Jack Wagambie and Joseph Kupo appointed representatives for and on behalf of 522 re-trenched members of the Papua New Guinea Defence Force v Brigadier General Rockus Lokinap, Commander of Papua New Guinea Defence Force and Steven Mokis, Secretary for the Department of Defence and the Independent State of Papua New Guinea (2019) N8104

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 13 November 2019
• Court: National Court
• Citation: (2019) N8104
• Docket Number: OS No 58 of 1989
• Year: 2019
• Judgement Number: N8104

Full Title: OS No 58 of 1989; Jack Wagambie and Joseph Kupo appointed representatives for and on behalf of 522 re-trenched members of the Papua New Guinea Defence Force v Brigadier General Rockus Lokinap, Commander of Papua New Guinea Defence Force and Steven Mokis, Secretary for the Department of Defence and the Independent State of Papua New Guinea (2019) N8104

National Court: Anis J

Judgment Delivered: 13 November 2019

N8104

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 58 of 1989

BETWEEN:

JACK WAGAMBIE, JOSEPH KUPO appointed representatives for and on behalf of 522 re-trenched members of the Papua New Guinea Defence Force

Plaintiffs

AND:

BRIGADIER GENERAL ROCKUS LOKINAP, Commander of Papua New Guinea Defence Force

First Defendant

AND

STEVEN MOKIS, Secretary for the Department of Defence

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Anis J

2019: 18, 21 October, 8, 13 November

MOTION TO DISMISS – Order 12 Rule 40(1) – National Court Rules – alleged gross abuse of the court process – existing proceedings – whether current proceeding duplicity

MOTION TO SANCTION ADR AGREEMENT – Rule 12 - ADR Rules - whether alleged document sufficient to constitute an agreement within the meaning of Rule 12

PRACTICE AND PROCEDURES – whether faction of purported plaintiffs properly joined as parties to the proceeding – Order 5 Rules 2, 3, 4 and 8 – National Court Rules

Cases cited:

Belden Nama v. Justice Goodwin Poole (2015) N6121

Ted Taru v. Pacific MMI Insurance Ltd (2016) N6305

Totil Kupai v. Million Plus Corporation Ltd (2017) N6669

Counsel:

Ms M Wal, for the 188 Plaintiffs

Mr J Kupo, for the alleged 453 Plaintiffs

Mr D Levy, for the Defendants

RULING

13 November, 2019

1. ANIS J: Three (3) applications returned before this Court and they were heard on 18 and 21 October 2019. The first application was the defendants’ where they have sought, amongst others, dismissal of the proceeding. The second and the third applications were related and they were by the plaintiffs to, amongst others, enforce a purported mediation agreement.

2. This is my ruling.

RELEVANT BACKGROUND

3. Initially, a total of 522 retrenched servicemen from the Papua New Guinea Defence force commenced this action against the defendants. They claimed various alleged entitlements including ex-gratia, re-settlement allowances, hardship allowances, money in lieu of notices and money in lieu of furlong leaves and recreation leaves. The history of the case is quite a long one. For this purpose, the matter later progressed to mediation in May of 2009. Parties were directed to prepare and submit what was called Position Papers to the mediator. The mediation was stalled for some time because of various reasons including slowness by the defendants in submitting their Position Paper. I take the term Position Paper to mean or cover submissions on liability and quantum of the parties’ respective positions to the claim.

4. In May of 2010, the defendants recommenced negotiations with the plaintiffs. Various consultative meetings were held. The defendants’ team requested the plaintiffs to prepare and submit their quantum to the defendants to consider. Later, the National Executive Council (NEC) in its meeting No. 159/2010 approved payment based on the meetings, submissions and recommendations that had been put forward by the defendants to it. Consequently, the defendants, from a total of 522 plaintiffs in this proceeding, paid 334 plaintiffs plus other ad hoc groups as per the NEC decision.

5. The balance of the 522 plaintiffs, namely, 188 were aggrieved by the decision of the NEC or the defendants to exclude them out of the above payment. The 188 plaintiffs returned back to the National Court to pursue the matter. When that happened, another group of alleged ex-servicemen who had joined and involved themselves during the mediation negotiations, made appearances together with the 188 plaintiffs of this proceeding. Mr Kupo has since been appearing on behalf of these persons who are 453 or 454 in total.

