Obert Laka v Stan Nekital

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 19 October 2016
• Citation: (2016) N6557
• Court: National Court
• Year: 2016
• Judgement Number: N6557

Full : OS 456 of 2015; Obert Laka, Thomas Tamanok, Frank Reto, Anton Tamanok for themselves and members of their Anos Clan of Maragon Village whose names appear in Schedule 1 of the Originating Summons as well as all other landowners whose names appear in the said Schedule 1 and William Jone, Stephen Lasim, Len Neveil, Tilum Gemon for themselves and members of their Kes Kokomagieot Clan of Maragon Village whose names appear in Schedule 1 of the Originating Summons as well as all other landowners whose names appear in the said Schedule 1 v Stan Nekital, Registrar of Tenements and Mineral Resources Authority and Hon. Byron Chan, Minister for Mining and the Independent State of Papua New Guinea and Nord Australex Nominees (PNG) Ltd and Simberi Gold Company Limited (2016) N6557

National Court: Hartshorn J

Judgment Delivered: 19 October 2016

N6557

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 456 of 2015

BETWEEN

OBERT LAKA, THOMAS TAMANOK, FRANK RETO, ANTON TAMANOK for themselves and members of their Anos Clan of Maragon Village whose names appear in Schedule 1 of the Originating Summons as well as all other landowners whose names appear in the said Schedule 1

First Plaintiffs

AND

WILLIAM JONE, STEPHEN LASIM, LEN NEVEIL, TILUM GEMON for themselves and members of their Kes Kokomagieot Clan of Maragon Village whose names appear in Schedule 1 of the Originating Summons as well as all other landowners whose names appear in the said Schedule 1

Second Plaintiffs

AND

STAN NEKITAL, Registrar of Tenements

First Defendant

AND

MINERAL RESOURCES AUTHORITY

Second Defendant

AND

HON. BYRON CHAN, Minister for Mining

Third Defendant

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fourth Defendant

AND

NORD AUSTRALEX NOMINEES (PNG) LIMITED

Fifth Defendant

AND

SIMBERI GOLD COMPANY LIMITED

Sixth Defendant

Waigani: Hartshorn J

2015: 21st December

2016: 19th October

Application to dismiss proceeding

Cases:

Bernard Kosie v. John Kapi Natto (2015) N6263

Bernard Kosie v. John Kapi Natto (2016) unreported SCA 55/15 delivered 6/5/16

H. Stanke & Sons Pty Ltd v. O’Meara [2007] SASC 246

Kerry Lerro v. Stagg & Ors (2006) N3050

Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107

Mamun Investment Ltd v. Onda Koim (2015) SC1409

Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007

Puri Ruing v. Allan Marat (2012) N4672

Rabaul Shipping Ltd v. Rupen (2008) N3289

Takori v. Yagari & Ors (2008) SC905

Wan Global Limited v. Luxurflex Limited (2012) SC1199

Counsel:

Mr. R. Manrai, for the Plaintiffs

Mr. A. Mana, for the Fifth and Sixth Defendants

19th October 2016

1. HARTSHORN J: This is a decision on an application to dismiss this proceeding. The application is made by the fifth and sixth defendants Nord Australex Nominees (PNG) Ltd (Nord Australex) and Simberi Gold Company Ltd (Applicants). It is opposed by the plaintiffs. The application is made pursuant to Order 12 Rules 1 and 40 National Court Rules on the basis that no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious and that the proceeding is an abuse of process of the court.

Background

2. The plaintiffs, comprising persons described as landowners and members of the Anos and Kes Kokomagieot Clans of Simberi Island, Kavieng, New Ireland Province, seek by way of originating summons, amongst others, declaratory relief to the effect that the initial grant of an Exploration Licence to Nord Australex over their customary land and an application for its extension are unlawful and null and void.

This application

3. The Applicants contend that this proceeding should be dismissed as:

a) the relief sought as to the initial grant of the Exploration Licence is statute barred, as Exploration Licence 609 was granted in May 1985;

b) the relief sought as to the extension of the Exploration Licence is premature as the application for its extension is in progress and has not been completed. If an extension is granted and the plaintiffs take issue with such a grant, they can challenge such a grant by judicial review;

c) this proceeding concerns amongst others, a dispute as to ownership of customary land in respect of which the court does not have jurisdiction;

d) the relevant provisions of the Mining Act 1992 provides an exclusive process to be followed concerning any compensation claims, and that process has been exhausted in respect of the Exploration Licence;

4. The plaintiffs contend that the proceeding should not be dismissed as:

a) the plaintiffs have only recently become aware that their land is the subject of an exploration license. They were not given the opportunity to raise objections to the Exploration Licence and so seek to nullify it;

b) a time bar does not apply in this instance as the plaintiffs were not aware of their land being the subject of an exploration license;

c) this proceeding does not concern a dispute as to the ownership of customary land and so this court does have jurisdiction.

Law

5. As to order 12 Rule 1 National Court Rules, this provision in essence allows the court at any stage of the proceedings on the application of any party, to make such orders as the nature of the case requires notwithstanding that the applicant does not make a claim for those orders in the originating process.

6. As to Order 12 Rule 40 National Court Rules, There are numerous authorities in respect of the principles which apply to applications under Order 12 Rule 40 National Court Rules and I refer to the following cases in this regard: Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v. Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

Consideration

7. I consider first whether the declaration seeking that the initial grant of the Exploration Licence is unlawful and therefore null and void, is statute barred.

8. Counsel for the plaintiffs submitted that s. 16 Frauds and Limitations Act 1988 did not apply in this instance as the plaintiffs did not become aware of the existence of the Exploration Licence until recently, and not more than six years ago. No issue was taken by the plaintiffs, as I understand, with the Frauds and Limitations Act 1988 not applying on the basis that the relief that is sought is by way of declaration and that declaratory...