Ondalane v Eoe [2024] PGNC 206; N10872 (1 July 2024)

N10872

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 53 OF 2023

BETWEEN:
JOHN ONDALANE as appointed representative of Porgera Landowners Association to PORGERA LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
First Plaintiff

AND:
FREDERICK IPARA as appointed representative of Porgera Landowners Association to PORGERA LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Second Plaintiff

AND:
HON, SOROI EOE, MP as MINISTER FOR INTER-GOVERNMENT RELATIONS
First Defendant

AND:
DEPARTMENT OF PROVINCIAL & LOCAL-LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
ANAKO AIYALA, DAVID MAPULI and MOSES PEARA as Nominees of Paiela-Hewa and Porgera Local-Level Governments to PORGERA LOCAL-LEVEL SPECIAL PURPOSES AUTHORITY
Fourth Defendant

AND:
NIXON MANGAPE, HENRY LARA, MARK EKEPA AND ELIZABETH LAPE as representatives of Porgera Landowners Association to PORGERA LOCAL-LEVEL SPECIAL PURPOSES AUTHORITY
Fifth Defendants

Waigani: Purdon-Sully J
2024: 13^th March, 3^rd April, 1^st July

PRACTICE & PROCEDURE – JUDICIAL REVIEW – substantive hearing – Special Purpose Authority – appointment of members – landowners’ representation – preliminary question as to whether plaintiff has standing to make application – no standing – application dismissed.
LAWYERS - Professional conduct – Failing to attend Court for further hearing – Breach of Professional Conduct Rules – Professional Conduct Rules ss 3(a)(iii), (iv), 3(b), 3(c), 4(b), 20(1) – Costs thrown away on adjourned date – Indemnity Costs

Cases Cited:
Papua New Guinea Cases

Hamaka v Dion [2016] PGNC 60; N6249
Ekepa v Napele [2020] PGNC 349; N8564
Ipara v Porgera Landowners Association [2020] PGSC 61; SC1969
Ondalane v Kulara [2022] PGNC 471; N9988
Akiko v Ekepa [2022] PGSC 10; SC2203 (2 March 2022)
Akiko v Ekepa [2023] PGSC 90; SC2442 (21 August 2023)
Ondalane & Lare v Ekepa & Ors; Akiko & Napele v Ekepa & Ors; Ondalane & Menepa v Mineral Resources Authority & Ors; Sakiko v Napele v Mangape & Ors; Ondalane & Ors v Mineral Resources Authority & Ors [2023] PGSC 171; SC2519
Mondiai v Wawoi Guavi Timber Co Ltd [2007] PGNC 23; N3120
Mamum Investments Pty Ltd v Ponda [1995] PGSC 15; [1995] PNGLR 1
PNG Air Pilots Association v Director of Civil Aviation [1983] PNGLR 1
Sir Julius Chan & 1 Or v. Hon. Walter D Schnaubelt & 1 Or (2018) SC1700
Kapinias v O & G Niugini Ltd [2018] PGNC 375; N7517
Raka v Tohichem [2000] PNGLR 328

Overseas Cases
R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493

Legislation:
Local Level Government Administration Act 1997
Professional Conduct Rules 1989, ss 3(a)(iii), (iv), 3(b), 3(c), 4(b), 20(1)

Counsel:
P Harry, for the First Plaintiff
No appearance for the Second Plaintiff
R Uware, for the First, Second and Third Defendants
P N Mawa, for the Fourth Defendants
J Nandape, for Fifth Defendants

DECISION

1 July 2024

1. PURDON-SULLY J: This is a substantive application for judicial review made pursuant to a Notice of Motion filed 17 October 2023 pursuant to leave to apply for judicial review granted on 16 October 2023.
   
2. The decision sought to be reviewed is a decision of the First Defendant in the Instrument of Appointment dated 23 November 2022 (Decision) which endorsed the Fourth and Fifth Defendants as members of the Porgera Local-Level Government Special Purposes Authority (PLLGSPA), commonly known as the Porgera Development Authority (PDA).
   
3. The First Plaintiff challenges the decision to appoint the Fourth and Fifth Defendants to the PDA on a number of grounds which can conveniently be considered under the following headings as detailed in the First Plaintiff’s Extract of Submissions filed 13 February 2024:
   
   1. Want of jurisdiction (at [3] to [6])
   2. Unlawful by reason of breach of various court orders (at [7] to [8])
   100. Failure to take into account a relevant consideration (at [9])
   4. Unlawful endorsement of “fraudsters ... who have scandalised the Court by getting themselves reappointed” in breach of a court order ([10] to [11]).
      
