National Superannuation Fund Limited v Yawenaik Holdings Limited also known as Yawanaik Holdings Limited and Chris Manda in his capacity as Surveyor General and Romilly Kila Pat as a delegate of the Minister of Lands and Physical Planning and Hon Benny Allan in his capacity as Minister of Lands and Physical Planning and Hon Powes Parkop in his capacity as Chairman and other Members of the National Capital District Commission Physical Planning Board and Benjamin Samson in his capacity as Registrar of Titles and the Independent State of Papua New Guinea and Sanamo Group Limited and Keith Lahui, Chairman & other Members of the Papua New Guinea Land Board and Delta Corporation Limited and Allan Baniyamai and Barrick Somi Temeri (2018) SC1709

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Higgins and Frank JJ
• Judgment Date: 05 September 2018
• Court: Supreme Court
• Citation: (2018) SC1709
• Docket Number: SCM 3 of 2018
• Year: 2018
• Judgement Number: SC1709

Full Title: SCM 3 of 2018; National Superannuation Fund Limited v Yawenaik Holdings Limited also known as Yawanaik Holdings Limited and Chris Manda in his capacity as Surveyor General and Romilly Kila Pat as a delegate of the Minister of Lands and Physical Planning and Hon Benny Allan in his capacity as Minister of Lands and Physical Planning and Hon Powes Parkop in his capacity as Chairman and other Members of the National Capital District Commission Physical Planning Board and Benjamin Samson in his capacity as Registrar of Titles and the Independent State of Papua New Guinea and Sanamo Group Limited and Keith Lahui, Chairman & other Members of the Papua New Guinea Land Board and Delta Corporation Limited and Allan Baniyamai and Barrick Somi Temeri (2018) SC1709

Supreme Court: Hartshorn, Higgins and Frank JJ

Judgment Delivered: 5 September 2018

SC1709

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM 3 of 2018

BETWEEN:

NATIONAL SUPERANNUATION FUND LIMITED

Appellant

AND:

YAWENAIK HOLDINGS LIMITED also known as YAWANAIK HOLDINGS LIMITED

First Respondent

AND:

CHRIS MANDA in his capacity as SURVEYOR GENERAL

Second Respondent

AND:

ROMILLY KILA PAT as a delegate of the MINISTER OF LANDS AND PHYSICAL PLANNING

Third Respondent

AND:

HON. BENNY ALLAN in his capacity as MINISTER OF LANDS AND PHYSICAL PLANNING

Fourth Respondent

AND:

HON. POWES PARKOP in his capacity as Chairman and other Members of the NATIONAL CAPITAL DISTRICT COMMISSION PHYSICAL PLANNING BOARD

Fifth Respondent

AND:

BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES

Sixth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Seventh Respondent

AND:

SANAMO GROUP LIMITED

Eighth Respondent

AND:

KEITH LAHUI, Chairman & other Members of the PAPUA NEW GUINEA LAND BOARD

Ninth Respondent

AND:

DELTA CORPORATION LIMITED

Tenth Respondent

AND:

ALLAN BANIYAMAI

Eleventh Respondent

AND:

BARRICK SOMI TEMERI

Twelfth Respondent

Waigani: Hartshorn, Higgins and Frank JJ

2018: 26th June ,

: 5th September

Appeal

JUDICIAL REVIEW – failure of counsel to appear – explanation not reasonable – failure not contumelious – appeal having substantial merits – remedy against defaulting lawyers not adequate – no prejudice to respondents – dismissal order set aside

Cases cited:

Papua New Guinea Cases

Curtain Bros (PNG) Ltd v. UPNG (2005) SC788

Mondiai v. Wawoi Guavi Timber (2007) SC886

Barava Ltd v. Giregire Estates Ltd (2008) SC958

Thomas Rangip v. Peter Loko (2009) N3714

Madang Timbers Ltd v. Kambori (2009) SC992

Isaac Lupari v. Sir Michael Somare (2010) SC1071

Ron Napitalai v. PNG Ports Corporation Ltd and Ors (2010) SC1016

State v. Sam Akoita and Ors (2009) SC977

Curlewis v. Yuapi (2013) SC1274

Wawoi Guavi Timber Company Ltd v. John Molu (2016) SC1514

Overseas Cases

Australia Coal and Shale Employees’ Union v. The Commonwealth (1956) 94 C.L.R. 621

Counsel:

Mr. I.R. Molloy and Mr. M. Tumul, for the Appellant

Mr. P. Waraniki, for the First and Eighth Respondents

Mr. W. Steven, for the Second, Third, Fourth and Sixth Respondents

Ms. C. Manua, for the Fifth Respondent

Ms. A. Nasu, for the Seventh Respondent

Mr. L. Ako and Mr. S. Dewe, for the Tenth Respondent

5th September, 2018

1. BY THE COURT: This is a decision on a contested appeal from a National Court decision that dismissed the appellant’s application to set aside an order of dismissal of the proceeding.

