Akipe v Manau [2023] PGNC 381; N10516 (11 October 2023)

N10516

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 40 OF 2022

HARI JOHN AKIPE AS MEMBER & CHAIRMAN OF THE HALEPURA CLAN OF BLOCK 1715, ANGORE PDL8, DAWA SAYAPE
First Plaintiff

And
JOHN POI AS MEMBER OF & CHAIRMAN OF THE TOPE CLAN OF BLOCK 1715, ANGORE PDL8
Second Plaintiff
And
HIMIYA JULA AS MEMBER & CHAIRMAN OF THE JULUMA CLAN OF BLOCK 1715, ANGORE PDL8.
Third Plaintiff

And
PHILIP POKOPI AS MEMBER & CHAIRMAN OF THE TAPU YALO BLOCK 1715, ANGORE PDL8.
Fourth Plaintiff

And
PETER MONDORO
Fifth Plaintiff

V
DAVID MANAU AS SECRETARY OF THE DEPARTMENT OF PETROLEUM
First Defendant

And
HON KERENGA KUA AS MINISTER FOR PETROLEUM
Second Defendant
And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

And
DAVID HAYABE-AS MEMBER OF AND CHAIRMAN OF THE POLOPU CLAN OF BLOCK 1715, ANGORE PDL8
Fourth Defendant

And
PAI WASA AS MEMBER OF & CHAIRMAN OF THE PAI NANAI CLAN OF BLOCK 1715, ANGORE PDL 8
Fifth Defendant

Waigani: Miviri J
2023: 14^th September, 11^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Plaintiffs Application to Extend Time to Comply – Order 1 Rule 15 NCR – Fourth Defendant Application to Dismiss Proceedings – Order 16 Rule 13(13)(2)(a)(b)(i) NCR – Breach of Directional Court Orders – Evidentiary Basis – Material Relied Against Insufficient – Application to Extend Time To Comply Refused – Application to Dismiss Proceedings granted – Costs Follow Event.

Cases Cited:
Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490
Kalinoe v Kereme [2017] PGSC 26; SC1631
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
University of Papua New Guinea v Rosso [2021] PGNC 318; N9063
Yawari v Agiru [2008] PGSC 31; SC948

Counsel:
J. Nandape, for First to Fourth Plaintiffs
D. Kop, for Fifth Plaintiff.
M. Tumul, for Fourth Defendant
R. Uware, for the State Defendants

RULING

11^th October 2023

1. MIVIRI, J: This is the ruling of the court on two motions, firstly that of the fourth defendant of the 16^th August 2023, pursuant to Order 16 rule 13 (13) (2) (a) (b) (i) of the National Court Rules, for the dismissal of this proceedings on breach of directional Orders that were issued by this Court on the 05^th June 2023. Which orders are annexure “JN3” of the affidavit of Judy Nandape, lawyer for the first to the Fourth Plaintiffs sworn of the 28^th August 2023 filed of the 30^th August 2023. It is in the following terms:
   
   • (i) The plaintiffs shall file and serve all affidavits they intend to rely on by or before Monday 19^th June 2023.
     
   • (ii) The Defendants shall file and serve all affidavits they intend to rely on by or before Monday 03^rd July 2023.
     
   • (iii) Parties shall file relevant notices under the Evidence Act by or before Monday 10^th July 2023.
     
   • (iv) The first to the Fourth Plaintiffs shall compile the Review Book and serve it on the Fifth Plaintiff and the Defendants Lawyers for their consideration and certification by or before Monday 17^th July 2023.
     
   • (v) The fifth Plaintiff and the Defendant’s Lawyer shall return the Review Book, certified or otherwise, to the First to the Fourth Plaintiffs Lawyer by/before Monday 07^th August 2023.
     
   • (vi) The first to the Fourth Plaintiff’s Lawyer shall file and serve the Review Book on the Fifth Plaintiff and the Defendant’s Lawyer by/before Monday 14^th August 2023.
     
   • (vii) Matter Shall return for pre-trial conference on Monday 04^th September 2023 at 9.30am.”

