Miriori v Rio Tinto Ltd [2025] PGNC 354; N11498 (26 September 2025)

N11498

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 27 OF 2024 (COMM/IECMS)

MARTIN RONALD MIRIORI for himself and on behalf of the Class Members, including the Private Class Members listed in Schedule C
Plaintiff

V

RIO TINTO LIMITED
First Defendant

BOUGAINVILLE COPPER LIMITED
Second Defendant

WAIGANI: ANIS J
9, 10, 11 JUNE, 26 SEPTEMBER 2025

NOTICES OF MOTION – motions for dismissal or permanent stay of proceeding – Order 12 Rule 40(1)(a), (b) and (c), Order 10 Rule 9A(15)(1)(a)(2)(d) and (e), Order 10 Rule 9A(16), Order 10A (Commercial List) Rules 15 and 25, and Order 12 Rule 1 – National Court Rules – s. 155(4) – Constitution – Abuse of court process – consideration - ruling

PRACTICE AND PROCEDURE – Standing and representative capacity to sue on behalf of others - whether plaintiff has demonstrated sufficient standing and capacity to sue for others – consideration - ruling

PRACTICE AND PROCEDURE –meaning of the term ‘lawyer’ – whether the plaintiff’s lawyer which is a company that is based in Sydney, Australia falls within the definition of a ‘lawyer’ under s.33 of the Lawyers Act 1986 and related laws and rules including the National Court Rules – consideration – ruling

PRACTICE AND PROCEDURE – Champerty & Maintenance – whether the revision provisions which were incorporated under the English Criminal Law Act 1967 applied as part of the Common Law of England that was adopted immediately before Independence on 16 September 1975 – consideration - ruling

Cases cited:
Ted Taru and 1 Or v. Pacific MMI Insurance Ltd and Ors (2021) SC2098
John Numapo v. Nerrie Eliakim and Ors (2020) SC1965
Rus Mongogl v. MVIT [1985] PNGLR 300
Tigam Malewo v. Keith Faulkner (2009) SC960
Simon Mali v The State (2002) SC690
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001
Malewo v. Faulkner (2009) SC960
Kimas v. Boera Development Corporation Ltd (2012) SC1172
Lihir Mining Area Landowners Association Inc. v. Newcrest Mining Ltd and Ors (2022) N9477
Frances Koaba v. Rufina Peter MP and Ors (2024) N10896
Michael N Wilson v Clement Kuburam (2016) N1489
Tau Kamuta v. David Sode and 1 Or (2006) N3067
OS 293 of 2008 - Downer Construction (PNG) Ltd v. Hon Dr Allan Marat Attorney General of the Independent State of Papua New Guinea (10 & 22 July)
National Capital District Commission v. Internal Revenue Commission and 6 Ors (2021) N9142
Jerry David v. Provincial Executive Council of the Southern Highlands Province and Ors (2024) N11062
Oscar Pomaleu & Ors. v. William Skate Jr & Anor. (2006), unreported, SC 838, delivered on 21st July 2006
Peter Mission Traven v. Andrew Traven and ors (2007) N3142

Counsel
Mr Webb KC with counsel assisting Mr Bidar, for the plaintiff
Mr Molloy with counsel assisting Mr Paru and Ms Anderson, for the first defendant
Mr Andersen with counsel assisting Dr. Katter and Ms Nigs, for the second defendant

DECISION

1. ANIS J: This is my decision on notices of motion filed and moved by the first and second defendants on 9 June 2025. The defendants sought to dismiss or permanently stay the proceeding. The plaintiff contested the applications. I reserved my ruling thereafter to a date to be advised.

BACKGROUND

2. The plaintiff sues the defendants for himself as well as the representative of other persons or landowners. These persons are called Class Members and Private Class Members as he describes them in the proceeding. The Writ of Summons and Statement of Claim, which was subsequently amended and filed on 25 June 2024 (AWSoC), claims alleged negligence and breach of constitutional rights. The claims are premised on (i) alleged environmental and personal injuries including alleged human rights violations, purportedly committed by the defendants during the operation of the Bougainville Copper mine from or around 1971 to around 1989, (ii) alleged abandonment of the mine site since 1989 and (iii) alleged ongoing physical, economic and cultural damage and personal injury.