Background

2. In the National Court the appellant, Nasfund, had commenced judicial review proceedings concerning land at Nine Mile, Port Moresby, described as portion 2123 (Land). Nasfund claims to be the registered proprietor of the Land. The eighth respondent, Sanamo, claims the same interest. The predecessor of Nasfund (Nasfund) was the registered leasehold proprietor of the State lease over the Land. Its lease expired and it applied for a renewal. The Land Board recommended that the lease be granted to Nasfund, and its decision was gazetted. Nasfund followed up the grant. Despite its earlier recommendation, the Land Board informed Nasfund that its application for the Land was refused and that another application had been successful.

3. The Minister then rejected an appeal under the Land Act 1996 by Nasfund. Nasfund commenced judicial review proceedings and leave to apply for judicial review was granted on 26th May 2016. In a decision on various interlocutory applications delivered on 12th September 2017, the primary judge stated amongst other things, that there was no doubt in his mind that there were serious issues raised in the proceedings and in the interests of justice granted interim injunctive orders. The matter returned to court on 18th September 2017 and directions were issued. A pre-trial conference was set for 30th October 2017. On 30th October 2017 in the absence of Nasfund’s counsel, the matter was called on and the primary judge dismissed the proceedings for want of prosecution. On 6th December 2017, the primary judge dismissed Nasfund’s application to set aside that dismissal. By notice of motion filed 15th January 2018 Nasfund appeals the 6/12 decision.

Objections to competency

4. On 8th February 2018, the first and eighth respondents purported to object to the competency of the appeal. On 14th February 2018 the 10th respondent purported to object to the competency of the appeal but then later abandoned its ground 1.1. The seventh respondent does not take any position on the objections to competency. The fifth respondent supports ground two of the objections to competency and the second, third, fourth, and sixth respondents’ support the objections to competency.

5. The appellant submits that both objections to competency are incompetent. This is because they do not cite the correct rule which enables this court’s jurisdiction to be engaged.

Consideration

6. The notice of objection to competency of the 10th respondent cites Order 7 Rule 15 Supreme Court Rules. It has been held however, that this Rule does not have any application to an appeal by notice of motion under Order 10 Supreme Court Rules as in this case: Mondiai v. Wawoi Guavi Timber (2007) SC886; Barava Ltd v. Giregire Estates Ltd (2008) SC958; Madang Timbers Ltd v. Kambori (2009) SC992. The correct Rule is Order 11 Rule 28 Supreme Court Rules: Pacific Equities & Investments Ltd v. Goledu (2009) SC962; Nandali v. Curtain Bros Ltd (2012) SC1483 and Papua New Guinea Law Society v. Cooper (2016) SC1553.

7. As the objections to competency do not cite the correct jurisdictional basis for making an objection to competency, ( see Order 11 Rule 28 Supreme Court Rules), this court’s jurisdiction has not been invoked. Both objections to competency are therefore incompetent. Further, the objection of the first and eighth respondents’ is plainly not in accordance with form 9, as is required by Order 7 Rule 15(a) Supreme Court Rules, and is therefore incompetent. Given this, it is not necessary to consider the other submissions of counsel concerning the objections to competency.

The Appeal

8. The appellant submits that its appeal should be upheld as the primary judge fell into error in exercising his discretion by not having sufficient regard to:

a) the explanation for the absence of the appellant’s counsel;

b) the explanation as to why a review book had not been filed and served;

c) either default in a) and b) above not being as a result of contumelious disregard or contravention of court orders or process by the appellant;

d) the steps taken by the appellant to have the matter ready for trial.

9. Further, the appellant submits that the primary judge gave disproportionate weight to bringing finality to litigation in circumstances in which the delay was not or not wholly the fault of the appellant and where the parties were in substantial agreement that the National Court proceeding was ready to be allocated a hearing date

10. In addition, the appellant submits amongst other things, that the primary judge in dismissing the proceeding had no or no sufficient regard to the following:

a) orders dismissing the National Court proceedings were disproportionate to the appellant’s default or defaults and more appropriate and proportionate orders could have been made;

b) the respondents did not sustain any or any significant prejudice arising from the appellant’s defaults;

c) the appellant had a substantial prima facie claim which should be heard on the merits;

d) the National Court proceedings raised issues of public administration and importance and there was a public interest in the proceedings being determined on their merits;

e) the appellant is a superannuation fund and the persons ultimately prejudiced by the orders dismissing the National Court proceedings are members of the fund;

f) the appellant itself was not guilty of any default and the appellant’s remedies against its lawyers would not provide a sufficient substitute for the rights claimed and the relief sought by the appellant in the National Court proceeding.

11. The respondents’ submit that the appeal should be dismissed as amongst other things:

a) the primary judge took into...