4. The First Plaintiff seeks the following orders:
   
   1. A Declaration that the Instrument of Appointment signed by Minister for Inter-Government Relations Hon Soroi Eoe MP on 23 November 2023 had breached section 8(1)(e) of the Constitution of the Authority, Term 1 of the court order of Kandakasi DCJ dated 29 November 2021 in OS (JR) No 152 of 2021, and Term 3 of the court order by Linge AJ dated 10 May 2022 in OS No 127 of 2021 which had declared the appointment of the Fourth Defendants unlawful, invalid and of no effect and therefore the Minster’s decision was unlawful, invalid and of no effect.
      
   2. A Declaration that the Instrument of Appointment signed by the Minister on 23 November 2023 which had endorsed Messrs Mapuli and Aiyala as members of the Authority was unlawful, invalid and of no effect given that both men were not educationally qualified pursuant to section 8(1)(e) of the Constitution of the Authority to be appointed. They had committed perjury, forgery and uttering by deposing to false statements under oath and had produced fake Grade 12 and Grade 10 Certificates in support which the Measurement Services division of the Department of Education have been officially verified to be altered and are not true copies of the original.
      
   100. A Declaration that the Instrument of Appointment signed by the Minister on 23 November 2023 which had endorsed the Fourth Defendants as members of the Authority was unlawful, invalid and of no effect given the fact that it contemptuously interfered with the administration of justice in appeal SCM No 65 of 2021 when the subject of the Fourth Defendants’ appointment was pending determination and sub-judice and precluded them from being reappointed and endorsed.
        
   4. A Declaration that the Instrument of Appointment signed by the Minister on 23 November 2023 which had endorsed the Fifth Defendants as members of the Authority had breached Kandakasi DCJ’s court order dated 10 August 2022 in proceeding OS No 124 of 2022 and in contempt of the Supreme Court Appeals SCA Nos 66, 96, 131, 139 of 2021 and SCA No 7 of 2022, where the appointment of members of the Association which was in dispute was pending determination and was sub judice and therefore the Minister’s decision was invalid and of no legal effect.
      
   5. An order in the nature of Certiorari to bring up and quash the decision by the Minister made in Instrument of Appointment dated 23 November 2022 which endorsed the Fourth and Fifth Defendants as members of the Authority.
      
   6. A Consequential Order that any subsequent decisions made by the Fourth and Fifth Defendants as purported members of the Authority dated 23 November 2023 be deemed unlawful, invalid and void and of no legal effect.
      
   7. Costs of the proceedings on a solicitor-client basis.
      
5. The First, Second, Third, Fourth and Fifth Defendants seek the dismissal of the First Plaintiff’s application for judicial review with costs.
   
6. Each of the Defendants, however, raise a preliminary issue as to the Plaintiffs’ standing which will be considered first.
   
7. For the reasons given hereunder the application for review is dismissed with the Plaintiffs to pay the costs of all Defendants on a solicitor/client basis to be agreed or taxed save for the costs of the hearing on 3 April 2024 where the order shall be that the First Plaintiff pay the costs of the Fourth and Fifth Defendants on an indemnity basis.
   

CONTEXTUAL BACKGROUND

8. The history of this dispute is complicated, spanning six (6) years^[1] between the same or similar parties. It has on the evidence, and at the time of the substantive hearing, involved seven separate National Court proceedings and eight Supreme Court appeals, a number of those appeals consolidated. It has involved nomination and counter nomination as members of the relevant authority, ministerial endorsement and counter endorsement of nominees to the relevant authority and challenges and cross-challenges to appointments by a revolving door of sub-clan agents and/or others asserting authority relating to a Special Mining Lease, some twenty-five (25) customary landowner sub-clans lawfully entitled to benefits derived from the Porgera Special Mining Lease area for the Porgera Gold Mine.
   
9. In attempting to wade through and make sense of the evidence, the court, respectively, accepts the descriptor in an earlier detailed judgment of this court, of the problematic level of dysfunction in evidence, the protagonists’ dispute in a myriad of forms having played out in the course of a long and arduous history of litigation and, as the learned Judge noted with some prescience, it being “....inevitable that more litigation is likely to come” (Ekepa v Napele [2020] PGNC 349; N8564 at [118]).
   
