Missen v Schnaubelt [2025] PGNC 279; N11357 (4 July 2025)

N11357

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 75 OF 2025 (IECMS)

BETWEEN:
HON. SAMMY MISSEN, MPA DEPUTY GOVERNOR FOR NEW IRELAND PROVINCIAL GOVERNMENT
Plaintiff

AND:
HON. WALTER SCHNAUBELT, MP MEMBER FOR NAMATANAI OPEN
First Defendant

AND:
HON. IAN LING-STUCKEY, MP MEMBER FOR KAVIENG OPEN
Second Defendant

AND:
HON. GREG TOXY SETH, PRESIDENT - KAVIENG URBAN LLG
Third Defendant

AND:
HON. BEN SAKBUA, PRESIDENT - SENTRAL NIU AILAN LLG
Fourth Defendant

AND:
HON. JOSHUA SOI TAKIN, PRESIDENT - NAMATANAI LLG
Fifth Defendant

AND:
HON. AUGUSTINE TOPI, PRESIDENT - MATALAI LLG
Sixth Defendant

AND:
HON. ISAAC TOSEL, PRESIDENT - KONOAGIL LLG
Seventh Defendant

AND:
HON. ANDREW MINKIONG, PRESIDENT - LOVONGAI LLG
Eighth Defendant

AND:
AO URE, CLERK OF THE NEW IRELAND PROVINCIAL ASSEMBLY
Ninth Defendant

WAIGANI: COATES J
4 JULY 2025

DECLARATIONS – Sought to rescind election of Governor – Sought to suspend Members of Provincial Assembly – Sought to dismiss Clerk of Provincial Assembly – Mode of proceedings – Standing – Utility of Proceedings - Abuse of Process.

Cases cited
Patana v Dadi Toka (Jnr) (2025) N11248
State of PNG & Ors v Central Provincial Government (2009) SC977
Telekom PNG Limited v ICCC (2008) SC906
Ipara v Porgera Landowners Association SC1969
Greenwood (PNG) Limited v Pule Anu Timber Co Limited SC2361

Counsel
K Makeu for the plaintiff
T Elemi for the defendants

DECISION

1. BY THE COURT: The plaintiff, as Deputy Governor of New Ireland, seeks declarations and orders which would rescind the recent election as Governor of Mr Walter Schnaubelt, suspend eight members of the Provincial Assembly and dismiss the Assembly's Clerk.
   
2. The fundamental claim being made is that the election of Mr Schnaubelt, to replace Sir Julius Chan who died in January 2025, was unlawful and those associated with it have broken the law.
3. The election of Mr Schnaubelt as Governor took place on 28 March 2025.
   
4. The plaintiff seeks numerous declarations, injunctions and orders stated in his Originating Summons and Notice of Motion filed on 10 April 2025.
   
5. The defendants seek that the action be dismissed as showing no reasonable cause of action, for being frivolous or vexatious or for being an abuse of process (see Order 12 Rule 40), particularised as the plaintiff using the wrong mode of proceedings to bring the case to Court or having no standing.
   

CONTEXT

6. On his own evidence, the plaintiff states that upon the death of Sir Julius on 30 January 2025, he assumed the Governor's role of decision-making as well as the role of Chair of the Assembly.
   
7. On 10 April 2025, when he filed his application, the plaintiff occupied the position of Deputy Governor, a position he had held since 2019.
   
8. On 24 April 2025, the plaintiff's position as Deputy Governor ceased following the issue of Writs for the Local-Level Government elections, a factor having relevance according to the defendant.
   
9. In his sworn material, the plaintiff states that the Assembly meeting scheduled for 26 March 2025, where he assumed the role of Chair of the Assembly, was to elect a new Governor.
   
10. It is the Chair which controls daily proceedings and business of the Assembly.
    
11. He states there was only one contender for Governor, the first defendant here, Mr Schnaubelt, who had resigned his position as Minister for Transport and Aviation in the National Parliament on or about 24 March 2025.
    
12. He states that just before the election was conducted, Mr Schnaubelt, on a point of order, said there were four Strangers in the House who could not participate in the Assembly.
    
13. Strangers, as described by Erskine May in the Law, Privileges, Proceedings and Usage of Parliament, the text often quoted on parliamentary procedures, are individuals who are not members of parliament, or in this case, the New Ireland Assembly.
    