7

2. These were consent orders obtained by the Consent of Ms Judy Nandape lawyer for the first to the fourth plaintiffs, Mr. Daniel Kop lawyer for the fifth plaintiffs, and Mr Russel Uware lawyer for the first second and third defendants tying down their respective clients to discharging the obligations accordingly. For the plaintiff term one (1) required that they filed and served affidavits that they intended to rely on by or before Monday 19^th June 2023. The affidavit of Judy Nandape sworn of the 28^th August 2023 states that affidavits have been filed by the parties in compliance with the Direction set out above. Term three (3) has been complied by the fifth Defendants of the 14^th July 2023. The first to the fourth plaintiffs have done so as of the 17^th August 2023. But not the third and fourth defendants.
   
3. She continues that, “As for compliance with terms 4, 5 and 6 of the Court Order, we did not prepare an index to the review book, but we are intending to file a further affidavit containing evidence on the current status of proceeding OS No. 546 of 2010 which is the case in which the original mediation orders were made. We therefore did not circulate the draft index to the Review Book and with being busy with other cases and my involvement as a member of the Board of the Southern Highlands Provincial Health Authority, I overlooked the deadlines.
   
4. Without a forewarning letter, the fourth defendant sent us an email annexure “JN4” on 16^th August 2023 in which was enclosed the motion to dismiss the proceeding together with the two-supporting affidavit.
   
5. I sought instructions from my clients and on 17^th August 2023, I wrote a 2 paged letter to Tumul Legal and the Lawyers for the other defendants and copies to lawyer for the fifth Plaintiff. Enclosed in the letter annexure “JN5” was a draft of the Index to the Review Book. In summary, I said the following in the letter;
   
   • (a) That the matter was scheduled for pretrial conference on 04^th September 2023 at 9.30am;
     
   • (b) That we would file our notice to rely on affidavit shortly and that any party who has not done yet can do so before 04^th September 2023;
     
   • (c) That a draft index to the review book annexure “JN6” was enclosed for their perusal and if they could get back to me with their comments by or before 21^st August 2023, I would compile and file the review book by 23^rd August 2023;
     
   • (d) As for Tumul Lawyers application to dismiss, our clients would pay for the cost should they withdraw the application.
     
6. I did not receive any response from the defendants so on 25^th August 2023, I sent a follow-up email with a view to compiling the review book. On the same day I received an email annexure “JN7” from Tumul Legal advising that they were seeking instructions from their client regarding our letter.
   
7. On 25^th August 2023, we received another email annexure “JN8” from Tumul Legal which attached to it their letter in response to our earlier Letter.
   
8. On 28^th August 2023 I responded to Tumul Legal’s Letter annexure “JN9” and soon thereafter prepared the application seeking extension of time.
   
9. My clients are not the only ones who have defaulted in the complying with the direction orders. Tumul Legal and their client have filed their client’s notice to rely on affidavit out of time. The first, second third and fifth defendants have completely failed to file their notice to rely on affidavit despite having filed affidavit evidence.
   
10. We have compiled the review book as per the draft index we circulated, and we are ready to file should the Court grant us leave to do so.”
    
11. This is the evidence in support of the Notice of Motion of the 30^th August 2023 which is pleaded in the following terms:
    
    • (1) That pursuant to Order 16 rule 13 (1) of the National Court Judicial Review (Amendment) Rules 2005, Order 1 Rule 15 of the National Court Rules, and the inherent powers of this Honourable Court;
      
      • (a) Time be extended and this Honourable Court accept the notice to rely on affidavit filed on 17^th August 2023 by the first to the fourth plaintiffs as being filed within time as provided for in term 4 of the Direction orders of 05^th June 2023;
        
      • (b) An Extension of time of fourteen (14) days be granted to the first to fourth plaintiffs to comply with terms 4 to 6 of the Direction orders of 05^th June 2023;
        
      • (c) Alternatively, and pursuant to order 16 rule 18 (8) (1) (a) of the National Court Judicial Review (Amendment) Rules 2005, this Honourable Court confirm the correctness of the review book as prepared by the lawyer for the first to the fourth plaintiffs and grant extension of time of five (5) working days to file and serve the review book on the other parties.
        
    • (2) That pursuant to order 16 Rule 18 (8)(1)(a) of the national Court Judicial Review Amendment rules 2005, the Notice to rely on affidavit filed by Tumul Lawyers on 14^th July 2023 be struck out from the Court for being non-compliant with term 3 of the Order of 05^th June 2023.
      
