Buni Morua for myself and on behalf of the 79 other occupants of Portion 1189 of Laloki, Central Province v China Harbour Engineering Company (PNG) Ltd and China Harbour Engineering Company Ltd (2020) N8188

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, DCJ
• Judgment Date: 07 February 2020
• Court: National Court
• Citation: (2020) N8188
• Docket Number: WS No 437 of 2019
• Year: 2020
• Judgement Number: N8188

Full Title: WS No 437 of 2019; Buni Morua for myself and on behalf of the 79 other occupants of Portion 1189 of Laloki, Central Province v China Harbour Engineering Company (PNG) Ltd and China Harbour Engineering Company Ltd (2020) N8188

National Court: Kandakasi, DCJ

Judgment Delivered: 7 February 2020

N8188

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 437 of 2019

BETWEEN:

BUNI MORUA for myself and on behalf of the 79 other Occupants of Portion 1189 of Laloki, Central Province (whose names are appended at the back of the report

Plaintiff

AND:

CHINA HARBOUR ENGINEERING COMPANY (PNG) LIMITED

First Defendant

AND:

CHINA HARBOUR ENGINEERING COMPANY LIMITED

Second Defendant

Waigani: Kandakasi, DCJ.

2019: 18th December

2020: 07th February

ENVIRONMENTAL LAW – Climate Change – Right to life – Right to healthy environment – States duty – Appearance of breach – Court invoking suo moto powers under s. 57(1) of Constitution and Court Rules to order joinder of relevant State authorities and orders for full report on steps taken under relevant and applicable domestic and international law.

JUDGMENT AND ORDERS – Powers of the Court –Courts power to act on its own motion or suo moto – S. 57 (1) of the Constitution – Court has power to act suo or moto for the protection or enforcement of human rights – Right to life – Right to healthy environment - When can it be exercised – Within proceedings already commenced or commencement of new proceedings – Invoking suo moto powers to order joinder of parties.

PRACTICE & PROCEDURE – Application seeking to dismiss proceedings for lack of standing or locus standi – Principles on – Interest in the subject matter – Nature of claim – Environmental damage –- Effect on right to life - Who has standing - Global jurisprudence –– Any person concerned with the breach or likely breach of his own or that of another’s right has standing – The Court also has power to act suo moto or “on its own motion” under s. 57 (1) of the Constitution

PRACTICE & PROCEDURE - Application seeking to dismiss proceedings for failure to disclose reasonable cause of action – Relevant principles - Need to disclose a cause of action known to law – Lack of particulars does not amount to failure to disclose cause of action – Request for further and better particulars proper cause and not application for dismissal - Application to dismiss is an abuse of process – Application dismissed with solicitor and own client costs.

PRACTICE & PROCEDURE – Application for default judgment - Insufficient pleadings - Need for proper pleadings with particulars – Application dismissed – Plaintiff required to file and serve an amended writ and statement of claim.

WORDS & PHRASES – “own initiative” – Court acting on its own or “suo moto” to commence proceeding or make orders or grant such reliefs it considers appropriate without any of the parties prompting.

Cases Cited:

Papua New Guinea Cases

Application by Ila Geno (2014) SC1313

David Kabomyap Allolim v. Biul Kirokim (2018) SC1735

Don Polye v. Jimson Papaki & Ors (2000) SC637

Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763

Ilai Bate v. The State (2012) SC1216

Kenn Norae Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886

Kerry Lerro v. Philip Stagg (2006) N3050

Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300

Mekere Morauta v. Ano Pala (2016) SC1529

Mendepo v. National Housing Corporation (2011) SC1169

Namah v. Pato (2014) SC1304

Philip Kikala v. Electoral Commission (2013) N4960

Philip Takori v. Simon Yagari (2008) SC905

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126

PNG Forest Products Pty Ltd v. State [1992] PNGLR 85

Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329

Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [1981] PNGLR 396

Re alleged improper borrowing of AUD1.239 Billion Loan (2016) SC1556

Re Alleged Brutal Treatment of Suspects (2014) N5512.

Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266

Re Conditions of Detention at Beon Correctional Institution (2006) N2969

Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022

Re Conditions of Detention at Buka Police Lock-Up (2006) N4478

Re Conditions of Detention at Buka Police Lock-Up (2006) N4976

Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918

Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007

SCR No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362

Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886

Re Miriam Willingal [1997] PNGLR 119

Re Petition of MT Somare [1981] PNGLR 265

Re Release of Prisoners on Licence (2008) N3421

Rimbao v. Pandan (2011) SC1098

The State v Jimmy Ketu (No 2) (2007) N3394

The State v Transferees (2015) SC1451

Thomas Serowa v. Pacific Hires Ltd (2016) SC1517

Ume More v. The University of Papua New Guinea [1985] PNGLR 401

William Powi v Pastor Bernard Kaku (2018) SC1743

Overseas Cases

The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC.

Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532.

Munn v. State of Illinois, 94 U.S. 113 (1876)

Sunil Batra v. Delhi Administration AIR 1978 SC 1675

Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621

Urgenda Foundation v. The Kingdom of Netherlands [2015] HAZA C/09/00546689

Leghari v. Republic of Pakistan (2015) W.P. No. 25501/2015

Re Court on its Own Motion v. State of Himachal Pradesh and Others M.A. Nos 389/2014, 1145/2015 and 1250/2015, 324/2016 & 325/2016 (Nat’l Green Tribunal).

Legislation Cited:

Claims By and Against the State Act 1996

Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel:

F. Unage, for the Plaintiffs

H. Monei for the Defendants

07th February, 2020

1. KANDAKASI DCJ: I have heard and reserved a ruling on two competing motions. One of the motions is by the Defendants (CHECL) seeking a dismissal of the proceedings for a failure to disclose a reasonable cause of action and for the Plaintiffs’ lacking the necessary standing to bring this claim. The other motion is by the Plaintiffs (Moruas) seeking judgment in default of CHECL’s defence.

Relevant Issues for Determination

2. The issues the Court must determine are three namely:

(1) Do Moruas lack the necessary standing to bring these proceeding?

(2) Is there a failure in the Moruas pleading to disclose a reasonable cause of action against CHECL?

(3) Is there foundation for entry of default judgment against CHECL?

3. An affirmative answer to the first two issues will necessarily result in a dismissal of the proceeding. That will render a consideration of the third issue unnecessary. Hence, I will deal with the issues in the order presented.

Relevant Background and Facts

4. The background and facts giving rise to the issues before the Court is straight forward. The State through the Department of Works and Implementation contracted CHECL to reconstruct the Laloki Bridge just outside Port Moresby but located in the Central Province. That was in January 2015. Pursuant to that contract, CHECL carried out various works for the purposes of reconstructing the bridge.

5. The Moruas with their respective families live on a land described as an Agriculture State Lease volume 101, Folio 87, Portion 1189, Granville Milinch, Fourmil of Port Moresby (the Land). The Land is situated along the Hiritano Highway close to the Laloki Bridge. They claim that the work undertaken by CHECL for the purposes of reconstructing the Laloki Bridge has caused substantial environmental damages and release into the air dust, chemicals, damping of waste and other pollutants. They claim the damages include, air, water and noise pollution as well as damages to the Land’s top soil which they rely upon for farming to support their livelihoods. Further, they claim that CHECL fail to make good the damage they have done and since left the area. Furthermore, they claim that CHECL also committed acts of trespass and conversion in terms of entering the Land and without any prior approval or consent from them. They go on to claim they protested and complaint to no avail. Hence, they claim that they took the matter up with the relevant authorities which included the Conservation Environment Protection Authority (CEPA) to investigate. In particular they asked CEPA to ascertain if CHECL applied for and received the relevant permit or approval under the Environment Act. They also asked CEPA regarding CHECL’s responsibility to clean-up the damage they caused.

6. CEPA engaged three of his technical officers and scientist to carry out the Environmental Impact Assessment (EIA). At the same time, the Moruas engaged a Chem Clean Environmental Services Limited (CCESL), private environmental impact assessor company to do an EIA. Both of these entities completed their respective...