Soka Toligai as President of Sentral Niu Ailan Local Level Government v Sir Julius Chan, the Governor of New Ireland Province and Amani Monovi, the Administrator, New Ireland Province (2012) N4842

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 18 July 2012
• Court: National Court
• Citation: (2012) N4842
• Docket Number: OS 173 of 2012
• Year: 2012
• Judgement Number: N4842

Full Title: OS 173 of 2012; Soka Toligai as President of Sentral Niu Ailan Local Level Government v Sir Julius Chan, the Governor of New Ireland Province and Amani Monovi, the Administrator, New Ireland Province (2012) N4842

National Court: Hartshorn J

Judgment Delivered: 18 July 2012

N4842

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 173 OF 2012

BETWEEN:

SOKA TOLIGAI as President of Sentral

Niu Ailan Local Level Government

Plaintiff

AND:

SIR JULIUS CHAN, the Governor

of New Ireland Province

First Defendant

AND:

AMANI MONOVI, the Administrator,

New Ireland Province

Second Defendant

Kokopo: Hartshorn J.

2012: 17th, 18th July

Application to dismiss proceeding – Order 12 Rule 40 National Court Rules - privity of contract – proceeding bound to fail - frivolous

Facts:

The defendants have applied to dismiss this proceeding. They submit that the plaintiff does not have the necessary standing or locus standi to seek the relief that he does. The plaintiff submits that he does have the necessary standing as he is the President of a Local Level Government that is referred to in the Agreement pursuant to which relief is sought.

Held:

The plaintiff is not a party to the Lihir Agreement and so does not have the necessary standing to seek the relief that he does and no cause of action is disclosed against the defendants. The proceeding is bound to fail and consequently is frivolous.

Cases cited:

Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8

PNGBC v. Barra Amevo & Ors (1998) N1726

Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261

The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603

Kiee Toap v. The State (2004) N2731, N2766

Lerro v. Stagg (2006) N 3050

Ben Maoko v. Kevin Ling (2008) N3293

Counsel:

Mr. R. Asa, for the Plaintiff

Mr. J. Kusip, for the Defendants

18th July, 2012

1. HARTSHORN J: The defendants have applied to dismiss this proceeding. They submit that the plaintiff does not have the necessary standing or locus standi to seek the relief that he does. The plaintiff submits that he does have the necessary standing as he is the President of a Local Level Government that is referred to in the Agreement pursuant to which relief is sought.

2. In this proceeding the plaintiff seeks declaratory and consequential relief to the effect that certain royalty payments referred to in the Revised Memorandum of Agreement relating to the Lihir Gold Mining Project between the State, New Ireland Provincial Government, The Nimar Rural Local Level Government and The Lihir Mining Area Landowners Association Inc. dated 2 May 2007 (Lihir Agreement), belong to the Sentral Niu Ailan Local Level Government (SNA LLG).

3. The defendants apply to dismiss this proceeding pursuant to Order 12 Rule 40 National Court Rules as it is frivolous or vexatious or an abuse of the process of this court.

4. It is clear upon a perusal of the Lihir Agreement that the plaintiff is not a party to it. Further, contrary to the submissions of the plaintiff, in clauses 6 (c) (i) and 23 (i) of the Lihir Agreement upon which the plaintiff relies, the references are to “Namatanai District” and not the SNA LLG.

5. Pursuant to the doctrine of privity of contract, “…. no person can sue or be sued on a contract unless he or she is a party to it: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] AC 847. The doctrine of privity means a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties to it.” : Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261, per Lenalia J.

6. Other decisions in this jurisdiction have considered and ruled pursuant to the doctrine of privity of contract: PNGBC v. Barra Amevo & Ors (1998) N1726, The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603 and Ben Maoko v. Kevin Ling (2008) N3293.

7. In Ben Maoko (supra), Cannings J referred to exceptions to the doctrine of privity of contract. In the case before him no exceptions were pleaded. In this case as well, no exceptions are pleaded, or referred to in submissions.

8. Counsel for the plaintiff referred to there being an implied trust between the New Ireland Provincial Government and the SNA LLG. Even if a trust was implied, and I do not consider this, as referred to, there is no reference to the SNA LLG in the Lihir Agreement.

9. A further factor that is able to be considered in determining whether this proceeding is frivolous or vexatious is whether the plaintiff has a cause of action against the named defendants. Here, as the New Ireland Provincial Government is not named as a party to this proceeding; only the Governor and Administrator of the Province are so named, and they are not parties to the Lihir...