12. Examining Order 16 there is no Rule 18 (8) (1) (a) within because the last order thereunder is Order 16 Rule 15 Commencement of these rules. Which effect is that the pleading with reference to that order here does not accord the jurisdictional basis of the pleading. Accordingly pleading number two of the motion will not be accorded. It is by that fact of no consequence to the case of the first to the fourth plaintiff. The same befalls term 1 (c) and 2 of the Motion. They in likeness do not have the jurisdictional basis to be accorded what is pleaded there. They have no bearing and are without merit. They are by that fact dismissed forthwith.
    
13. The remaining Terms 1, (a), (b), and Order 16 rule 13 (1) of the National Court Judicial Review (Amendment) Rules 2005, Order 1 Rule 15 of the National Court Rules do not bear jurisdictional basis to be granted the applicants what is sought there. There is no National Court Judicial Review (Amendment) Rules 2005. Order 16 Rule 13 (1) is Judicial Review List maintained by the Registrar. It is not the jurisdictional basis for the notice of motion of the first to the Fourth Plaintiffs. It is not likened to Order 12 Rule 8 (3) where orders can be varied because a party has not been in attendance, in that the subject order has been obtained ex parte. That is not the thrust of Order 16 Rule 13 (1), because it does not give the form nor the jurisdiction upon to extend time given that there is apparent breach of the orders in the hands of the First to Fourth plaintiffs here. It merely speaks of the maintenance of a list kept by the Registrar in this track, Judicial review. And the fact that a notice to rely on an affidavit filed on 17^th August 2023 by the first to the fourth plaintiffs as being filled within time as provided for in term 4 of the direction orders of 05^th June 2023, is not jurisdictional basis under the rules to extend time for compliance of the orders of the 05^th June 2023. It remains as it is, a failure to comply with Court Orders directed. And will not improve the motion pleaded for the applicant plaintiffs.
    
14. Similarly, term 1 (b) of the motion does not have the jurisdictional basis for extension of terms 4 to 6 of the orders of the 06^th June 2023. The material set out above does not establish any basis for extension. There is no Order or Rule giving the jurisdiction to accord this pleading. It is without that elementary requirement in law and will not accord in favour of First to the fourth plaintiffs. It is a motion that is not with the jurisdictional basis either in the Rules of Court or the law. The aggregate is that the Notice of motion of the first to the fourth Plaintiffs set out above in total is dismissed as being without merit forthwith with Costs. Because varying a court order must have jurisdictional as well as the evidentiary basis to sustain, here extension sought in the time to comply: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010).
    
15. Here Order (i) obligates the plaintiff to fulfilling filing and serving of affidavits that they intend to rely on by or before the Monday 19^th June 2023. Like the other parties in the cause of action drawn obligated by that order, it is discharged if there are affidavits filed and served in accordance with that timeline drawn. For the defendants this is by Order (ii) so if any of defendants have not complied, they are in breach of that term. It means they cannot file and serve any affidavits after Monday 03^rd July 2023. Order (iii) is for the parties both Plaintiff as well as the defendants to file notices under the Evidence Act by Monday 10^th July 2023. If that has not eventuated by the parties by the date designated, it is a breach of that order, here by the plaintiffs as well as the defendants. In that affidavit Judy Nandape, lawyer for the First to the Fourth Plaintiffs, deposes that on the 05^th June 2023, she attended Court together with Mr. Daniel Kop and Mr. Russel Uware. And the case was mentioned in Court, and they informed the Court that it was for directions hearing. And they handed up in Court a copy of the direction’s orders that, “I had circulated to Parties. The Court endorsed the draft directions Orders. Sealed Copies had not been returned to us.” Parties have complied with terms 1 and 2 of the directions orders in that affidavit evidence have been filed. As for term 3 only the fifth Defendant has filed his notice to rely on affidavit dated 10^th July 2023. The first to the fourth plaintiffs have filed their notice to rely on affidavit dated 17^th August 2023.
    
