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Independent State of Papua New Guinea v National Lands Commission [2023] PGNC 334; N10494 (5 October 2023)

N10494

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 671, 673, 675, 676, 677, 707, 708, 709, 711 OF 2014


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Applicant


V


NATIONAL LANDS COMMISSION
First Defendant


And
NATHANIEL MARUM SITTING AS THE COMMISSIONER NATIONAL LAND COMMISSION
Second Defendant


And
DOUBLE U SQUARE CONSULTANCY SERVICES LTD
Third Defendant


And
THADEUS KAMBANEI SECRETARY FOR DEPARTMENT OF FINANCE
Fourth Defendant


Waigani: Miviri J
2023: 04th & 5th October


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application To Set Aside Judgement Entered – Order 12 Rule 8 NCR – Judgement Entered – No Jurisdiction – Supreme Court Judgement Determining Appeal Subject of Motion – Dismissal of Motion – Costs Follow Event On Indemnity Basis Against Counsel Personally.


Cases Cited:
Independent State of Papua New Guinea v National Lands Commission [2023] PGNC 120; N10239
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Pruaitch v Manek [2019] PGSC 123; SC1884
Wani v The State [1979] PNGLR 593
Wanu, The State v [1977] PNGLR 152
Barry v Luma [2017] PGSC 42; SC1639
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015


Counsel:
G. Kaore, for Applicant
L. Kandi, for Respondents


RULING

05th October 2023

  1. MIVIRI, J: This is a notice of motion dated the 28th June 2023 filed of the 07th July 2023 by Kaore Lawyers of Portion 286 Granville (Koki) Hiri Street P. O. Box 71 Port Moresby in the following terms:

“Take Notice that the Respondents will move the Court on the 07th Day of August 2023 at 9.30am for the following orders: -

(1) That the Court Orders granted on the 28th of April 2023 be set aside pursuant to Order 12 Rule 8 of the National Court Rules and the matter be listed for inter parte hearing of the Substantive.

(2) Costs in the cause.

(3) Any other orders the Court deems fit.
  1. He relies on Order 12 Rule 8 of the National Court Rules which is in the following terms:

8. Setting aside or varying judgement or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

(2) The Court may, on terms, set aside or vary a judgement—

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order—

(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.