10. A more fulsome account of the background facts and court history can be found in the evidence relied upon by the parties, the parties’ written submissions and the published decisions referred to in submissions and/or on the evidence in:
    
    1. Hamaka v Dion [2016] PGNC 60; N6249
    2. Ekepa v Napele [2020] PGNC 349; N8564
    100. Ipara v Porgera Landowners Association [2020)] PGSC 61; SC1969
    4. Ondalane v Kulara [2022] PGNC 471; N9988
    5. Akiko v Ekepa [2022] PGSC 10; SC2203 (2 March 2022)
    6. Akiko v Ekepa [2023] PGSC 90; SC2442 (21 August 2023)
    7. Ondalane & Lare v Ekepa & Ors; Akiko & Napele v Ekepa & Ors; Ondalane & Menepa v Mineral Resources Authority & Ors; Sakiko v Napele v Mangape & Ors; Ondalane & Ors v Mineral Resources Authority & Ors [2023] PGSC 171; SC2519.
       
11. For present purposes however, the following background will suffice providing context to the issues before the court.
    
12. By National Executive Council decision, the National Government made a policy to establish Special Purpose Authorities in major research project areas to work alongside and in partnership with Local-level Governments (LLGs) in a given locality to implement key Government development policies. The primary purpose of the Authority is to manage and expend funds derived from resource projects for various projects identified by the Authority. The idea is to take responsibility away from the Provincial Government and place it in the hands of a body with landowner participation in the management and control of funds (Hamaka v Dion [2016] PGNC 60; N6249 at [2]).
    
13. Based on policy decision and Part VII, s 42 (1) of the Local Level Government Administration Act 1997 (Administration Act) the Head of State issued a Proclamation for the legal framework of the Authority. Each Authority was to be governed by a Constitution which established a Management Committee which comprised appointed members.
    
14. In the present case the PLLGSPA was established pursuant to s 42(1) of the Administration Act for the Porgera District Administrative Area in Lagaip-Porgera Electorate.
    
15. The PLLGSPA came into operation on the date of signing by the Head of State of the Proclamation on 12 November 1998.
    
16. Clause Q of the Proclamation provided that the PLLGSPA can also be referred to as the PDA, which is how the PLLGSPA will be referred to in these Reasons.
    
17. The PDA is governed by its Constitution which regulates appointments, composition, and its operation. The PDA must comply with the provisions of the Administration Act, its Constitution and the Proclamation.
    
18. Section 4.2 of the PDA Constitution established a Management Committee for the PDA (Committee), also provided for in Clause 1 of the Proclamation, with the Committee to comprise 11 members made up of:
    
    1. Two (2) persons appointed by the Porgera Rural Local Level Government (Porgera LLG);
    2. Two (2) persons appointed by the Paiela Hewa Rural Local Level Government (Paiela Hewa LLG);
    100. Four (4) persons appointed by the Porgera Landowners Association Inc (PLOA);
    4. Two (2) persons with special skills appointed by the PLOA;
    5. Porgera District Administrator as an ex officio member;
    6. One person appointed by the Developer as an ex officio member; and
    7. One person appointed by the Department of Finance as an ex officio member.
       
19. The PLOA was incorporated as an association under the Associations Incorporation Act Chapter 142 on 17 November 1992. Each of the 25 sub-clans has a Land Negotiating Committee agent who is a voting member of the PLOA and is termed a “financial member” of the Association.
    
20. Section 5(1) of the Constitution provides that the term of the nominees of the two LLGs and the PLOA shall be three (3) years whilst s 5(2) of the Constitution states that the terms of the ex-officio members shall be at the discretion of their appointing authorities.
    
21. At all material times:
    
    1. The Plaintiffs held themselves out as two (2) of the nominees of the PLOA to the Committee of the PDA, challenging the appointment of the Fourth and Fifth Defendants and placing reliance on a Ministerial Determination dated 6 July 2022 by the then Minister for Inter-Government Relations, Hon Westley Nukundj endorsing the appointment of the Plaintiffs and their colleagues as members of the PDA.
       
    2. The First Defendant was the National Minister responsible at the relevant time for Inter-Government Relations which included Local-level Government matters who made the Decision on 23 November 2022 which endorsed the Fourth and Fifth Defendants as members of the PDA.
       
    100. The Second Defendant was the relevant Department responsible for local-level government affairs.
         
    4. The Third Defendant was the Independent State of Papua New Guinea.
       
    5. The Fourth Defendants were the nominees of the two rural LLGs to the Committee of the PDA.
       
    6. The Fifth Defendants were the nominees of the PLOA to the Committee of the PDA.
       

DOES THE FIRST PLAINTIFF HAVE STANDING TO INVOKE THE POWERS OF JUDICIAL REVIEW?

22. The matter proceeded to a full day substantive hearing on 13 March 2024. The Second Plaintiff did not participate in the substantive hearing. The submissions on the preliminary issue were taken first. After hearing the oral submissions of Counsel for the Defendants, because of the lateness of the hour and at the request of Counsel for the First Plaintiff, the matter was adjourned to 3 April 2024 at 9.30am to take oral submissions on behalf of the First Plaintiff. On the adjourned day there was no appearance for the First Plaintiff. Nor thereafter was an application filed to seek the court’s leave to relist the matter to enable the First Plaintiff to be heard. In the circumstances the court may infer that no further submissions are sought to be made on behalf of the First Plaintiff.
    