16. As for compliance with terms 4, 5, and 6 “we did not prepare an index to the Review Book, but we were intending to file a further affidavit containing evidence on the current status of proceeding OS No. 546 of 2010 which is the case in which the original mediation orders were made. We therefore did not circulate the draft index to the review book and with being busy with other cases and my involvement as a member of the Board of the Southern Highlands Provincial Health Authority, I overlooked the deadlines. Without a forewarning letter, the fourth defendant sent us an email, annexure “JN4”on 16^th August 2023 in which was enclosed the motion to dismiss the proceeding together with the two supporting affidavit.
    
17. The first to the fourth Plaintiffs admit breach of the orders they had obtained. And do not place independent material evidencing what cases drew counsel away from this Order. And what times she travelled out of here to attend the subject meetings of the Southern Highlands Provincial Health Authority. There is no ticket butt or accommodation invoice paid for evidencing period absent so as not to oblige the subject orders. These proceedings were instituted by the first to the fourth plaintiffs by their notice of motion filed of the 25^th July 2022 where they contend:
    
    • (i) For an Order in the nature of a declaration that the decision of the second Defendant contained in Schedule 2 of National Gazette No. G232 to include the Polopu and Pai Nani Clans as Beneficiary clans for Angore Well Head Block 1715 is baseless and unlawful and therefore null and void.
      
    • (ii) An Order in the nature of a declaration that the decision of the Second Defendant contained in National Gazette No. G232 and especially the reference to “Angore Block 1766” in the first paragraph of the Ministerial Determination is contradictory and does not correspond with the balance of the paragraphs and schedules of the said Determination which refer to Angore Well Head Block 1715 and therefore an error on the face of the record.
      
    • (iii) An Order in the nature of a certiorari to bring into this Honourable Court the Ministerial Determination made by the Second Defendant contained in National Gazette No G232 and quash;
      
      • (a) Schedule 2 of the Decision especially the part that includes the Polopu and Pai Nanai Clans as beneficiary clans for Angore Well head Block 1715;
        
      • (b) The First paragraph of the Determination that makes reference to “Angore Block 1766”.
        
    • (iv) An Order in the nature of a mandamus directing the Second Defendant or his successor to issue a new Ministerial Determination for Angore Block 1715;
      
      • (a) Containing a Schedule 2 that names only the forty-nine (49) beneficiary clans identified and confirmed in the Mediated Agreement dated 11^th December 2015; and
        
      • (b) Replaces the reference to “Angore Block 1766” with “Angore Block 1715” in the first paragraph of the Ministerial Determination.
        
    • (v) Alternatively, the Mediated Agreement of 11^th December 2015 be referred to the National Court for the Completion of the Mediation process.
      
    • (vi) Costs of the Proceedings be paid by the third defendant.
      
    • (vii) Any other orders in the direction of the Court.”
      
18. Leave was granted by this Court for Judicial Review on the 22^nd July 2022. And the subject directional orders by consent set out above were endorsed by this Court on the 05^th June 2023. What is relevant in the affidavit is material to sway as to whether the orders have been complied with issued of the 05^th June 2023. It is not relevant to consider conduct that has come before this order set out in that affidavit of the 13^th December 2022 right up to the 05^th June 2023 when the orders were issued. What is pertinent to and relevant to the motion relied on is what has happened since that order issued. How has that order been complied with? For the first to the Fourth Plaintiffs as initiating this cause of action, it is material that the term 4, 5, and 6 of the directional orders of the 05^th June 2023 are complied with because the proceedings the subject of their substantive notice of motion will materialize. The index to and the Review book are material foundations of this proceedings without which the first to the fourth plaintiffs have failed. And it cannot be cured by the affidavit that Ms Nandape has filed particulars set out above. By the same I do not consider the breaches by the defendant’s material as they can live without it. It will not drive the cause of action. The cause of action is dependent on the Review book which has not been compiled and served by the date Monday 17^th July 2023 on the fifth plaintiff and the defendants. Who are to return it on the 07^th August 2023 with comments and endorsement. From which the first to the fourth Plaintiffs is to file and serve the review book on the fifth plaintiff and the defendants on Monday 14^th August 2023.
    