6. On 1 April 2015, this Court made the following orders:

1. The plaintiffs are granted leave to discontinue this proceedings in place of:

(i) WS No. 1503 of 2014 – Joseph Kupo&Ors v. The State and Ors;

(ii) WS No. 316 of 2015 – John Kiriniam&Ors v. The State and Ors; and

(iii) WS No. 1507 of 2015 – Noah Kimai& James Nahshon v. The State and Ors.

2. All the Orders and directions concerning the question of quantum shall remain current and issued under the 3 WS proceedings above.

3. The 3 WS proceedings in term 1(i), (ii) and (iii) shall come before Kandakasi J on 24th April 2015 at 9:30am.

7. The defendants were aggrieved and so they appealed the said decision to the Supreme Court. The appeal was heard on 29 June 2016. On 4 May 2018, the appeal was upheld. The Supreme Court quashed the National Court’s decision of 1 April 2015. The Supreme Court held that the respondent’s notice of motion of 19 March 2015, which had been pending before the trial Court on 1 April 2015, was not heard and considered by the trial Court. As such, it held that the defendants’ right to be heard was breached. In its order, the Supreme Court ordered the matter to be referred back so that the said pending application may be heard before a different judge. The Supreme Court held and I quote in part,

The appeal is allowed.

The orders of the National Court made on 1 April 2015 are quashed.

The matter is remitted back to the National Court before a judge other than then judge whose orders are the subject of this appeal;

Each of the following proceedings shall be assigned to a judge other than the judge whose orders are the subject of this appeal;

(a) WS No. 1503 of 2014 – Joseph KupoOrs –v- The State &Ors;

(b WS N0. 316 of 2015 – John Kirininam –v- The State &Ors; and

(c) WS No. 1507 of 2014 – Jonah Kimai& James Nahshon–v- The State and Ors

The appellants are at liberty to re-list their amended notice of motion filed on 19 March 2015 in the proceeding below.

8. The matter returned back to the National Court. On 13 May 2019, this Court dismissed the defendants’ notice of motion of 19 March 2015 for want of prosecution. The notice of motion had sought orders to essentially dismiss the proceeding on the basis that this Court was functus officio. The defendants had wanted or argue, amongst others, that they had already paid K2.5 million to the 188 plaintiffs pursuant to a Consent Order of 3 December 1993.

9. Let me now deal with the 3 applications.

THE 3 MOTIONS

10. The motions before this Court may be summarized as follows. The first was filed by the defendants on 19 June 2019. The main relief they seek is to dismiss the entire proceeding on the basis of gross abuse of the process, that is, pursuant to Order 12 Rule 40(1) of the National Court Rules.

11. The plaintiffs filed two (2) motions which are similar in nature. The motion by the 188 plaintiffs was filed on 18 September 2019. The other motion was filed earlier by a group of persons totaling 453, who are represented by Mr Kupo, on 9 September 2019. The main relief the plaintiffs seek in the two (2) motions is for this Court to enforce a purported ADR agreement which they claim exists between the defendants and the plaintiffs. They are seeking the relief pursuant to Rule 12(2)(a) and (3) of the Accreditation, Regulation and Conduct of Mediators Rules 2010 (ADR Rules).

PRELIMINARY ISSUE

12. It was not until towards the conclusion of the submissions that I had asked Mr Kupo and Ms Wal of how it was that Mr Kupo’s group of 453 persons were joined as part of the plaintiffs in this proceeding. The response I received, I must say, was surprising.

13. Ms Wal informed the Court that she was unable to assist on the issue of joinder and she said that that was a matter for Mr Kupo to answer for those persons that he claims to represent. Mr Kupo is a lay person. But I note that he has involved himself in the matter for decades now and as such appears to have a clear understanding of its history. Having said that, he has not assisted the Court to say how he and the group that he represents came to be as parties to this present proceeding.

14. It later became clear that Mr Kupo’s group which comprised of the 453 persons, appeared to exist after the matter had been referred to mediation in 2009. They appear to be part of the various groups of persons who had attempted negotiations with the defendants. As such and when the negotiations failed, they also appeared with the 188 plaintiffs in the National Court on various occasions. I note that their representation or status as a party to the proceeding has never been raised in the earlier proceedings. The defendants’ counsel also question their appearance in this proceeding. Counsel submitted that the defendants were at lost as to how Mr Kupo and his group have purportedly joined into this proceeding. Counsel also raised concern that their exact numbers appear to change from time to time.

15. This is the National Court. The governing rule for this Court is the National Court...