23. While the written submissions filed on behalf of the First Plaintiff do not specifically address the issue of standing, it is clear from those submissions, the pleadings and the sworn evidence relied upon that the First Plaintiff views that he has a sufficient interest to bring the proceedings. For example, the First Plaintiff deposes at [2] and [4] of his affidavit filed 5 June 2023 as follows:
    
    2. I am a duly appointed representative of the Porgera Landowners Association (the “Association”) to the Porgera Local-Leval Government Special Purposes Authority (the “Authority”) and as such am authorized to depose to the contents of my affidavit in support herein.
       
    3. I was at all material times the Chairman of the Authority until my appointment was abruptly revoked by the Minister for Inter-Governmental Relations, Hon Soroi Eoi.
       
    4. On 16 July 2018, the Association during its Annual General Meeting held at the Crown Hotel in Port Moresby appointed Messrs Pelly Punch, Frederick Ipara, Smith Elias Ipaia and myself as the Association’s representatives to the Authority pursuant to Clause 4(2)(b) and (c) of the Constitution of the Authority.
       
24. Further, the Statement of the First Plaintiff, made pursuant to Order 16 Rule 3(2)(a) of the National Court Rules, states inter alia:
    

1.1 The First and Second Plaintiffs are the duly appointed representatives of the Porgera Landowners Association (the ‘Association’) to the Porgera Local-level Government Special Purposes Authority (the ‘Authority’) Management Committee who was endorsed by the Minister for Inter-Government Relations Hon Westley Nukundj in Instrument of Appointment dated 6 July 2022.

1.2 The appointment of the Plaintiffs to the Authority was affirmed by Kandakasi DCJ in term 4 of Court Order dated 29 November 2021 in the proceeding OS (JR) No 152 of 2021 and later by Linge AJ in Court Order dated 10 May 2022 in the proceeding OS No 127 of 2021.

1.3 The First and Second Plaintiffs held the positions as Chairman and Deputy Chairman respectively at the time when their appointment was revoked by the First Defendant in the second Instrument of Appointment dated 23 November 2023.

25. It is submitted on behalf of the First, Second and Third Defendants that the Plaintiffs place reliance on a Ministerial determination of 6 July 2022 in asserting that they were being appointed members of the PDA. However, that Determination provided that the appointment shall take “... effect on and upon the date of swearing in and signing of the Oath of Office by each of them.” Since the appointment relies on the assumption of office by way of swearing in and signing the Oath of Office and given the undisputed fact that the Plaintiffs were never sworn in or signed the Oath of Office, that failure in itself is fatal to the Plaintiffs standing.
    
26. It is submitted on behalf of the Fourth Defendant that the First Plaintiff does not have a sufficient interest or standing to challenge the decision because:
    
    1. On 10 May 2022 the National Court in proceedings OS No 127 of 2021 (Ondalane v Kulara [2002] PGNC 471; N9988) allowed the Plaintiffs to continue to remain as members of the Committee to perform their duties until their appointment was revoked or replaced by the PLOA. On 26 August 2022 that occurred, the PLOA, as the appointing authority responsible for appointing four members to the committee, appointing the Fifth Defendants thereby replacing the Plaintiffs, a decision later endorsed by the First Defendant Minister on 23 November 2022 with the Fourth and Fifth Defendants then sworn in on 1 December 2022 and the full members of the Committee published in the National Gazette on 22 November 2022.
       
    2. The endorsement by the Minister for Inter-Governmental Relations, Hon Westley Nukundj in Instrument of Appointment dated 6 July 2022 of the First and Second Plaintiffs as duly appointed representatives of the Porgera Landowners Association to the PDA was invalid because the reappointment of the Plaintiffs on 2 December 2020 by Ruben Nalepe and his team was done without lawful authority and mandate. Their authority and mandate had expired or been extinguished in 2019 when the old Special Mining Lease had expired and they had been later voted out by their respective clans, a finding made by the Supreme Court in its ruling of 23 August 2023 in Akiko v Ekepa [2023] PGSC 90; SC2442. In consequence, the endorsement of the Plaintiffs nomination by the Minister on 6 July 2022 did not have any foundation as the Plaintiffs had been reappointed by executive officers of PLOA who lacked authority and mandate at the material time.
       