3. The defendants filed their respective defences denying the claims. They also filed separate cross-claims against themselves. Briefly, their cross-claims are filed subject to (or in the event of) the Court finding liability in favour of the plaintiff. They assert in their cross-claims that should that occur, they seek or would seek, amongst others, contributions against each other, under Part VIII of the Wrongs (Miscellaneous Provisions) Act Chapter No. 297 or under s.155(4) of the Constitution.

MOTIONS

4. The first defendant’s notice of motion was filed 3 October 2024. It seeks the following main relief:

1. Pursuant to Order 12 Rule 40(1)(a), (b) and/or (c) of the National Court Rules and/or Order 10 Rules 9A(15)(1)(a) and/or 9A(15)(2)(d) and (e) of the National Court Rules and/or section 155(4) of the Constitution and/or the inherent jurisdiction of the Court, the proceedings be stayed or dismissed generally.
   
2. The First Defendant’s costs of these proceedings, including the costs of this application, shall be paid by the Plaintiff on an indemnity basis.

.....

5. And the second defendant’s notice of motion was filed 1 October 2024 and seeks the following main relief:

1. Pursuant to Order 10 Rule 9A 15(1)(a), Order 10 Rule 9A 15(2)(d) and (e), Order 10 Rule 9A 16, Order 10A (Commercial List) Rules 15 and 25, Order 12 Rule 1 and Order 12 Rule 40(1)(a), (b) and/or (c), of the National Court Rules and/or the inherent jurisdiction of the Court, the proceedings be summarily determined, permanently stayed or dismissed generally.
   
2. The plaintiff shall pay the second defendant’s costs of these proceedings, including the costs of this Notice of Motion, on an indemnity basis.

......

6. The notices of motion are supported by various affidavits that were read into the records as evidence. The plaintiff also filed affidavits to oppose and respond to the applications.

DISCRETION

7. The Court’s power to consider and decide on these types of applications is discretionary. The discretion, however, must be exercised judicially or upon proper consideration of the matter. Ted Taru and 1 Or v. Pacific MMI Insurance Ltd and Ors (2021) SC2098 and John Numapo v. Nerrie Eliakim and Ors (2020) SC1965.

EVIDENCE

8. As stated, various evidence were relied upon by the parties in the matter. I will refer to them appropriately or where necessary to do so.

ISSUES

9. The issues that I prefer to address first are, (i), whether the plaintiff has met the requirements for instituting a class or representative action including his standing in the matter, (ii), “Who is the plaintiff’s ‘lawyer’ in the matter and in this proceeding?”, (iii), whether the doctrine of Champerty and Maintenance without its revision provisions (which were incorporated by the English Criminal Law Act 1967) apply in this jurisdiction, and subject to these findings, (iv), whether the proceeding should be dismissed or stayed premised on want of reasonable cause of action, frivolity, and abuse of Court process.

LAW ON REPRESENTATIVE ACTION/CAPACITY TO SUE UNDER CUSTOM

10. Order 5 Rule 13 of the National Court Rules (NCR) states:

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

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

11. The law in regard to commencing representative action is settled in this jurisdiction. Rus Mongogl v. MVIT [1985] PNGLR 300, Tigam Malewo v. Keith Faulkner (2009) SC960, Simon Mali v The State (2002) SC690, Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001, Malewo v. Faulkner (2009) SC960, Kimas v. Boera Development Corporation Ltd (2012) 1172, and Lihir Mining Area Landowners Association Inc. v. Newcrest Mining Ltd and Ors (2022) N9477. At para. 15 in Lihir Mining Area Landowners Association Inc. v. Newcrest Mining Ltd and Ors (supra), I summarised them as follows:

15.....In a case where a person is suing in a representative capacity, it should always be mandatory (as well as good practice) that the person have or file the legal documentations, to show or justify the person’s capacity or basis for bringing an action for or on behalf of that other person or persons. The requirement should not be left until much later for the trial Court to decide. Such requirements are necessary to form the foundation of a claim or cause of action. Case law is settled on this point. I refer to what Lord Denning has said in the case Bowler v Mollem Co. Ltd [1954] 3 All ER at pg. 556, which was also cited by Pratt J in Rus Mongogl v. MVIT [1985] PNGLR 300. He said, the thing which cannot be cured is the bringing of an action in a representative capacity when that capacity does not exist. I also refer to the Supreme Court case of Tigam Malewo v Keith Faulkner (2009) SC960 which sets the 3 fundamental requirements. Firstly, all the intended plaintiffs must be named in the originating process. Secondly, every intended plaintiff must give specific instructions (evidence in writing) to his or her lawyer to act for him or her. And thirdly, persons who claim to represent others, must produce an authority or authorities to the Court to show that they were duly authorised by these intended plaintiffs to file proceedings as a class or representative action.