  1. The language of this Rule does not assist the jurisdiction of the Court to hear and determine the application of Counsel for the Respondents. Because here Judgment was entered since the 28th April 2023. This is a motion that was filed of the 07th July 2023. Two months had since lapsed when Judgement was delivered and entered. And the motion has been moved in Court now 04th October 2023 three months since filing in total six months since the 28th April 2023. It cannot be seen as before entry of the Judgment. Counsel has stated on the record of the proceedings of practising law for thirty-one (31) years and by that fact is well acquainted with knowledge and prudence of a lawyer given. And that experience no doubt would have schooled him that moving by motion as he has done here will not secure given the specific language relevant that is underlined above in bold of the Order relied. In fact, he has on record admitted that Judgement was entered in his clients favour at K 2.8million down from the initial K 3million. So, for all intent and purposes it is not a matter that can be the subject of a notice of motion pursuant to Order 12 Rule 8 it has been concluded in law Judgement entered.
  2. His option is to take the matter up to the Supreme Court if he is not satisfied with what has happened in the National Court. And that is the essence of the Notice of Motion that he has now moved. It effectively seeks to vary the orders that were entered in that Judgement which is published as Independent State of Papua New Guinea v National Lands Commission [2023] PGNC 120; N10239 (28 April 2023). Clearly that is not attainable in Law because an appeal to the Supreme Court is the only way up against. Even then, forty (40) days has lapsed and the period to appeal has since expired.
  3. As if this is not enough, he has gone onto file of the 07th July 2023 an affidavit in support of the motion sworn by one William Wandaki of Tokarara which he has endorsed as Commissioner of Oaths. Relevantly at Paragraph 4 contrary to his own admission on record set out above, he commissions this deponent to swear, “4 The tax review proceedings has been dormant for a period of 15 years, when initially the review was only between ourselves and the State but after the decision was made we realized that Lawyers who were paid already were also included and it is quiet obvious that many were not served these proceedings.
  4. 5 The action of the applicants Lawyers were completely unreasonable and evasively intended to have these matter heard ex-parte just to make sure that they get the result that they wanted while many of us have forgotten the matter since completing the matter filed in 2006.
  5. 6 The last time we received a copy of the letter advising about the hearing was this year but when we attended the matter was adjourned due to unavailability of a judge, however, when the next hearing date was allocated, we were never told of any hearing notice and the Applicants easily got what they intended to get easily without any problem.
  6. 7 Attendance of the Court records in the years have shown that we have been attending the hearing until the applicants have decided to make these a secret affair to proceed in all the lawyer’s absence.
  7. 8 Paul Kande was a lawyer who acted in conflict of interest and continue to sabotage our payment that caused the prolonged delay in setting our costs as he was acting for the respondents during the review of all these matters in 2004.
  8. Sworn before me at Port Moresby signed George Kaore Commissioner of Oaths”.
  9. This is an affidavit commissioned by the Counsel George Kaore Lawyer of 31 years’ experience and practise, which is misleading and is filled with lies and deceit when compared with the findings and the determination of the Judgement N10239 (supra). The intent is no doubt to mislead these proceedings and this Court of that fact and its determinations there. It is overt and squares on professional misconduct when the affidavit by Dake Rhem sworn of the 29th September 2023, filed of the 2nd October 2023 is considered. He is a lawyer of the firm M.S. Wagambie Lawyers who deposes that “on the 11th September 2023 at or about 9.35am, I served on George Kaore, in person, the lawyer in carriage of the matter on behalf of Double Square Consultancy Services Ltd (third Respondent), the letter dated 04th September, 2023 that urged him to withdraw the Notice of motion filed 07th July, 2023, failing which will result in our client seeking costs of and incidental to the application against him, personally, on an indemnity basis.
  10. The letter was accepted and received from my hand by the said George Kaore who signed the letter as proof of service, on him, at the National Court Waigani, National Capital District. Annexed hereto and marked with the letters “A” and “B” are the copies of the forewarning letter dated 04th September 2023 and the Court Attendance notes.”
  11. That is clear forewarning to the Counsel to withdraw the subject notice of motion now moved because it amounted to blatant gross abuse of the due process of the Court. And that costs will be sought if pursued on an indemnity basis against the lawyer, George Kaore, and his client. That is clearly evidenced further in court when appearances were made of the 11th September 2023 and adjourned from that by this Court to the 18th September 2023, annexure “B”.
