Marago Pate for and on behalf of himself and on behalf of the Tuguba Pate Clan and Others whose names appear in Schedule A and Hela Aramapima Association Inc v Hon Nixon Duban, as Minister for Petroleum & Energy and the Independent State of Papua New Guinea and ESSO Highlands Limited (2020) N8277

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 24 April 2020
• Court: National Court
• Citation: (2020) N8277
• Docket Number: OS No 341 of 2015 (COMM)
• Year: 2020
• Judgement Number: N8277

Full Title: OS No 341 of 2015 (COMM); Marago Pate for and on behalf of himself and on behalf of the Tuguba Pate Clan and Others whose names appear in Schedule A and Hela Aramapima Association Inc v Hon Nixon Duban, as Minister for Petroleum & Energy and the Independent State of Papua New Guinea and ESSO Highlands Limited (2020) N8277

National Court: Anis J

Judgment Delivered: 24 April 2020

N8277

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No. 341 of 2015 (COMM)

BETWEEN

MARAGO PATE for and on behalf of himself and on behalf of the Tuguba Pate Clan and Others whose names appear in Schedule A

First Plaintiffs

AND:

HELA ARAMAPIMA ASSOCIATION INC.

Second Plaintiff

AND

HON. NIXON DUBAN, as Minister for Petroleum & Energy

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

AND

ESSO HIGHLANDS LIMITED

Third Defendant

Waigani: Anis J

2020: 20th March & 24th April

NOTICE OF MOTION – application to dismiss proceeding – Order 12 Rule 1 of the National Court Rules and section 16(1) of the Frauds and Limitations Act 1988 – time bar and abuse of process – alternative arguments for dismissal – Order 8 Rule 27(1)(a)(b) and Order 12 Rule 40(1)(a)(b) and (c) of the National Court Rules – competency arguments – alleged want of name of lawyer in the notice of motion - alleged naming of law firm in the notice of motion instead of name of lawyer – Order 4 Rue 49 (10) – National Court Rules – alleged want of pleading of the ground namely section 5 notice under the Claims by and Against the State Act 1988 – Order 4 Rule 49(8) – National Court Rules -- admissions to section 5 notice not being given – want of evidence of 5 notice being given under the Claims By and Against the State Act – exercise of discretion

Cases cited:

Muriso Pokia v. Mendwan Yallon (2014) SC 1336

Manorburn Earthmoving Ltd v. State (No.2)(2008) N3287

State and 3 others v. Brian Josiah and 80 others (2005) SC792

Soa Gabi & The State v. Kusap Nate and Ors (2006) N4020

Joe Kerowa v. MVIL (2010) SC 1100

Brian Josiah v. Steven Raphael (2018) SC1665

Asiki v Zurenouc, Provincial Administrator (2005) SC797

State v Downer Construction (PNG) Ltd [2009] SC979

Kathrine Mal v Commander, Beon Correctional Institution (2017) N6710

Boochani v State (2017) SC1643

Frederick Martins Punangi v Sinai Brown (2004) N2661

Jashim Jashim v Minister for Immigration (2018) N7187

Counsel:

Mr B Lakakit, for the Plaintiffs/Respondents

Nil appearances, for the First and Second Defendants

Mr M Tumul, for the Third Defendant/Applicant

RULING

24th April, 2020

1. ANIS J: On 20 March 2020, I dealt with the third defendant’s (defendant) application to dismiss the proceeding. The application was contested. I reserved my ruling thereafter to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. Briefly, the plaintiffs filed this proceeding on 18 June 2015. They seek various declaratory orders, that is, essentially challenging the legality of the PNG LNG Gas Agreement of 22 May 2006 and the Umbrella Benefits Sharing Agreement of 23 May 2009. These agreements were signed in regard to the PNG Liquefied Natural Gas project in the Hela Province in Papua New Guinea.

MOTION

4. The defendant’s notice of motion was filed on 30 August 2018 (application). Two main relief are sought in the application. The first is made pursuant to Order 12 Rule 1 of the National Court Rules (NCR) and section 16 of the Frauds and Limitations Act 1988 (F&L Act). The defendant submits that the proceeding should be dismissed because it is time barred and therefore it was an abuse of process to commence the proceeding in the first place. The second main relief sought is made pursuant to Order 8 Rule 27(a) and (c) and Order 12 Rule 40(1)(a)(b) and (c), of the NCR. The defendant submits that the proceeding should be struck-out because it does not disclose a reasonable cause of action, that it is frivolous and vexatious, and that it is an abuse of court process.

