Andita Keko v Barrick (Niugini)

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 25 July 2016
• Citation: (2016) N7569
• Court: National Court
• Year: 2016
• Judgement Number: N7569

Full : OS 178 of 2015; Andita Keko and 13 other Landowner Agents as named in the Schedule to this Originating Summons and Justice Foundation for Porgera Ltd v Barrick (Niugini) Ltd and Hon Byron Chan, MP Minister for Mining of the Independent State of Papua New Guinea and the Attorney General as Nominal Defendant for the Governor General of the Independent State of Papua New Guinea and the Independent State of Papua New Guinea (2016) N7569

National Court: Hartshorn J

Judgment Delivered: 25 July 2016

N7569

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 178 of 2015

BETWEEN:

ANDITA KEKO and 13 other

Landowner Agents as named in the

Schedule to this Originating Summons

First Plaintiffs

AND:

JUSTICE FOUNDATION FOR PORGERA LTD

Second Plaintiff

AND:

BARRICK (NIUGINI) LTD

First Defendant

AND:

HON BYRON CHAN, MP Minister for

Mining of the Independent State of Papua New Guinea

Second Defendant

AND:

THE ATTORNEY GENERAL as

Nominal Defendant for the Governor General

of the Independent State of Papua New Guinea

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA

NEW GUINEA

Fourth Defendant

Waigani: Hartshorn J

2015: 4th September

2016: 25th July

Application to dismiss proceeding

Cases Cited:

Bernard Kosie v. John Kapi Natto (2015) N6263

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

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

Takori v.Yagari & Ors (2008) SC905

Wan Global Limited v. Luxurflex Limited (2012) SC1199

Counsel:

Mr. P. Harry, for the Plaintiffs

Mr. M.M. Varitimos QC and Mr. R. Bradshaw, for the First Defendant

25th July, 2015

1. HARTSHORN J: This is a decision on an application to dismiss this proceeding. The application is made by the first defendant Barrick (Niugini) Limited (Barrick) and opposed by the plaintiffs. The application is made pursuant to Order 12 Rule 40 (1) (a), (b) and (c) National Court Rules and this court’s inherent jurisdiction to control proceedings before it.

Background

2. The plaintiffs, comprising persons described as landowners, and a company, seek by way of originating summons, amongst others, declaratory relief to the effect that a certain Mining Development Contract made on 12th May 1989 (MDC) is void ab initio and the Porgera Special Mining Lease No 1 granted on the same date (SML), is of no legal force or effect.

This application

3. Barrick contends that this proceeding should be dismissed as:

a) the proceeding should have been commenced by way of judicial review proceedings, for which leave was required, and applying the principles for the grant of leave, leave would never have been granted;

b) the plaintiffs should have sought all the relief in the one proceeding, including claims based on trespass and negligence, rather than the proposed multiple proceedings;

c) the claim is statute barred;

d) the action is clearly misconceived and untenable;

e) the proceeding is vexatious and in the circumstances constitutes harassment of the first defendant by use of court proceedings seeking to declare contracts entered into over 25 years ago, and acted upon, void ab initio or invalid.

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

a) the application of Order 12 Rule 40 National Court Rules is focused on pleadings in a statement of claim and not on an originating summons that seeks a declaration that concerns the State entering into a contract without legislative power and that the contract should be set aside as void ab initio;

b) any party seeking a declaration to determine its rights must be heard;

c) the determination of the declarations sought is incapable of strike out proceedings before the plaintiffs’ articulate their arguments in the National Court;

d) the originating summons is not an abuse of process;

e) the originating summons is neither frivolous, vexatious or a duplication of previous proceedings;

f) the declarations sought are serious issues to be tried and do not fall into the category of cases where no reasonable cause of action is disclosed.

Order 12 Rule 40 National Court Rules

5. As to the plaintiffs’ contention concerning Order 12 Rule 40 National Court Rules that it is focused on pleadings in a statement of claim and not on an originating summons that seeks a declaration, Order 12 Rule 40 is in Division 4 of Order 12 National Court Rules. Order 12 Rule 37 provides that Division 4 applies to all proceedings except proceedings which include certain categories which are not relevant to this proceeding. Further, Order 12 Rule 40 provides at its beginning, “Where in any proceedings…….” I am satisfied therefore that Order 12 Rule 40 can be relied upon for a proceeding commenced by an originating summons and in respect of an originating summons that seeks a declaration.

6. 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.”

Whether the proceeding should have been commenced by way of judicial review

7. Barrick contends that by seeking the relief that the MDC is void ab initio and that the SML is invalid, the plaintiffs are in essence challenging a decision of the Governor General. That is the Governor General’s decision to execute the MDC and SML on the advice of the National Executive Council. The decision is challenged on the basis that the Governor General exceeded or lacked the requisite jurisdiction and so the MDC and SML are invalid and should be quashed.

8. The declarations sought by the plaintiffs in this instance in substance or in effect are seeking to achieve what should be achieved by seeking orders in the nature of certiorari, after applying and being granted leave for judicial review. The practical effect of the declarations, if granted, would be that the decision of the Governor General, on advice of the National Executive Council, to execute the MDC and the SML would...