12. The Supreme Court in Malewo v. Faulkner (supra) upheld Davani J’s decision in upholding the principles for instituting a representative action which were held in Simon Mali v The State (supra) and Eliakim Laki and 167 Others v Maurice Alaluku and Others (supra). They were restated as follows:

- all intended plaintiffs must be named in the originating process;

- each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

- any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

13. These requirements do not consist of an exhaustive list. As such and as for this case, I also take into account custom which may be relevant under this heading. I refer to para. 23 of the AWSoC which states:

23. In accordance with local custom, land in the Affected Area is occupied, owned, possessed or the subject of rights held by identifiable groups of persons interrelated by matrilineal ties of kinship (including male members of the lineage), which are broadly referred to as “clans”. [Bold lettering mine]
    

14. With that, I make these observations. If the land concerned is owned by matrilineal lineage, then what this means or implies is the women are the ultimate customary landowners in the Affected Area as pleaded in the AWSoC. This leads me to the question of whether their consents are also required apart from the consents from those that merely occupy or use the customary land in the Affected Area. Further, that if a male person like the plaintiff herein, who intends to bring an action over land that he is occupying, that whether he should also provide some evidence of express authorities of the women landowners of the said area. If he owns the land through custom, then whether he should explain or particularise that in his pleadings, that is, how he was able to acquire customary land where he could sue under it using his own name and under a customary right in a matrilineal system of land ownership. This, in my view, may also be relevant factors, that is, apart from obtaining consents from, (i), the women landowners of the Affected Area and, (ii), the occupiers or occupants of these traditional lands that fall under the matrilineal system.

15. I also observe in general numerous cases in PNG where landowners of patrilineal lineage would bring class actions on their own behalf and on behalf of their clans or groups. The lead plaintiff would be an adult male who would profess himself as a member of a particular clan or group, and he would state whether he acts for himself only or for and on behalf of his clan or group members. The question of standing for them would not arise given their status as landowners under patrilineal systems of landownership, and Courts may take judicial notice in that regard, that is, apart from a plaintiff having the onus to also provide the other mandatory prerequisites for commencing a representative or class actions as established in the case law. Perhaps had a woman landowner commenced the present proceeding for herself and on behalf of the landowners including those of the Affected Area, the situation could or may have been different.

JURISDICTIONAL ARGUMENTS/ABUSE OF COURT PROCESS

16. Having heard arguments from the parties, let me observe the 3 identified issues raised for the dismissal of the proceeding. The issues question the validity of the AWSoC; that is, whether the AWSoC was filed in observance of the correct form; whether the plaintiff had followed the strict rules and laws as established in the case law when he claims that he is suing for himself and on behalf of the other purported plaintiffs or landowners. And also, whether the plaintiff’s lawyers are “lawyers” who are recognized under the laws of Papua New Guinea, including the Lawyers Act 1986 (LA), who are or may be “eligible” to act for the plaintiff and file court documents including the AWSoC; and subject to the Court’s findings on that, what it will or may mean to the proceeding that is on foot (if any).

17. All of these suggest to me that I should perhaps deal with a central issue of whether the proceeding was improperly commenced and therefore whether it amounts to abuse of court process. I prefer to proceed in that manner.

(i) Abuse of process

18. Abuse of process may come in many forms. Justice Pardon-Sully stated, which I adopt, at paras. 68 and 69 in the case Frances Koaba v. Rufina Peter MP and Ors (2024) N10896 as follows:

68. The form that an abuse of Court process may take is not capable of finite measurement (Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13 per Lord Diplock at [1]). It may, for example, involve using the Court processes to engage in deliberate delay, or the filing of applications involving the same parties and issues in different proceedings whether in the same or a different litigation stream, either as a form of ‘judge shopping’ or until a preferred outcome is achieved or for some perceived strategic advantage. At its core, however, is the use of a court process in way not intended. It is using the rules and procedures meant to ensure a fair system to manipulate that system for a desired outcome. To use a colloquial expression, it is an attempt to ‘game the system’. At its core also, as Justice Carey, accurately described, respectfully to His Honour, is bad lawyering. This Court respectfully endorses the concerns expressed in the plainest terms by His Honour in his ex tempore reasons in OS No 146 of 2023 with respect to the misuse of Court’s processes by litigants and/or their lawyers and the impacts of that on the Court’s work.