5. In regard to the second relief, the defendant states various reasons for seeking dismissal of proceeding. One of the reasons is this. The defendant submits that the plaintiffs had failed to give a section 5 notice under the Claims By and Against the State Act 1988 (CBASA) before they filed this proceeding. I note that a good amount of time was spent by both counsel in addressing that. I will therefore address that in the earlier part of my judgment. But before I do so, let me firstly address the competency arguments.

PRELIMINARIES

6. The plaintiffs raise two competency arguments. Firstly, they argue that the application was not signed by the lawyer whose name appears on it, but rather, that it was signed under the name of the law firm Allens. They argue that that is in breach of Order 4 Rule 49(10) of the NCR. Their second competency argument relates to the second relief. The plaintiffs submit, and I quote in part, “The Notice of Motion is not premised on Section 5 of the Claims By and Against the State Act 1996. The applicant is required to particularize and or plead in the Notice of Motion that the Application is made pursuant to Section 5 of the Claims By and Against the State and merely pursuant to Order 12 Rule 40 is too general. Order 4 Rule 49(8) of the National Court Rules requires that the legal foundation for such application must be concisely referenced so as to invoke the Courts jurisdiction to grant the orders sought. Therefore, it failed to comply with Order 4 Rule 49(8) of the National Court Rules.”

7. The defendant argues that its application is competent. In relation to the argument concerning the signing of the application, Mr Tumul submits that the signature in the application was his. He submits that it was he that had signed the application in place of or for David Hill, before it was filed. He submits that he had indicated that by the use of the word “for” which he had hand-written next to the name, ‘David Hill’. He submits therefore that the application was not signed under the name of or by the law firm as alleged by the plaintiffs.

8. Let me deal with the first argument. Order 4 Rule 49(10) states, and I quote:

10. Signing of Motions.

The Motion must be signed by the lawyer or applicant and the name of the lawyer or party must appear below the signature. The Motion cannot be signed by the Law firm as it is incapable of having a signature.

……

9. I have considered the submissions of counsel. At the hearing, I note that Mr Tumul appeared to have clarified the confusion concerning the signature on the application. It was Mr Tumul that signed off on the application and not David Hill, that is, despite David Hill’s typed out name appearing below Mr Tumul’s signature. But that aside, I note that there appears to be a misstatement of a fact that exists with this argument. Let me explain. The application does not only state the name of the law firm as alleged. Rather, it pleads the name of the lawyer which is ‘David Hill’ together with the name of the law firm, Allens. It is therefore not correct, in my view, for the plaintiffs to claim that the application only had the name of the law firm and not the name of the lawyer. That said, let me now deal with the argument. The application in this case was signed off by a lawyer, namely, Mr Tumul. He signs off with a hand-written notation that reads, for, which is then followed by a typed out words that read, David Hill of Allens Lawyers for the Third Defendant. So the name of the lawyer is actually stated in the application. The fact that Mr Tumul or a lawyer had to sign off for another lawyer on the application or a notice of motion, is not, in my view, an uncommon practice, particularly with larger law firms. Given the large number of lawyers employed, a single file for a matter may be dealt with by several lawyers in the firm, who may sign or witness court documents or appear in Court, for their client or clients. Sometimes, a lawyer having carriage of the file may have the permission from the managing partner to sign-off on a document on his or her behalf or on behalf of the firm, but of course, that would be an internal matter for the said law firm which is beyond the argument that is raised before me. With that, I must say that the application is not defective, that is, it does not breach Order 4 Rule 49(10) of the NCR. However, let me say this. If for example, Mr Tumul simply writes down the name Allens or if only the name Allens is typed out at where the signature should be on the notice of motion, then the notice of motion would, in my view, be regarded as defective or that it would be in breach of Order 4 Rule 49(10) of the NCR. The other example where I could find the application defective or incompetent under Order 4 Rule 49(10) is if the person that signs the notice of motion cannot be identified, or if he or she is not a lawyer in the employ of the law firm that acts for the applicant or the party concerned.

10. I therefore dismiss the plaintiff’s first competency argument.

11. I turn to the second argument. Order 4 Rule 49(8) states, and I quote,

8. Form of Motions.

All...