  12. It is an abuse of process within the meaning set out in Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008) reiterated affirmed in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019), when multiple proceedings are instituted not with a sense of Justice but to procrastinate and intimidate the other side, appreciating knowing very well that what is sought out is not open in law, nor would it follow to the account of the applicant. It is really an abuse of process and is particularly serious and grave against counsel George Kaore of Kaore Lawyers as the aggregate is that it amounts to professional misconduct where the intent is manifest that of misleading this Court by untruths and deceit, clearly bolded out by the Judgements at first instance and that above setting abuse of process. It is even grave when forewarning has been forecasted to withdraw the subject proceedings now evident as abuse of process because of the all the reasons set out above. Knowingly participating in an illegal unlawful conduct is an aider and abettor within the meaning of section 7, and 8 of the Criminal Code. And if the Lawyer with the Client are to be referred to the Police for appropriate actions under the criminal code both will be together intertwined as principal offenders within the meaning of that code: Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979). He is an accomplice to the offence Wanu, The State v [1977] PGNC 44; [1977] PNGLR 152 (25 May 1977). That was the recommendation of the Judgement N10239 (supra). It would now include not only William Wandaki but also Counsel George Kaore of Kaore Lawyers. The initial Judgement and this will now be the subject of referral to the Police for their discretion in law against evidence warranting.
  13. It becomes beyond all reasonable doubt where it is screened against the backdrop of Barry v Luma [2017] PGSC 42; SC1639 (3 November 2017) which in no uncertain terms answers that, “The ex-parte order dismissing the National Court proceedings for disclosing no reasonable cause of action is a final order and cannot be set aside by way of notice of motion made pursuant to Order 12 Rule 8 of the National Court Rules.” George Kaore was the lawyer on record in that proceeding. He received that Judgement and is now the author counsel of this current proceedings intent on rehashing the same again before this Court knowing very well that the law does not allow. He is clearly by this Court seriously tried to mislead the Court. And if it is the instructions of his client both have seriously tried to mislead the Court. It is a serious conduct and amounts to professional misconduct as a lawyer for which he will be referred with recommendations to the Law Society to be dealt with.
  14. The observations of this Court in N10239 (supra) sum against the applicant and counsel George Kaore, the matter has dragged and procrastinated from that original decision from 30th November 2006 up to today Friday 28th April 2023. Particularly in the light also of the fact that review was filed 20th and 21st March 2012. And if it was as bad as it has been put here in the various amounts that have been claimed taxed and certified, why wait this long if Government, State funds are paid out in this way. If the office of the Solicitor General was vigilant and alert, it would not have dragged on as it did up to now. Especially where allegation of impropriety going to border on the criminal offence of misappropriation has been raised against, the Registry officers involved as taxing Officers, joining hands with Lawyers and a consultant. It reflects badly on the action by the State to stamp out and bring to Justice this illegal activity. Primarily moneys of the State getting out of the public purse into hands prima facie not by compliance of the law. And here where moneys have exchanged hands between State and Claimant, it is another page to retrieve that money back into the public purse. With the costs of the engagement of counsel to that effect and the drawing on judicial time to bring out. Piecemeal approach has delayed Justice clocking up the expense delaying service to the State. As of today’s date, 28th April 2023, this action will be almost 17 years old, lurking unresolved that public money has been used in this way by public officials under the guise of resolving a costs order. There ought to have been very determined urgency to see out a resolution, an end to this saga by the State.
  15. Part of the contributing factor is in the way materials were placed before the Court to move the matter. Because the Court is driven by the material before it on the matter pleaded. And this is set out in the supporting affidavit of Andrea B. Yauieb sworn of the 16th December 2019 filed of the 18th December 2019. She is a lawyer with the firm of MS Wagambie Lawyers engaged by the State as its Lawyers as far back as when this matter was in the Judicial review proceedings before this Court then. And from which She attests that at paragraph 3, “numerous bills of costs were filed by Individuals claiming to be landowners of Mt Hagen Town. Some of the purported bills of Costs were subjected to proper taxation, whilst in others, duplicated certificates of taxation had been issued to certain law firms and individuals, without being properly taxed.”
  16. And she continues at paragraph 4, “During taxation of some of the purported bills of costs, the State (‘Applicant’) raised objections that the Court Order as to Costs dated 01st December 2006 related to costs of and incidental to the Judicial Review proceedings only, and not the costs that were alleged to have been incurred by third Parties, service providers and so called “consultants” and “advisors” to the customary landowners in the National Land Commission proceedings, prior to the Judicial review action.” And rightly the taxing Officer referred to the National Court for clarification the order it made relating. And to which the Court clarified that, “only the costs incurred in the period between the commencement and to the end of the Judicial review proceedings, and not the period from the commencement of the National Land Commission proceedings up to and including the period of the Judicial review Proceedings.”