    100. The First Plaintiff should have challenged the decision of the appointing authority on 26 August 2022, not the endorsement decision of 23 November 2022, the 25 SML LNC Agents who constitute the PLOA appointing on 26 August 2022 their four (4) nominees to the Committee of the PDA.
         
27. It is submitted on behalf of the Fifth Defendants that the Plaintiffs have no standing because:
    
    1. The Plaintiffs failure to be sworn in and sign the oath of office is fatal to their nominee status.
       
    2. There is no resolution by the PLOA authorizing the Plaintiffs to commence these proceedings in their official capacity, the subject matter of the proceeding the decision which endorsed the Fourth and Fifth Defendants as nominees of the rural LLG’s and PLOA respectively to the Board and the Board not a party to the proceeding.
       
    100. The Plaintiffs have no standing to challenge the appointment of the Fourth Defendants to the Board and as such are busy bodies where their appointment is not in dispute by any of the other contestants to the LLG nominees.
         

LEGAL PRINCIPLES

28. To go to court a person must have standing (locus standi) to challenge a decision in a court of law.
    
29. In judicial review proceedings the question of standing is relevant at the leave and substantive stages. The fact that leave may have been granted for judicial review does not prohibit the court from considering the question at the substantive stage.
    
30. Whether a person has standing is a question of both fact and law having regard to all the circumstances of the case (R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617).
    
31. A person will have standing if he demonstrates a “sufficient interest in the matter to which the application relates” (Mondiai v Wawoi Guavi Timber Co Ltd [2007] PGNC 23; N3120 at [21]).
    

CONSIDERATION

32. In considering the arguments advanced on the preliminary question of standing it is necessary to consider the appointment process to the Committee of the PDA.
    
33. Section 4 of the Constitution of the PDA provides for the membership of the Committee.
    
34. Section 4(2) details the appointing authorities.
    
35. Section 4(4) provides that notification of the appointees shall be in writing to the Minister by the appointing authorities.
    
36. Section 4(3)(a) provides that the members shall be qualified for appointment in terms of the requirements under section 8(1).
    
37. Section 8(1) provides:
    

(1) To be eligible for appointment as a member (other than ex officio appointment of the Manager under section 4(5), a person –

(a) shall be eighteen years or older;

(b) shall not be an officer or employee of the Authority;

(c) shall not be a member of the National Parliament, the Provincial Assembly or of any Local-level Government;

(d) shall not have any record of conviction by imprisonment for a term or terms by death;

(e) persons appointed under Section 4 (a) and (c) shall possess educational qualifications minimum of Grade 12 and above or Grade 10 with five years work experience in the Public Service or any other recognised institution; and

(f) all persons appointed under Section 4 (a), (b) and (c) shall be of Porgera origin.

38. Section 4(3)(b) provides that the members of the PDA shall have their names published by notice in the prescribed form on the Notice Board by the Minister following notification in accordance with the procedures in Sub-section (4) to him and her.
    
39. By virtue of the appointment process the process begins by the appointing authorities appointing their nominees and submitting those names to the Minister. However, that does not mean the appointments take effect immediately. The Minister has a discretion to appoint or not appoint the names put forward. If he formally recognises and endorses the appointment, and after compliance with the conditions set out in the Instrument of Appointment, it is then published on the Notice Board in the prescribed form. Publication concludes the appointment process.
    
40. The prescribed form as referred to in the Constitution is the Ministerial Instrument of Appointment.
    
41. The Notice Board where the Ministerial Instrument of Appointment is published is defined in the interpretation section of section 1 of Part 1 the Constitution as follows:
    

“the Notice Board” means the official notice board placed outside the office of the Porgera Local-level Government Special Purposes Authority which may be in accordance with the regulations

42. Clauses L and M of the Proclamation mandate that the PDA shall provide advice to the Minister as the PDA may consider necessary.
    
43. Clause L provides:
    
    50. the Porgera Local-level Government Special Purposes Authority shall advise the Minister responsible for mining matters on any matter concerning responsibilities of the National Government effecting (sic) the Special Mining Lease and the Special Mining Lease Landowners Association that the Authority or the Minister may consider necessary; and
        
44. Clause M provides:
    
    13. the Porgera Local-Level Government Special Purposes Authority shall advise the Minister responsible for provincial government and local-level government matters on all other matters that the Authority or the Minister may consider necessary; and
        
45. Clauses O and P of the Proclamation provide that the Minister has unfettered discretion to make decisions affecting the operations of the PDA and any decision made by the Minister based on his discretion is final.
    