14. He named them as four Chief Representatives, being King Pawut, Patrick Toarbursai, Linson Aaron and Robin Kamkam.
    
15. Pursuant to the Organic Law on Provincial Governments and Local-Level Government, only the Minister for Provincial and Local-Level Government Affairs has power to appoint Chiefs to assemblies. The evidence disclosed that they had sat in the Assembly only on letters of appointment by Sir Julius.
    
16. The plaintiff then sought to adjourn the proceedings, including the election of the Governor, on the basis that all members had the right to vote, and he sought time to clarify the position of the chiefs.
    
17. Next day, on 27 March 2025 the plaintiff recalled the Assembly, stated the matter had to be clarified, and adjourned the Assembly until 9 July 2025.
    
18. Unbeknown to the plaintiff, and for whatever reason not apparent in the evidence, enquiries had begun into the Chiefs' positions, before the sitting of the Assembly on 26 March 2025.
    
19. By the 27 March 2025 the plaintiff became aware of correspondence to the Clerk of the Assembly and the Provincial Administrator, dated 25 March 2025, from the Ministerial Office, stating there was no record of the Minister having appointed the chiefs.
    
20. On learning this, the plaintiff did not make moves to recall the Assembly to hold the election of Governor.
    
21. On the following day, 28 March 2025, correspondence from the Minister for Provincial and Local-Level Government Affairs, Mr Soroi Marepo Eoe, dated the day before, was delivered to the plaintiff.
    
22. Among comments which the plaintiff claims have called his integrity and reputation into question, comments repeated in this matter by the plaintiff but having little relevance to the orders sought, the correspondence directed him to conduct the election of Governor forthwith.
    
23. The Minister's correspondence reminded the plaintiff of issues relevant to parliamentary procedure - that the Local-Level Government elections were being held from 24 April 2025 and that the Assembly had to have continuity of political leadership, and that his role was Acting Chairman of the Provincial Assembly, not Acting Provincial Governor.
    
24. The Minister also directed the Clerk and Provincial Administrator to liaise with the plaintiff for the immediate reconvening of the Assembly.
    
25. In interpreting that correspondence, I find it was by way of request to the plaintiff to perform his role to organise the election of the Governor.
    
26. The plaintiff on his own evidence did not act.
    
27. On 28 March 2025, the Clerk of the Assembly was directed by the Minister, in writing, to immediately convene the Assembly and hold the election.
    
28. Such was done, the defendants allegedly playing a role, and on that day, 28 March 2025, Mr Schnaubelt was elected as Governor unopposed.
    
29. On 10 April 2025, the plaintiff filed and served these proceedings naming the defendants as those who were present or who took part in the allegedly illegal events.
    

ORDERS SOUGHT

30. I will paraphrase the declarations and orders, 20 in total, that the plaintiff is seeking.
    
31. He seeks to have recognised as lawful the sittings of the Assembly to 27 March 2025, and that all events after were not justified, authorised or excused by law.
    
32. The particulars and possible results of the plaintiff's claims are as follows”
    
    1. The election of Mr Schnaubelt as Governor would be set aside;
    2. Mr Ling-Stuckey would be restrained from continuing as a member of the Assembly as his conduct in procuring the election was contrary to his duties and responsibilities under the Constitution (s.27);
    100. That restraining orders would be made preventing Mr Seth (third defendant), Mr Sakbua (fourth defendant) Mr Takin (fifth defendant), Mr Topi (sixth defendant), Mr Tosel (seventh defendant) and Mr Minkiong (eighth defendant) from sitting as members of the Assembly as they would be deemed to have vacated office under the Organic law (s.30(1)(d);
    4. That the Clerk of the Assembly, Mr Ure, would be dismissed for condoning, convening and participating in an illegally constituted Assembly;
    5. That the Registrar of the National Court would recommend to the Ombudsman Commission that Mr Ling-Stuckey be charged for breach of the Leadership Code;
    6. That his own (the plaintiff) actions would be declared to be lawful, and finally,
    7. That orders would be made preventing the defendants from representing themselves as members of the Assembly.
       
33. I have not referred to all of the particulars in each declaration or order sought, stating the main effect of the orders he seeks.
    
34. The plaintiff refers to various provisions within the Organic Law on Provincial Governments and Local-Level Governments, as does the Minister's letter directing the election of the Governor to go ahead, but there were no useful references to how the law is to be applied to the facts sought, during submissions.
    

THE COMPETITING CASES

35. This matter was adjourned on 5 June 2025 as the plaintiff had indicated that instructions may have changed, however on 11 June 2025 there were no new instructions, so I proceeded to determine the defendants' Notice of Motion to dismiss the matter.
    