69. In the end unless the Court zealously protects its processes, it is the administration of justice which suffers.

19. Justice Gavara-Nanu in Michael N Wilson v Clement Kuburam (2016) N1489 at para. 35 states, which I also adopt, as follows:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.””

(ii) Standing – Capacity to sue
for himself and Ors

20. I have heard detailed and lengthy submissions from the parties in regard to whether the plaintiff can sue in the capacity and manner as pleaded in his AWSoC.

21. Apart from what I have observed above in regard to the law on representative action and customary land rights that are conferred under or in a matrilineal system, the next place to consider is the pleadings. I re-state para. 2 of the AWSoC herein:

2. The proceedings are brought by the Plaintiff on his own behalf and on behalf of natural persons who:
   
   1. at any time from the commencement of mining activities at the Mine to the date of this pleading occupied, owned, possessed or had other rights according to custom in land in or around the Mine site and within or adjacent to the Jeba-Kawerong river system (being the Affected Area as identified in the map in Schedule A); and
      
   2. have suffered and/or continue to suffer loss or damage to their person or property by reason of the conduct of Rio and BCL pleaded below.
      

(the Class Members), including the Class Members listed in Schedule C (the Private Class Members). [Underlining and Bold lettering mine]

(iii) Legal Representation

22. I turn to the next preliminary issue, which is legal representation, and I note the submissions of the parties in this regard.

23. The real question I will have to answer is whether the plaintiff can engage Morris Mennilli Pty Ltd of Sydney Australia (Morris Mennilli), which is an overseas law company, to act for him in this matter. It is not disputed that Morris Mennilli does not have lawyers who have been admitted to practice law in Papua New Guinea. I will also consider whether it is sufficient for Morris Mennilli to engage a local firm, namely, Goodwin Bidar Nutley Lawyers (GBNL) to act as its ‘agent’ and file this proceeding on its behalf in this jurisdiction.

24. The applicable law herein would be the LA. I re-state the definitions of “Lawyer” and “Resident” under s. 1 and “Practise” under s.33, as follows:

“lawyer” means a person who has been admitted to practice as a lawyer under this Act;

......

“resident” means, for the purpose of the issue of a practising certificate–

(a) a lawyer who is a citizen; or

(b) a person who declares on oath in writing that he intends to reside in Papua New Guinea for a period of not less than 12 months from the date of his application for a practising certificate;

......

33. PRACTISE.

A person–

(a) who has been admitted to practise as a lawyer under Section 28; and

(b) has signed the Roll,

may practise as a lawyer in accordance with the provisions of this Act.

25. The other applicable law is s.1 of the Interpretation Act Chapter No. 2 (Interpretation Act) which defines a lawyer as follows,

" lawyer" means a person who has been admitted to practice as a lawyer under the Lawyers Act 1986.

26. In Tau Kamuta v. David Sode and 1 Or (2006) N3067, Injia J, as he then was, stated at para. 46:

46. .....The terms Legal officer, or a person who has attained "full admission as a barrister or solicitor of the Supreme Court of Papua New Guinea" or an "Advising Officer Litigation" or any other similar terms which a person chooses to describe his or her practice in law in the Courts, either as an advisor/solicitor in a law office or as an advocate in Court come under one definition - "a lawyer" under the Lawyers Act 1986: see PNG Law Society v Richard Stegman [1998] PNGLR 541. A person who does not posses that qualification as a lawyer cannot enjoy the privileges and benefits conferred by it and any such enjoyment of privileges, benefits etc, would be contrary to law. In fact it is a criminal offence under the Lawyers Act, for a person to occupy a position reserved for lawyers and perform or purport to perform the duties of a "lawyer" without being so qualified. Equity only follows the law.