46. As noted earlier, the Statement of Support filed 5 June 2023 stated at [1.1]:
    

The First and Second Plaintiffs are the duly appointed representatives of the Porgera Landowners Association (the “Association”) to the Porgera Local-Level Government Special Purposes Authority (the “Authority”) Management Committee who were endorsed by the Minister for Inter-Governmental Relations, Hon Westley Nukundj in Instrument of Appointment dated 6 July 2022

47. At [1.2] of the Statement the Plaintiffs further states:
    

The appointment of the Plaintiffs to the Authority was affirmed by Kandakasi DCJ in term 4 of Court Order dated 29 November 2021 in the proceeding OS (JR) No 152 of 2021 and later by Linge AJ in Court Order dated 10^th May 2022 in the proceeding OS No 127 of 2021.

48. The court accepts the submission on behalf of the Fifth Defendant that the statement at [1.2] aforesaid is factually incorrect as the decision of the Minister appointing the Plaintiffs was 26 July 2022, the two court orders referred to predating their appointment.
    
49. The court concludes that there are three reasons why the Plaintiffs lack standing, each in and of itself fatal to the application for judicial review.
    
50. Firstly, by virtue of his statement the First Plaintiff relies upon the appointment as contained in the Ministerial Instrument dated 6 July 2022 being ‘Annexure JO9’ to his Affidavit filed 5 June 2023. That determination, in noting the appointment of the Plaintiffs and two other nominees of the PLOA to the Committee, goes on to state as follows:
    

I, Westley Nukundi Nukunji, MP, Minister for Inter-Governmental Relations, by virtue of the powers conferred on me under Section 45(4) of Local Level Government Administration Act 1997 and all other powers enabling, in accordance with the constitution of the Porgera Special Purpose Authority; Section 4; HEREBY duly recognise as being duly appointed, and whose names shall be placed on the Notice Board, members of the Management Committee of the said Authority whose names appear in column 1 to represent the interests of the group specified in column 2 and appointed under the provisions of the constitution of the said Authority in Column 3 of the Schedule below with effect on and from the date of the swearing of Oath of Office by each of them.

[Emphasis added]

51. It is not contested that the First Plaintiff was not sworn in and did not take the oath of office. Nor is there evidence that his name was published on the Notice Boad as required by the Constitution. It was a concession made by Counsel for the First Plaintiff at the substantive hearing.
    
52. Nor is there evidence that Second Plaintiff was sworn in and took the oath of office.
    
53. The reasons for that not occurring are, for present purposes, irrelevant. What is relevant is that the swearing in and signing of the oath of office was a necessary step in the appointment process. It did not happen. The Plaintiffs, consequently, cannot hold themselves out as the appointed representatives of the PLOA because the formalities with respect to their appointment were never concluded. The endorsement of the Minister did not take effect, their appointments on 6 July 2022 incomplete, the appointment now overtaken by the later appointments made by the relevant Minister which were completed.
    
54. In contrast, the Fourth and Fifth Defendants were sworn in and they signed their oath of office. That evidence, unchallenged, is found at [26]-[27] of the affidavit of Mark Ekepa filed 27 June 2023 wherein he deposes inter alia to:
    
    1. the confirmation of his appointment and that of Nixon Magape as the nominees and representatives of the PLOA to the Committee pursuant to s 4(2)(b) of the Constitution of the PDA and Elizabeth Lape and Henry Lara as the nominees and representatives of the PLOA to the Committee pursuant to s 4(2)(c) of the Constitution, that confirmation dated 26 August 2022 and on the letterhead of PLOA signed by the Deputy Chairman of the Meeting and the Public Officer and Minute Taker under seal of the PLOA.
       
    2. a swearing in ceremony thereafter taking place at the Heritage Cafe Gordons on 1 December 2022 conducted by the Senior Provincial Magistrate, Alex Kalandi with photographs purporting to be of the swearing-in event.
       
55. Secondly, neither Plaintiff has demonstrated sufficient authority to commence the judicial review proceedings. There is no evidence that they sue in their personal capacities but as the duly appointed representatives of the PLOA to the Committee (see [2] of the First Plaintiff’s affidavit filed 5 June 2023 and the Statement of Support filed 5 June 2023 at [1.1]). There is no evidence that the First Plaintiff was authorised to challenge the Decision of the First Defendant and thus claim the relief sought in the form of certiorari or a right to declaratory relief in respect of the asserted violations as particularised. There is no resolution in evidence authorising either Plaintiff to commence proceedings in any official capacity and no evidence that the First Plaintiff was authorized by the PLOA, on his deposition, to dispose to the contents of his affidavit.
    
56. The PLOA is not a party to the proceedings and no steps have been taken by the PLOA, as the purported nominating authority, to either challenge the Decision or the failure of the Department of Provincial and Local-level Government Affairs to swear in their nominees.
    