36. As to mode of proceeding being incorrectly utilised by the plaintiff, the defendants say the matter is clearly in the nature of a judicial review and an Originating Summons is not the method under the rules, as the declarations and stays are prerogative orders, only available under Order 16 of the National Court Rules.
    
37. A perusal of the rules under Order 16 confirm that writs of a prerogative nature follow the requirements of the rule, and that is because orders sought challenge the decisions of public bodies by examining the decision-making process. Such orders are supervisory in nature and are very different to orders which seek to determine a controversy between parties, or which involve a right or which involve some tangible interest.
    
38. The plaintiff dismisses the concerns of the defendants by resorting to arguments that he had a choice as to how he would begin proceedings, and while he refers to various cases confirming his arguments, what he does not do is give explanation as to why his orders, sought to control the election process of the Provincial Government, are available as though the dispute were some type of commercial matter.
    
39. He rejects the notion that he is seeking prerogative writs and is seeking, merely, declarations and consequential orders and consequential injunctions, referring to Telekom PNG Limited v ICCC (2008) SC906.
    
40. In that matter, Injia DCJ explained the difference in these terms:
    

"38. In my view," at the time the proceedings in WS 1599 of 2006 were instituted, due to the circumstances prevailing at that time, it was open to Telikom to seek declaratory orders and injunctions by Writ of Summons. Its claim arose out of the regulatory contract and actions taken by ICCC pursuant to an alleged variation of clause 10. It was not a case of ICCC exercising decision-making powers of the kind conferred by statute on administrative appeals or review tribunals, which are to be more appropriately challenged by orders in the nature of prerogative writs. In my opinion, subject to the express provisions of statute which precludes resort to Court action first, challenges to actions taken by a public authority under a public contract of a commercial or business nature such as the regulatory contract in this case, it is open for an aggrieved person to commence proceedings by Writ of Summons seeking declaratory relief and injunction. I agree with Mr Webb that the trial judge misapprehended the Supreme Court's decisionCourt'shael Gene's case as nGene'slowing its decision in NEC & Lucas case. This misapprehension led to the erroneous finding that the only appropriate mode of instituting proceedings open to Telikom in the circumstances was by way of judicial review. I am of the view that the Court erred in dismissing the claim on that basis".

41. The plaintiff did not refer to this passage for meaning, he simply referred the Court to it. In other words, he does not directly answer the claim that what he seeks are prerogative orders, or the proper legal basis for the orders he seeks.
    
42. What was required was properly based legal argument on the mode of commencement of proceedings and identification of the actual dispute.
    
43. The plaintiff referred to Independent State of PNG & Ors v Central Provincial Government (2009) SC 977 where factors apparent to bring proceedings were stated, being, 1) There must exist a controversy between the parties, 2) The proceedings must involve a right. 3) The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order. 4) The controversy must be subject to the Court's jurisdiccourt's) The defendant must be a person having a proper or tangible interest in opposing the plaintiff's claiplaintiff'sssue must be a real one. Quoting such decisions is not helpful unless the Court can perceive what it means to the case. The plaintiff failed to identify how the Court would have power to make the orders he sought.
    
44. Again, referring to these factors was mechanical, without application of the law to the facts. In my view, while his view is that he seeks mere injunctions, what he seeks is to interfere with the working of an elected assembly and to do so on the facts he presents, the orders are in the nature of prerogative writs.
    
45. It appears that the discretion to grant injunctions, which both parties confirm, also allow the Court to determine a matter such as this where prerogative type orders are sought, but the matter is filed under the wrong rule.
    
46. On the basis that the matter should be determined, as far as can be, on merits, does not prevent the Court from allowing a matter brought under the wrong rules when necessary, but is not encouragement for sloppy procedures being adopted by practitioners, but an indication that the Court will resolve disputes where it can.
    
47. As to mode to commencing proceedings then, I would not dismiss the matter on that basis, even though the orders sought are definitely prerogative in nature.
    

STANDING

48. The defendants combine lack of standing with events overtaking the proceeding.
    
49. They argue that the proceeding was filed under his title as Deputy Governor, and he ceased holding that position when the Writs for the Local-Level Government elections were issued on 24 April 2025.
    
50. The loss of that title was confirmed by the plaintiff's counplaintiff'sll, a new Deputy Governor had been elected.
    
51. Further, if re-elected, the plaintiff is not guaranteed the position of Deputy Governor, that being a position to be elected at the conclusion of the general election.
    