27. Overseas based or non-citizen lawyers may practice law in this jurisdiction. They may qualify as a ‘lawyer’ within the definition of the LA if they are enrolled as a lawyer under s.33. If they do not qualify under s.33 (i.e., overseas based barristers) but have been briefed to appear for a party in a matter in the National or Supreme Courts of Papua New Guinea, they can do so with the approval of the Attorney General, that is, by following the process stipulated under s. 15 of the Attorney General Act 1989 (AG Act). See cases: OS 293 of 2008 - Downer Construction (PNG) Ltd v. Hon Dr Allan Marat Attorney General of the Independent State of Papua New Guinea (10 & 22 July) and National Capital District Commission v. Internal Revenue Commission and 6 Ors (2021) N9142.

28. The final rule I turn my attention to is the National Court Rules (NCR). Order 1 Rule 6 defines “Barrister” and “Counsel” as follows:

"barrister" means a person admitted to practice as a lawyer under the Lawyers Act 1986;

......

"counsel" means a person admitted to practice as a lawyer under the Lawyers Act 1986;

29. And Order 2 Rule 33(1) and (2) of the NCR states:

Division 5.—Solicitors.

33. Power to act by solicitors. (66/1)

(1) Every matter or thing which under an Act or these Rules is required or allowed to be done by a party may be done by his solicitor.

(2) Sub-rule (1) does not apply where the context or subject matter otherwise indicates or requires.

......

CONSIDERATION

30. I make the following observations in addressing the first preliminary issue on standing and representative action; observations that are premised on the submissions and evidence adduced by the parties:

• It appears to me that the plaintiff’s own capacity to sue under custom as expressly pleaded, which is premised on matrilineal system, has clouded his standing and capacity to commence the proceeding on his own accord;
• The plaintiff did not provided any supporting evidence to show that he was duly authorized under the matrilineal system of landownership to bring this action on his own accord;
• The plaintiff also did not provide supporting evidence to explain how he has come to own or acquire his customary land under the matrilineal system of landownership which passes from women folks or kinship that would explain his customary right over the land that he claims to own, that will permit him to sue on his own accord in the manner as he has done in this case;
• The next difficulty I see concerns the plaintiff’s claim that he has been authorized to sue on behalf of the persons that are pleaded in the AWSoC;
• At para. 2 of the AWSoC, the plaintiff expressly pleads that he represents natural persons who...at any time from the commencement of mining activities at the Mine to the date of this pleading occupied, owned, possessed or had other rights according to custom in land in or around the Mine site and within or adjacent to the Jeba-Kawerong river system (being the Affected Area as identified in the map in Schedule A) [Underlining mine];
• He labels these persons as Class Members, and some of them are included in the list that is attached as a schedule to the AWSoC;
• I observe that none of the persons that are listed in the attached schedule to the AWSoC have signed nor have they stated therein their consents to the plaintiff or the plaintiff’s lawyer to act for them;
• The schedule merely contains a list of purported plaintiffs and nothing more;
• The list of these purported plaintiffs consist of the names of 3,905 persons with others who have purportedly signed authorities which have been adduced as evidence by the plaintiff bring the total to more than 5,000 persons;
• However, premised on how the pleading is presented, the plaintiff appears to claim to act on behalf of all natural persons who...at any time from the commencement of mining activities at the Mine to the date of this pleading occupied, owned, possessed or had other rights according to custom in land in or around the Mine site and within or adjacent to the Jeba-Kawerong river system; in my view, this pleading right there makes the plaintiff’s representative assertion vague, incredible, and difficult to fathom; for example, the pleading include persons who may have left the area and no longer live in the Affected Area and so a question that will come up is who are these people;
• But perhaps more revealing is the fact that by the said pleading, the plaintiff does not limit or qualify his representative capacity; that being the case, the attach list of names of purported plaintiffs to the AWSoC and the evidence of purported plaintiffs giving their consents may not be considered as sufficient;
• It is therefore not practicable for the plaintiff to collate and state all the names of the persons as he asserts or claims to represent which may be his first hurdle, that is, in addition to the other requirements that are stated in the case law for commencing proceedings in a representative capacity.
  

31. I also make the following observations and findings on the second preliminary matter concerning legal representation:

• The lawyers of GBNL have deposed under oath that they act as ‘agents’ of Morris Mennilli; I refer to the following which have led me to this conclusion or premise:
  

(i) One of GBNL’s partners Michael Goodwin deposed at paras. 1 and 2 of his Affidavit filed 27 November 2024 (Doc. 93) the following:

“1. I am a partner of Goodwin Bidar Nutley Lawyers (GBNL), being the lawyers on the record for the Plaintiff in the proceedings, Martin Miriori.