57. Nor have the two other nominees appointed at the same time as the Plaintiffs sought to challenge the Decision. Lawyers for the Second Plaintiff filed a Notice of Ceasing to Act on 4 March 2024 and, as earlier noted, the Second Plaintiff did not participate at the substantive hearing.
    
58. Thirdly, in Mamum Investments Pty Ltd v Ponda [1995] PGSC 15; [1995] PNGLR 1, Kapi DCJ and Injia J (as they then were), cited with approval an observation in relation to standing made by Mason J (as he then was) in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 at 547 to the effect that, depending on the nature of the relief sought, a plaintiff will in general have standing when he can show an actual or apprehended injury or damage to his personal or property rights, to his business, economic or social interests (see also PNG Air Pilots Association v Director of Civil Aviation [1983] PNGLR 1 at [3]; Sir Julius Chan & 1 Or v. Hon. Walter D Schnaubelt & 1 Or (2018) SC1700 at [16] and Kapinias v O & G Niugini Ltd [2018] PGNC 375; N7517 at [9]).
    
59. The First Plaintiff leads no evidence to this effect and none can be imputed. In a lengthy affidavit of some 77 paragraphs and 32 exhibits, other than assert breach of court orders and the appointments of the Fourth and Fifth Defendants amounting to a serious abuse that interfered with the administration of justice, the First Plaintiff adduces no persuasive evidence of actual or apprehended injury or damage to his rights or interests.
    
60. The complaints of breach of court orders do not advance matters on the issue for determination in these proceedings because:
    
    1. With respect to the asserted breach of the order of Kandakasi DCJ of 29 November 2021 in OS (JR) 152 of 2021 the Plaintiffs were not parties to those proceedings. The orders involved different plaintiffs who were aggrieved parties not considered for appointment by the two LLGs. The Fourth Defendants submit inter alia that the orders were made, ex parte, in the absence of the Fourth Defendants being heard including on contentious issues such as educational qualification not fully ventilated at a trial. Relevantly, the instrument the subject of the ruling was one made on 11 June 2021 and the orders related to it and subsequent decisions emanating therefrom. There was no restraint in the orders on the Fourth Defendants being reconsidered as proper nominees. The order did not restrict the PLOA or the validated 25 Special Mining Lease agents from performing their functions following the court sanctioned validation exercise that occurred in 2021. Nor did the orders permanently restrain the Fourth Defendants from being reconsidered as proper nominees by their appointing authorities to the Committee in any future appointments or the appointing authorities from renominating the Fourth Defendants to the Committee. The restrictions placed on the PLOA Bank account must be viewed in the context of the outcome of the consolidated Supreme Court appeals on 29 December 2023 which inter alia determined that the appellants’ various rights had been extinguished as a result of the old special mining lease coming to an end in 2019. The finding, then, at [25] of the judgment of Linge AJ in Ondalane v Kulara [2002] PGNC 471; N9988 (OS No 127 of 2021) that the factual and legal issues had been found to be in favour of the plaintiffs in OS (JR) 152 of 2021 must, accordingly, be viewed in context and against the matters identified.
       
    2. With respect to the asserted breach of the order of Kandakasi J of 10 August 2022 in proceedings OS No 124 of 2022, save for the State, none of the parties in the current proceedings were parties to the order. The Court accepts the submission on behalf of the Fifth Defendants that all that order did was stay the National Court proceedings pending the hearing of appeals and restrain the use of a bank account pending the outcome of the appeals. It did not restrain the PLOA from holding meetings, from otherwise conducting its business or the newly appointed members from holding themselves out as such.
       
    100. With respect to the asserted breach of the order of the Supreme Court of 2 June 2022 in appeal SCA No 7 of 2022 the court accepts the further submission on behalf of the Fifth Defendants, that the order was a mere joinder order.
         
61. Finally, with respect to the orders of Linge AJ of 10 May 2022 entered on 12 May 2022 that arose from that judgment in OS No 127 of 2021, relevantly, Order 4 provided as follows:

.......

4. The Plaintiffs are allowed to perform their duties and responsibilities of Porgera Local level Government Special Purpose Authority until and unless replaced by their appointing authorities.

......

[Emphasis added]

62. The First and Second Plaintiffs in these proceedings, who were also the plaintiffs in OS No 127 of 2021, were replaced on 26 August 2022 when the PLOA, as the appointing authority, appointed the Fifth Defendants. The Fourth and Fifth Defendants were then sworn in on 1 December 2022.
    