  17. Even this clarification of the 21st November 2007 a year after the order was made “flood gates were opened for opportunists claiming to have had customary land which now comprise Mt Hagen Town and law firms claiming to have acted for such individuals, to file dubious bills of costs for taxation whereupon the taxing Officer issued multiples of duplicated certificates of taxation,” paragraph 5 and 6 of the affidavit of Andrea B. Yauieb set out above. And particulars included that on the 16th March 2007, annexure “B”, to the affidavit Poro Lawyers rendered a taxable bill of costs to the Attorney General for endorsement and approval for payment in the matter of OS No. 708 of 2004, paragraph 8 of the affidavit of Andrea Yauieb.
  18. Paragraph 9, “ On the 25th July 2007, annexure “C”, Mawa Lawyers wrote to the taxing officer to reschedule taxation fixed for 25th July, 2007 with respect to taxation of Bills of Costs filed by the law firm in the matters of OS Nos 669, 673, 710, 711, and 719 of 2004” And on the 12th November 2007, annexure “D” a certificate of taxation was issued to George Kaore Lawyers for the taxed amount of K 38, 830.00 in the same matter of OS No. 708 of 2004. And on the 14th December 2007, annexure “E”, a certificate of taxation was issued to B.T. Gobu & Associate Lawyers for the taxed amount of K 51, 156.00 in the same matter of OS No. 708 of 2004, paragraph 11 to the subject affidavit.
  19. Prompting the Solicitor General, annexure “F”, paragraph 12 of the subject affidavit, on the 29th January 2008, to write to the Registrar of the National and the Supreme Court expressing serious concern on the conduct of the taxing officers in the issuance of questionable certificates of taxation. And on the 16th April 2008, annexure “G”, a certificate of taxation was issued to Nasil Lawyers for the taxed amount of K 108, 350.00 in the matter of OS No. 707 of 2004.
  20. On the 02nd June 2008, annexure “H”, John Poro Lawyers wrote to the taxing officer advising the same that the costs relating to OS Nos. 708, 667, 676, 707, and 709 had been paid by the State and files relating to these matters be closed. Poro Lawyers provided to the taxing Officer a copy of the Deed of Settlement executed between the parties in those proceedings namely, the State and the Customary landowners of Mt Hagen Town, relating to the payment and acceptance of the amount paid in satisfaction of the costs Order of 01st December 2004. Following on the 13th October 2008, annexure “I”, a certificate of taxation was issued to a Thomas Yaga c/- of Boma Lawyers for the taxed amount of K89, 480.00 in the same matter OS No. 708 of 2004, paragraph 15 of the affidavit Andrea B. Yauieb.
  21. And yet again paragraph 16 of the said affidavit above, “On the 14th November 2008, a certificate of taxation was issued to George Kaore Lawyers for the taxed amount of K 82, 523. 00 in the same matter of OS No. 708 of 2004 and, also similar and identical Certificates of Taxation in Matters OS Nos. 671, 675, 676 and 677 of 2004 issued to George Kaore Lawyers on the same date. Annexure “J” is the copy of that letter dated 29th September 2009 from George Kaore Lawyers and a sealed copy of the certificate of taxation filed of the 14th November 2008.
  22. And on the 04th December 2008, annexure “K”, yet another certificate of taxation was issued to Liosi Lawyers for the taxed amount of K 253, 913.00 in the same matter of OS No 708 of 2004, and similar and identical certificates of taxation issued on the same date to Liosi Lawyers in OS No. 646, 648, 673, 707, 714, 671 and 669 of 2004, per paragraph 17 of the affidavit of Andrea B. Yauieb. And at paragraph 18, “On 02nd October 2009, and subsequent other dates, certificates of taxation were issued to a William Wandaki of Double U Square Consultants Services Ltd for the taxed amount of K 80, 000.00 in the same matter of OS No. 708 of 2004 and issued identical Certificates of taxation for the taxed amount of K 80, 000.00 each, in the matters of OS Nos. 673, 675, 676, 677, 678, 707, 709 and 711 of 2004. Annexure “L” is the letter from Double U Square Consultants Ltd confirming this fact.
  23. On the 09th November 2009, annexure “M”, the Solicitor General wrote to the Registrar of the National and the Supreme Court, raising serious concern over the conduct of the Taxing Officers with respect to the taxation of the Alleged Bills of Costs filed following the Court order. And on the 29th August 2011, annexure “N” one of the customary Landowners of Mt Hagen Town wrote to the Solicitor General advising that a William Wandaki of Double U Square Consultants Services Ltd was paid his service fees for helping him and his tribesmen in the National Land Commission proceedings. But he was not entitled to the payment in those proceedings. There is no secrecy in the way this Court determined this matter. There is no conspiracy in the way this Court determined the matter. The lawyer will personally meet this innuendo by the Costs that have drawn on judicial time and the other side into court.
  24. Costs are against Parties immediately before the Court who may pay naturally for what they have brought about or be penalized for their conduct leading to and in what they have done in the proceedings: Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010). Which has relevantly stated, “The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.” It is apparent here that the conduct of the Lawyer George Kaore is clearly within that described because of the reasons set out above. He has procrastinated the matter unnecessarily and instituted these proceedings clear pronouncement by the Supreme Court in Barry (supra). He has by his conduct lied and disrespected both this Court and the Supreme Court evidence set out above. His conduct is blameworthy and deserving that he pays the Costs of this proceedings personally on an indemnity basis. It is further ordered that he will not take another case before this Court or any other Court without proof presented to this Court that the costs now ordered is paid and leave obtained pursuant.
  25. The aggregate and the formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

M S Wagambie Lawyers: Lawyers for the Respondents

Kaore Lawyers: Lawyers for Applicant

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