52. I was referred to Ipara v Porgera Landowners Association SC1969 and Greenwood (PNG) Limited v Pule Anu Timber Co Limited SC2361 affirming that position, confirming that where a party's standing disappears, matters should be dismissed as an abuse of process.
    
53. On this issue, submissions confirm that the plaintiff bought this matter to Court as Deputy Governor, as reflected on the identification page of the Originating Summons and within his own affidavit.
    
54. The plaintiff's submplaintiff's paragraph 22 state: "The plaintiff c "early has standing to bring this proceeding by virtue of him being the Deputy Governor for New Ireland Provincial Government and as the Chairman of the New Ireland Provincial Assembly"
    
55. There was no "ubmission from either party as to why the fact that the plaintiff being the Deputy Governor was the condition precedent to give him standing to file the matter.
    
56. The plaintiff seems to rely on his position as Deputy Governor from the point of view that he was also the Chair of the Assembly and adjourned the matter for proper investigation of the status of the four chiefs after he had set the day for the election of the new Governor. The Writ for the election do not return until August.
    
57. He also wanted a ruling that Members of the Assembly elected pursuant to the Organic Law on Provincial Governments and Local Level Governments hold office for a period commencing from the date of their election to the return of writs for the general election. He referred to Patana v Dadi Toka (Jnr) (2025) N11248.
    
58. What counsel for the plaintiff did not refer me to was the fact that the decision by Makail J in Patana was under the Motu Koita Assembly Act 2007 and he did not raise the equivalent section in legislation affecting the plaintiff's posiplaintiff's
    
59. The issue of standing varies in response to the circumstances.
    
60. The litigant must have an interest in the outcome of proceedings, which takes into account the circumstances and facts of a case.
    
61. The essential position being put forward by the plaintiff is that he rightfully adjourned the Assembly proceedings until the position of the four Chiefs was determined, so that their appointment could be investigated, as all members had a right to vote.
    
62. On its face, that argument appears correct. There was very little submission on his standing other than to say that as he no longer held the position of Deputy Governor, then he could not sustain the proceedings.
    
63. But the argument is flawed.
    
64. The real position must be that any interested party, being a member of the Assembly, not necessarily a holder of Office within the Assembly, is free to bring to Court any matter where there is a real question to be determined.
    
65. I would not dismiss the mater on this ground.
    

ABUSE OF PROCESS

66. However, other factors are apparent.
    
67. A matter before the Court has to involve a real question.
    
68. I will refer back to State of PNG & Ors v Central Provincial Government (2009) SC977 as stated above, and reiterate the factors addressed there, being: 1) There must exist a controversy between the parties, 2) The proceedings must involve a right. 3) The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order. 4) The controversy must be subject to the Court's jurisdiction. 5) The defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim, 6) The issue must be a real one.
    
69. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.
    
70. Assuming that the plaintiff meets requirements 1 to 5, what is a real question.
    
71. Such will depend on the circumstances, including, sometimes, whether all forms of redress have been attempted.
    
72. Here, we go back to the facts.
    
73. At a time very soon after the plaintiff adjourned the sitting to elect a governor for two and a half months, he became aware that there was no evidence that the chiefs had ever been properly appointed, given the correspondence referred to in evidence.
    
74. At that time, as Chair of the Assembly, as pointed out by the Minister in the correspondence directed to him, the plaintiff did not recall the Assembly to conduct the vote for the only applicant for position of Governor with those people properly appointed as members of the Assembly, but instead took umbrage at the correspondence from the Minister.
    
75. The Minister's correspondence of 27 March 2025 stated, among other things, that he had failed to adhere to the mandatory requirements of the organic law, including his failure to organise the Provincial Assembly elections for the Provincial Governor and that he had failed to uphold Section 21 (1) of the Organic Law and a New Ireland Provincial Assembly Standing Orders, and such constituted a breakdown in administration and the failure to apply relevant laws as they apply to the province.
    