2. GBNL’s appointment as Mr Miriori’s lawyers on the record arose out of GBNL’s engagement as the Papua New Guinea agent of Morris Mennilli Pty Ltd (Morris Menilli), a law firm based in Sydney, Australia, which has been retained in relation to this matter by Mr Miriori and certain “Class Members”, including “Private Class Members” (each as defined in the Amended Statement of Claim filed 25 June 2024 (SOC). [Underlining and bold lettering mine]
   

(ii) Another partner of GBNL Daniel Bidar also deposed at paras. 1 and 2 of his Affidavit filed 27 November 2024 (Doc. 90) the following:

“1. I am a partner of Goodwin Bidar Nutley Lawyers (GBNL), being the solicitors on the record for the Plaintiff in the proceedings, Martin Miriori.

2. GBNL’s appointment as Mr Miriori’s solicitors on the record arose out of GBNL’s engagement as the Papua New Guinea agent of Morris Mennilli Pty Ltd (Morris Menilli), a law firm based in Sydney, Australia, which has been retained in relation to this matter by Mr Miriori and certain “Class Members”, including “Private Class Members” (as those terms are defined in the Amended Writ of Summons and Statement of Claim filed 25 June 2024 (SOC). [Underlining and bold lettering mine]
   

(iii) Further to the above, the plaintiff’s own depositions at paras. 6 and 7 of his Affidavit filed 27 November 2024 (Doc.94) confirms or corroborates this fact, which is:

“6. I have engaged Morris Mennilli to perform legal work necessary to investigate, prosecute and resolve claims against the Defendants. In the proceedings, I am represented by Morris Mennilli’s Papua New Guinea agent, Goodwin Bidar Nutley Lawyers (GBL).

7. The legal costs and other fees associated with the prosecution of these proceedings are being funded by a third-party ligation funder, Panguna Mine Action LLC.” [Underlining and bold lettering mine]
   

• The use of the phrase ‘lawyers on the record’ or ‘solicitors on the record’ used by GBNL are deliberate, however, they do not confer the true or correct position which is that GBNL are not “the lawyers” for the plaintiff but rather, are the ‘agents’ of Morris Mennilli who are “the lawyers” for the plaintiff;
• The correct process, in my view, would have been for GBNL to indicate their legal status as the agents of Morris Mennilli in the filed court documents including the AWSoC; in fact, that is the practice in this jurisdiction with lawyers that act as town agents that file Court documents on behalf of their instructing lawyers; the law firm being briefed would state in the back-sheet or cover pages of court documents, its full name followed by words to the effect that it does so as the agent of the principle law firm and the name of the principal law firm would follow; this practice is necessary given the separate distinction in law concerning principal and agent; the significance of that is also reflected under Order 2 Rule 36 of the NCR which states:
  

36. Change of agent. (66/4)

Where a solicitor (in this Rule called the principal solicitor) acts for a party in any proceedings and another solicitor acts as agent for the principal solicitor in the proceedings and the principal solicitor changes the solicitor acting as agent, the party shall file notice of the change and serve the notice on the other parties and on the former agent solicitor.

• What all these mean to me is that the AWSoC appears defective, incorrect and misleading as it does not state the true or correct position which is that GBNL ARE NOT THE LAWYERS of the plaintiff per se but rather ARE AGENTS of Morris Mennilli in this matter; this fact is not reflected in the AWSoC;
• I therefore observe that the AWSoC filed was filed by GBNL who acted as the agents of Morris Mennilli;
• I find that to be the case, and I will proceed on that premise;
• Given that Morris Mennilli is regarded as the ‘lawyer’ for the plaintiff, there are legal implications or consequences that may be drawn from that, namely:
  

(i) The plaintiff has engaged a foreign law entity which is a company, namely, Morris Mennilli to act for him in this matter.

