the Court stated in paragraphs 27-30:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Otheres v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Phillip Stagg, Valentine Kambori & The State (2006) N3050; Phillip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

  1. The law with regard to an application for dismissal of proceedings based on O.12 R.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Phillip Takori’s case (supra).
  2. The phrase ‘disclosing a reasonable cause of action’ consists of two parts: cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:
  3. In an application under O.12 R.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

27. A Plaintiff’s case should not be prematurely terminated unless it is untenable. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.


  1. On the other hand, there are other string of cases that developed the principle that, where the case is vexatious or frivolous and that it is unlikely to succeed, the case can be summarily determined. Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, and Wabia v BP Petroleum (2009) N4337 and National Provident Fund Board v Maladina & Others (2003) N2486.

29. In NPF v Maladina, Kandakasi J, (as he then was) said:

“The law on pleadings generally is settled in our jurisdiction. A clearest statement of the law is by the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. John Etape, in these terms:

"‘besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’.

Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. In Pilato -v- Metropolitan Water Sewerage and Drainange Board, McClemens J said at 365 – ‘Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies’."
30. In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial. It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation. The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources.


Present Case


31. In the present case, Mr. Vava, counsel for the First and second defendants submits that the amended statement of claim fails to plead essential facts disclosing a reasonable cause of action. He submits that the pleadings contain evidence and submissions. The statement of claim fails to set out facts giving rise to vicarious liability against the second defendant. Ms Maliaki, counsel for the third defendant supports the submissions of the counsel for the first and second defendants.


32. The Plaintiff, in response submits that the statement of claim clearly pleaded a case of illegal logging and environmental damage and for a personal injury claim against the defendants. He submits that he came a long way in instituting these proceedings and documented his case well. He submits further that it was the defendants who failed to file their defence and it is not fair and just to dismiss the proceedings now.


Reasons for Decision


33. On hearing parties, I remind myself that the Plaintiff should not be driven from the judgment seat prematurely especially where the Plaintiff is acting in person and not being represented by a lawyer.


34. The history of the proceedings show that on 3rd September 2021, the Court directed the Plaintiff to amend the pleadings after the court noting bad pleadings in the statement of claim. In compliance with those directions, the Plaintiff filed an amended statement of claim on 8th October 2021. I have studied the amended statement of claim and note it remains the same. In my view the pleadings are poorly drafted.


35. Firstly, the statement of claim contains 13 paragraphs of evidence, about 9 paragraphs of submissions and 11 paragraphs of relevant facts. It does not clearly set out the relevant facts on a cause of action relied on by the Plaintiff.


36. Secondly, the statement of claim does not clearly set out the cause of action known to law. The statement contains allegations of personal injury, noncompliance of a District Court Order, illegal logging, and environmental damage. However, there is no pleading of essential facts giving rise to each of the alleged cause of action. It makes it difficult to defend.


37. Thirdly, the pleadings fail to set out relevant facts on a cause of action against each of the defendants named. It appears there are three groups of defendants. The first, second and third defendants are the state and its agents responsible for regulatory and management duties under the PNG Forest Authority Act. The fourth and fifth defendants are investors and industry participants in the logging business. The sixth and seventh defendants are local participants in the logging industry. The statement of claim fails to set out clearly how each of the defendants caused an actionable wrong known to law to the Plaintiff for which he is seeking redress. In the absence of such pleading, it will be difficult for the defendants to defend. It is also difficult for the Court to ascertain what is the real cause of action and against whom it is being pleaded. It is difficult to ascertain the issues between the parties.


38. Finally, for the reasons given above, the pleadings disclose no reasonable cause of action. It tends to cause confusion, prejudice, embarrassment, and delay in the proceedings. It is causing confusion and prejudice because it makes it difficult for the defendants to know what cause of action, they are facing in order to prepare for their defence. It is embarrassing because it is mixed with evidence and submissions. For the same reasons it is causing a delay in progressing further.


What orders should the Court make


  1. The Court is mindful that the Plaintiff should not be driven from the judgment seat early in the proceedings. However, in my considered view, this is a clear case where the pleadings are so bad that it should be dismissed. The Plaintiff was given an opportunity by the Court to amend the statement of claim on 3rd September 2021. The Plaintiff filed an amended statement of claim without any improvement to the pleadings. This application for dismissal was heard on 18th March 2022. Considering the serious consequences that was likely to flow from the application being upheld and bearing in mind the Plaintiff appearing in person, the Court adjourned the matter to 21st March2022 to allow the Plaintiff to consider his options. The Plaintiff was asked to get proper legal advice and representation. The Plaintiff advised the Court that he has family members who are lawyers, and he would consider those options. On 21st March 2022 when the Court resumed, the Plaintiff advised the Court that he has decided to continue the action in person, and he will not withdraw the proceedings. He submitted that if the Court was of the view that the pleadings are not sufficient, he asked for leave to amend. That was just an oral (casual) statement with no conviction nor urgency and no formal application. The Court pointed out to the Plaintiff the seriousness of the application and adjourned briefly giving time to the Plaintiff to consider his options. When the Court resumed, the Plaintiff maintained his position to continue the proceedings. It is not the Court’s duty to keep advising parties who appear in person as to how they should conduct their case in Court, although it can lend a helping hand from time to time. The primary duty of the Court is to adjudicate and to exercise its discretion to do justice in the circumstances of each case. In the present case the Court has given more than sufficient time to the Plaintiff to consider his options. The Court will therefore proceed to rule on the application.
  2. In conclusion I am of the view that the Plaintiffs statement of claim discloses no reasonable cause of action. Secondly, the Plaintiff lacks the legal capacity to maintain the proceedings on behalf of his Molage Clan in his representative capacity. The proceedings are therefore incompetent.
  3. For the foregoing reasons I will grant the Defendants’ application and dismiss the Plaintiff’s proceedings.

Interlocutory orders


  1. Although the ruling is made for dismissal of the Plaintiff’s proceeding, it is based on competency reasons and on an interlocutory ruling. The merits of the Plaintiff’s case are not determined. The Plaintiff or his clan members are at liberty to institute fresh or similar proceedings if they wish in the future.

Costs


  1. I will reserve a decision on costs until I hear from the parties.

Orders


44. The Court orders that:


  1. The Plaintiff’s Notice of Motion is dismissed.
  2. The 1st & 2nd Defendants application is upheld.
  3. The Plaintiff’s entire proceeding is dismissed.
  4. The court will hear parties on cost.
  5. Time be abridged.

_______________________________________________________________
Richard Maribu : Plaintiff in person
Vava Lawyers: Lawyer for the First Defendant
Solicitor General: Lawyer for the Second & Third Defendant

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