76. The plaintiff did not address these allegations in submissions as to how I should treat them.
    
77. Coinciding with his acts or omissions, while the plaintiff claims that the Governor must be elected, the State Solicitor's advice as contained in correspondence dated 26 March 2025 to Mr Ian Ling-Stuckey, Minister for Treasury, states:
    

"... the New Ireland Provincial Assembly standing orders dictate that in such a circumstance, the new Provincial Governor shall be appointed by way of ballot voting. In the current circumstance however, there is only two members of the Provincial Assembly who are members of parliament (Hon Ian Ling-Stuckey, MP and Hon Walter Schnaubelt, MP). Given that Hon Ian Ling-Stuckey is not contesting, by virtue of the organic law Hon Walter Schnaubelt, may be appointed as the new Provincial Governor for New Ireland Province. I wish to further note here that in the event of any inconsistency with any other law, the provisions of the OLPGLL [Organic Law on Provincial Governments and Local Level Governments] prevail".

78. If the plaintiff was not aware of this advice, as Chair of the Assembly he had a duty to make himself aware of legal advice and such could have been done had he addressed the terms of the request by the Minister to hold the election. Having said that, I do not know whether he became aware of that advice.
    
79. He then filed these proceedings in his role as Deputy Governor, merely to justify the steps he took, ignoring the steps he did not take when aware that the four chiefs appointments could not be supported by any evidence from the Minister's Office
    
80. The Plaintiff gives no sworn evidence as to why he did not take steps to convene the Assembly after receiving the request from the Minister and proceed with the important process of electing a new Governor.
    
81. What then he actually seeks are orders justifying his prevarication, dressed as numerous claims of illegal activity.
    
82. While I would not necessarily dismiss the matter on the ground of no standing because he now does not occupy the position of the Deputy Governor, because all members of the Assembly have an interest in the workings of the Assembly, that is not the end of the matter.
    
83. While the plaintiff claims that the acts which saw the election of Mr Schnaubelt were illegal and all the defendants took part in such activity, it appears each may have a perfectly good defence that they followed legal advice and directions from the Minister, so in effect, they may well be the wrong parties to sue.
    
84. I do not have to decide that, because the plaintiff was entitled and obliged to question what has occurred, but within the political process, before bringing such a matter to Court.
    
85. That the Minister requested him to act and then directed the Administrator to direct the Clerk of the Assembly to act are matters which the plaintiff should have put back to the Minister, awaiting his answers to any questions pertaining to the illegality of the procedure the Minister adopted.
    
86. The plaintiff has brought to Court then an ill-prepared case, so incomplete that the defendants here could not possibly answer for their actions when further steps were necessarily to be taken by the plaintiff.
    
87. He has not addressed the legislation the Minister says he acted upon, but merely states that the Organic Law and the Standing Orders require what he says they require.
    
88. What he is asking for then, without involving the Minister, is akin to an opinion from the Court. The circumstances do not entitle the Court to give such opinions. There is no utility in the proceedings.
    
89. What the plaintiff needed to do was not only seek further information from the Minister, but also to seek decisions on the floor of the Assembly, and it is apparent that the raising of the issue of strangers being in the House by Mr Schnaubelt was doing just that – seeking a decision which the Assembly was well qualified to make.
    
90. All of the issues the plaintiff raises in his material are really questions he could raise within the Assembly, however, he did not do so, but made a decision to adjourn the mater for two and a half months.
    
91. That deprived the Assembly of the forum to determine the concerns raised by the plaintiff.
    
92. On that basis, as the plaintiff has not done all that he must do to determine the matters he has brought before the Court, including directing proper enquiry to the Minister and having proper debate within the Assembly, the matter is an abuse of the Court's process.
    
93. The New Ireland Provincial Assembly is to be taken as being capable of resolving all of the issues of concern to the plaintiff, but it must be given opportunity to do so.
    
94. I will also state that I have grave concerns about the Court's ability to make many of the orders sought, declaring the election of the Governor null and void or illegal, suspending members of the Assembly, dismissing the Clerk or being the conduit for complaints to the Ombudsman.
    
95. The plaintiff has not done enough when faced with a Notice of Motion to dismiss the matter to satisfy the Court he has a reasonable cause of action.
    
96. I then dismiss the matter pursuant to Order 12 Rule 40 of the National Court Rules, as an abuse of process.
    

ORDERS

1. The Originating Summons and Notice of Motion filed by the plaintiff on 10 April 2025 is dismissed as having no reasonable cause of action, is frivolous or vexatious and as an abuse of the process of the Court pursuant to Order 12 Rule 40 of the National Court Rules.
   
2. The plaintiff pay the Defendants costs as agreed or as taxed.
   

Judgement accordingly
________________________________________________________________
Lawyers for the plaintiff: Makeu & Associates Lawyers
Lawyers for the defendants: Elemi Lawyers