19. That affidavit confirms in material particulars the breach of the orders admitted by Ms Nandape. By itself it corroborates and evidences the assertion of the motion that fourth defendant pursuant to Order 16 rule 13 (13) (2) (a) of the National Court Rules, for the dismissal of this proceedings on breach of directional Orders has filed. It is very strong evidence that the Directional Orders of the 05^th June 2023 have been breached by the First to the fourth Plaintiffs in very material particulars essential to the initiation of this proceedings they have issued. They should have served on the 17^th July 2023 the compiled draft review book which has not been done evidenced set out above coupled with paragraph 4 of the affidavit relied by the fourth defendant of Moses Liu sworn and filed of the 16^th August 2023. In this regard is also the affidavits of David Hayabe sworn and filed also of the 16^th August 2023. And that of lawyer Mek Tumul sworn and filed of the 29th August 2023.
    
20. There is clear evidence emanating from the search of the Court file initiated by lawyer Moses Liu on the 15^th August 2023 that no review book had been filed by the first to the fourth Plaintiffs satisfying the order taken out subjected here. Permeating this motion for dismissal of the 16^th August 2023. Which was prompted by the admission of failure to comply with the orders by Ms Nandape set out above. And the proposition for her clients to pay the costs and allowing the matter to proceed to trial. There is really no explanation for the non-compliance of the orders, particularly terms 4 and 6 material to the action they have instituted. And this is not even there in the letter of the 17^th August 2023 by them.
    
21. Order 16 Rule 13 (13) (2) (a) with (b) (i) are relevantly the jurisdictional basis of the motion of the fourth defendants. It seeks to summarily dispose the proceedings for the failure of the first to the fourth plaintiffs to comply with the Court ordered directions of the 05^th June 2023. And the application is properly founded on that order. Because this is not the first time that this court has seen similar University of Papua New Guinea v Rosso [2021] PGNC 318; N9063 (13 August 2021) and Gumanch Muipulg Wampnga Ltd v Samson [2020] PGNC 267; N8490 (4 September 2020) suffered dismissal in similar terms as the present applied.
    
22. And here it is pertinent to point that the first to the fourth Plaintiffs has caused no reasonable explanation as to why they have not complied with the orders they obtained. It is not the same for the fourth defendant who has filed an affidavit on the 16^th August 2023 stating that his clan Polopu has been sought removal as beneficiary in the Angore PDL 8 Block 1715 by the first to the fourth Plaintiffs. He found out that he was left out so applied and was joined as fourth defendant. The PNG LNG Gas Agreement was signed on 22^nd May 2008 which is over 15 years now. In April 2014 Production started and the first shipment was delivered to Japan on 25^th May 2014 over 9 years now. This case was filed on the 13^th April 2022 a year going into two now. And money has been spent on it by the State and all others involved with mediation. Which continues to over escalate, and such a matter grave has brought no reasonable explanation from the first to the fourth plaintiffs. It begs their genuineness to the cause of action instituted. When orders of this Court are defied without reason. It would be trite to follow Kalinoe v Kereme [2017] PGSC 26; SC1631(3 November 2017) and Yawari v Agiru [2008] PGSC 31; SC948 (6 November 2008) in dismissing this cause of action for failure to comply with the orders of this Court of the 05^th June 2023. Accordingly, the motion of the fourth defendant is granted in full as pleaded this cause of action is dismissed forthwith pursuant to Order 16 Rule 13 (13) (2) (a) (b) (i) of the Rules of Court.
    
23. The formal orders of the Court are:
    
    • (i) The notice of motion of the First to the Fourth Plaintiffs of the 30^th August 2023 is dismissed as being with merit forthwith.
      
    • (ii) The notice of motion of the fourth Defendants of the 16^th August 2023 is granted in full as pleaded pursuant to Order 16 rule 13 (13) (2) (a) (b) (i) of the National Court Rules.
      
    • (iii) The entire proceedings are hereby dismissed forthwith for failure of the First to the Fourth Plaintiffs to comply with the orders of this Court of the 05^th June 2023.
      
    • (iv) The Costs of and incidental to these proceedings and this application will follow the event forthwith to be taxed if not agreed.

Orders Accordingly.

__________________________________________________________________

Nandape & Associate Lawyers: Lawyers for the First to Fourth Plaintiffs/Applicant

Toll Lawyers: Lawyers for Fifth Plaintiff

Tumul Legal: Lawyers for Fourth Defendant

Office of the Solicitor General: Lawyers for the First to Third Defendants