SCA NO. 79 OF 2007; Mount Hagen Urban Local Level Government v Sek No. 15 Limited (2009) SC1007

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2009) SC1007
• Date: 04 September 2009
• Year: 2009

Full Title: SCA NO. 79 OF 2007; Mount Hagen Urban Local Level Government v Sek No. 15 Limited (2009) SC1007

Supreme Court: Gavara-Nanu, Davani and Yagi JJ

Judgment Delivered: 4 September 2009

APPEAL—Appeal against an interlocutory decision of the National Court—Application to dismiss a cause of action for disclosing no cause of action—Failure to plead a statutory or legal right to collect provincial land rates and taxes - National Court Rules O12 r40—Power of National Court to dismiss proceedings—principles discussed—Whether trial judge erred in dismissing proceedings—Onus on the appellant to demonstrate error - no error in exercise of discretion.

PLEADINGS—Letter of delegation sought to be relied upon by appellant, not pleaded in the amended statement of claim—Appellant not entitled to rely on the letter.

Cases Cited:

Anna Wemay v Kepas Tumdual [1978] PNGLR 173; Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8; PNG Forest Products Pty Ltd v The State [1992] PNGLR 85; Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915; Eliakim Laki v Maurice Alaluku, Secretary Department of Lands (2000] PNGLR 392; Kiee Toap v The Independent State of Papua New Guinea (2004) N2766; Kerry Lerro v Philip Stagg (2006) N3050; Philip Takori v Simon Yagari (2008) SC905

DECISION

4th September, 2009

1. BY THE COURT: This is an appeal by the Mount Hagen Urban Local Level Government (“the appellant”) against an interlocutory decision of the Mount Hagen National Court, of 13th July, 2007, where proceedings commenced in the National Court were struck out for failing to disclose a cause of action.

2. The application was made pursuant to O12 r40 of the National Court Rules (‘NCR’). The Amended Writ that was struck out, sought payment of land tax of K56,175.05 from the defendant company, such sum was sought pursuant to the Provincial Land Tax Act No. 10 of 1985. The appellant instituted these proceedings as a local level government or authority, which proceedings or claim covered a period of 6 years commencing from 1997. The claim is contained in the amended Statement of Claim which was filed on 29th September, 2005 and which effectively was that the respondent owns a property described as Section 21 Allotments 36, 37 and 38 situated within the town of Mount Hagen and had failed to pay to the appellant the land rates and taxes in respect to the property since 1997.

3. In striking out the proceedings, the National Court held that the appellant did not have the legal authority to collect land rates and taxes because the purported delegation of power by letter of 5th November, 1990, was not saved by the subsequent amendment to the law. The National Court also found that the appellant’s pleading, in particular the amended Statement of Claim, was deficient or defective in that it failed to plead the letter purporting to delegate such power.

Background

4. In or about 1985, the Western Highlands Provincial Government (‘WHPG’) enacted a provincial legislation called the Provincial Land Tax Act No. 10 of 1985, which expressly authorized and empowered the Western Highlands Provincial Government to impose and collect land rates and taxes. This responsibility was delegated to the Mount Hagen Town Authority by the WHPG’s letter dated 5th November, 1990.

5. In 1995, the National Parliament repealed the Organic Law on Provincial Governments (‘repealed Organic Law’) and enacted the Organic Law on Provincial Governments and Local Level Governments (‘Organic Law). The Organic Law provided for the transition and savings in respect of provincial laws passed by the old provincial government.

6. Under the Organic Law, the Mount Hagen Town Authority was succeeded by the Mount Hagen Urban Local Level...