63. In the circumstances, the First Plaintiff does not demonstrate an actual or apprehended injury or damage to his personal or property rights, business, economic or social interests where:
    
    1. At best for the Plaintiffs, as order 4 of the orders of Linge AJ of 10 May 2022 makes clear, the Plaintiffs were permitted to continue their duties as members of the PDA only until replaced;
       
    2. At worst for the Plaintiffs, their appointment as nominees by the Minister dated 6 July 2022 was invalid as submitted on behalf of the Fourth Defendants, by reason of their reappointment on 2 December 2020 by Ruben Nalepe and others having been undertaken without lawful authority, neither Mr Napele or Mr Akiko holding at the relevant time their positions as either sub-clan agent or executive member of the PLOA (see Akiko v Ekepa [2023] PGSC 90; SC2442 at [6], [7], [22] – [27]).
       
    100. Neither Plaintiff had a right to challenge the appointment of the Fourth Defendants, who had their own appointing authority (the Porgera Rural LLG and the Paiela-Hewa LLG), their appointments not in contest and where the First Plaintiff presents with no genuine grievance or personal interest in the subject matter in the proceedings against the Fourth Defendants and thus no ‘meritorious interest to gain access into the courts’ with regard to them (Modiai (supra) at [15]; Raka v Tohichem [2000] PNGLR 328).
         

CONCLUSION AND ORDERS

64. For these reasons the evidence does not permit a finding that either Plaintiff has satisfied the requisite test in terms of standing. In the circumstances the application for judicial review should be dismissed.
    
65. The First Plaintiff and the Fourth Defendant seek that any costs be paid on a solicitor- client basis, with no submissions made by the other parties as to the type of costs to be awarded. The First and/or the Second Plaintiff should pay the Defendants costs on a solicitor-client basis, save for the costs of 3 April 2024, with the First Plaintiff to pay the costs thrown away on that day on an indemnity basis. Save for the costs order of 3 April 2024 the costs order should be made in respect to both Plaintiffs. The Second Plaintiff’s failure to engage at the substantive hearing does not cocoon him from a costs order. However, for the purpose of clarity, the costs order made against the Plaintiffs applies to each without apportionment between them meaning the costs can be sought by the Defendants against either the First or Second Plaintiff or both.
    
66. With respect to the indemnity costs order, as noted earlier, on 3 April 2024 there was no appearance on behalf of the First Plaintiff, the matter having been adjourned to that date with the concurrence of and in the presence of the lawyer for the First Plaintiff to enable oral submissions to be taken on behalf of his client. The lawyers for the Fourth and Fifth Defendants were present on 3 April. Their time was wasted by the non-appearance of the lawyer for the First Plaintiff. The court’s time was wasted with no explanation sought to be advanced thereafter of a reason for the non-attendance notwithstanding the lawyer for the First Plaintiff remaining on the court record to this date. Further, I note that the lawyer for the First Plaintiff has appeared before me since the 3 April 2024.
    
67. It states the obvious that it is disrespectful to the court and fellow colleagues when lawyers, who are officers of the court, do not attend court hearings without proper explanation. Aside from good manners, as an officer of the court, a lawyer has an overriding duty to the court, to the standards of his or her profession and to the public at large in assisting the court in its important work. These matters find voice in the Professional Conduct Rules (see for example sections 3(a)(iii), (iv), 3(b), 3(c), 4(b), 20(1)). It does not assist the efficient and proper administration of justice if lawyers turn up late or not at all, here, on a date agreed between the parties and the court when further time was allocated to benefit the First Plaintiff. That time could have been allocated to another deserving matter.
    
68. I am satisfied that the circumstances present as exceptional calling for the rare order of indemnity costs against the First Plaintiff. It will be a matter for the First Plaintiff and his lawyer to sort out between them who should ultimately bear that cost, the court not privy to the circumstances of the non-attendance and, in the circumstances of the First Plaintiff’s earlier failure to appear, not minded to adjourn the matter again to take further submissions on the matter.
    
69. The court makes the following orders:
    
    1. The Notice of Motion for judicial review filed 17 October 2023 be dismissed.
    2. Save as provided, the First and/or Second Plaintiff pay the costs of each of the Defendants on a solicitor and client basis to be agreed or taxed.
    3. The First Plaintiff pay the costs thrown away of each of the Fourth and Fifth Defendants on an indemnity basis for their appearance on 3 April 2024.

4. Time to abridge.

________________________________________________________________
Harry Lawyers: Lawyers for the First Plaintiff
Second Plaintiff: No Appearance
Office of the Solicitor General: Lawyers for the First, Second and Third Defendants
Mawa Lawyers: Lawyers for the Fourth Defendants
Nandape & Associates Lawyers: Lawyers for Fifth Defendants

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^[1] On the evidence of Mr Tony Ekepa there have been numerous other court proceedings since 2014