(ii) Morris Mennilli, as shown in the evidence or lack of it, does not have lawyers who are either admitted to practice law in the Supreme and National Courts of Papua New Guinea or who have been issued with certificates from the Attorney General of Papua New Guinea to appear or act for the plaintiff in this matter; a ‘lawyer’ under our laws and rules refer to a person who has been duly admitted to practice as a lawyer or solicitor under the LA; the material evidence adduced by the parties as shown above herein, as opposed to what may be incorrectly perceived from the AWSoC as filed, clearly show Morris Mennilli as the person engaged by the plaintiff to act for him and others in this matter.

(iii) I refer to Order 2 Rule 33(1) of the NCR that addresses parties who may engage lawyers to act for them as follows:

(1) Every matter or thing which under an Act or these Rules is required or allowed to be done by a party may be done by his solicitor; [Underlining mine].

(iv) In the present case, GBNL are not the plaintiff’s solicitors or lawyers per se.

(v) Morris Mennilli is an Australian based company that engages in providing legal services; it is, however, not bound by the laws of Papua New Guinea that governs lawyers and their legal firms in practicing law in the higher Courts of Papua New Guinea, namely, the National and Supreme Courts; these laws include the LA, the AG Act, the NCR and the Professional Conduct Rules.

(vi) Whilst the plaintiff’s right to choose his own lawyers as he pleases is protected under the Constitution, which is reflected in this case, Morris Mennilli cannot act for him as a ‘lawyer’ in this jurisdiction without following the due process or the laws of this country; in fact, Morris Mennilli and its agent could be in breach of some of these laws, however, that is not something that this Court is presently concerned with.

(vii) Therefore, the AWSoC that is filed by GBNL as city agents of Morris Mennilli may be treated as a nullity, that is, for having being prepared and filed by a company which is not recognised as a ‘lawyer’ in this jurisdiction.

(viii) This reason alone is sufficient, in my view, for the proceeding to be dismissed.

32. When I weight all that, I come to the conclusion and find the first 2 issues in favour of the defendants. These reasons, in my view, are sufficient for me to dismiss the proceedings, that is, for abuse of the Court process premised on (i) want of standing or clarity on standing of the plaintiff in the matter, (ii) want of clarity on capacity of the plaintiff to act for the other plaintiffs in the matter, (iii), failure by the plaintiff to comply with the pre-requisite requirements for commencing a representative action, (iv) nullity in the preparation and filing of the AWSoC, (v) substantive defects in the AWSoC, and (vi) Morris Mennilli’s want of qualification to act for the plaintiff as his ‘lawyer’ in the National and Supreme Courts of Papua New Guinea.

33. I note that the 4^th, 5^th and 6^th reasons are standalone grounds for dismissal of the proceeding.

MAINTENANCE & CHAMPERTY

34. There is a further reason to dismiss the proceeding, that is, on the premise that the action is champertous.

35. I note the lengthy submissions of the parties on the doctrine of Maintenance and Champerty. And I appreciate the detailed submissions as well as the evidence from experts that have been presented to the Court.

36. I am, however, minded to uphold the submissions of the defendants on the issue. The application of the doctrine has been established in this jurisdiction by the Supreme Court in the case of Mt. Kare Holdings Pty Ltd and 1 Or v. Wapela Akipe and Ors [1992] PNGLR 26, which was a decision by a 5 men bench (Kapi DCJ, Woods, Hinchliffe, Konilio and Andrew JJ). The Supreme Court held, amongst others, the following:

1. The English Criminal Law Act 1967 ss 13 and 14 revised the principles of common law on maintenance and champerty, but as the Act is not adopted by Sch. 2.6 of the Constitution, the provisions of the Act are to be ignored.
   
2. The principles of common law relating to maintenance and champerty are applicable to the circumstances of Papua New Guinea and form a party of the underlying law.

......

37. At [66] of the Supreme Court’s decision, Justice Andrew defines maintenance and champerty by quoting from para. 400, Vol. 9 of Halsbury’s Laws of England, 4^th Edition, as follows:

“The giving of assistance of encouragement to one of the parties to litigation by a person who has either an interest in the litigation nor any other motive recognised by the law as justifying his interference.

Champerty is a particular kind of maintenance, namely maintenance of an action in consideration of a promise to give the maintainer a share in the proceeds or subject matter of action.”

38. The Supreme Court’s decision has not been re-visited or overturned over the years to date. I note the submissions of counsel for the plaintiff that I should revisit or give a different view given the changes that have been experienced in the other jurisdictions after the passing of the Criminal Law Act 1967. Whilst the submissions are valuable for consideration, sitting as a National Court judge in this jurisdiction, I am, however, obliged by Schedule 2.9(1) of the Constitution, which is also restated under s.19(1) of the Underlying Law Act 2000, to abide by a decision of the Supreme Court. Jerry David v. Provincial Executive Council of the Southern Highlands Province and Ors (2024) N11062 Oscar Pomaleu & Ors. v. William Skate Jr & Anor. (2006), unreported, SC 838, delivered on 21st July 2006, and Peter Mission Traven v. Andrew Traven and ors (2007) N3142.

39. Schedule 2.9(1) of the Constitution states:

Sch.2.9 SUBORDINATION OF COURTS.

(1) All decisions of law by the Supreme Court are binding on all other courts but not on itself.

......

40. Therefore, I find the doctrine of maintenance and champerty applicable without its revision provisions as contained in the English Criminal Law Act 1967.

41. Having determined its applicability, I make the following observations and findings:

• There is no issue that the plaintiff and others that he claims to represent are being funded by a third party, namely, Panguna Mine Action LLC.
• Evidence that were adduced that establishes that included the plaintiff’s own which he had deposed (in para. 6 of his Affidavit filed 27 November 2024 (Doc.94) and I quote, The legal costs and other fees associated with the prosecution of these proceedings are being funded by a third-party ligation funder, Panguna Mine Action LLC.”
• Also adduced in evidence of the parties which are not disputed are standard agreements called Litigation Funding Agreements. The plaintiff and the funder have used these agreements to obtain purported consents from some of the plaintiffs. Template copies of the agreements are contained in the Affidavit of Luke Paniu filed 1 October 2024 (Court Doc. 49).
• The terms of the agreements include provisions where the funder would be entitled to receive a share of the judgment if the plaintiffs were successful.
• The defendants take issues with these types of agreements, and I have heard extensive submissions from the parties on this including submissions on the doctrine of maintenance and champerty.
• However, for this purpose or assessment, I need only state them as evidence to support the undenied position which is that the action is champertous or that it falls within the definition of champerty.
• The doctrine of maintenance and champerty under the common law of England immediately before independence on 16 September 1975, is recognised as part of the Underlying Law in Papua New Guinea without the English revision legislation which is the Criminal Law Act 1967 which is prohibited by operation of our laws, namely, Schedules 2.2(1)(3) and 2.6(1)(c) of the Constitution.
• The arrangements had between the plaintiffs and the funder, some of which are attached in the evidence, may be termed as illegal under champerty.
  

SUMMARY

42. In summary, I will grant the Notices of motion filed by the defendants. I will make an order for dismissal instead of a stay. The dismissal is premised only on the 3 identified issues and the Court’s findings on them. There are other matters and issues that were also raised by defendants in relation to their applications. I, however, decline to consider and make findings on them because I find that the reasons for dismissal as determined herein are sufficient for me to exercise my discretion.

43. For completeness, I refer to the cross-claims, that is, by the first defendant filed 30 April 2025 and by the second defendant filed 22 April 2025. As stated earlier, the cross-claims are filed by defendants against each other seeking contributions on the premise or in the event the Court finds either one of them liable on the claims alleged by the plaintiff in his AWSoC. Given that the proceeding is now dismissed, it makes the cross-claims obsolete or inconsequential. Thus, the dismissal of the proceeding will mean the end of the entire proceeding including the cross-claims filed by the defendants.

COST

44. An order for cost of this nature discretionary.

45. I observe that in both notices of motion, the defendants seek costs on an indemnity basis. I am minded, premised on my reasonings in dismissing the proceeding, to award cost against the plaintiff on an indemnity basis. I find the abuse of process to be serious, and I make special mention of the fact that the plaintiff has engaged an overseas based company that has no qualifications or eligibility to act for him as a qualified lawyer in this jurisdiction and to commence this proceeding on his behalf.

ORDERS

46. I make the following orders:

1. The proceeding is dismissed in its entirety.
   
2. Cost of the proceeding is awarded to the defendants against the plaintiff on an indemnity basis which may be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly

________________________________________________________________
Lawyers for the plaintiff: Goodwin Bidar Nutley
Lawyers for the first defendant: Allens
Lawyers for the second defendant: Dentons