Richard Maribu for Molage Clan – Gomlongon Village Siassi v Wape Pundiap – PNG Forest Authority Area Manager Momase Region Lae and Others

• Jurisdiction: Papua New Guinea
• Judge: Dowa J
• Judgment Date: 30 March 2022
• Neutral Citation: N10063
• Citation: N10063, 2022-03-30
• Counsel: Plaintiff in Person,L. Vava, for the First & Second Defendants,B. Tomake, for the Third Defendant
• Hearing Date: 21 March 2022,30 March 2022
• Docket Number: WS 83 OF 2019
• Court: National Court

N10063

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 83 OF 2019

Between

Richard Maribu for Molage Clan – Gomlongon Village Siassi

Plaintiff

v.

Wape Pundiap – PNG Forest Authority Area Manager Momase Region Lae

First Defendant

and

Forest Minister and PNG Forest Authority

Second Defendant

and

Independent State of Papua New Guinea

Third Defendant

and

AWI Ting – Aset Meriah Logging Ltd Onwers & Managing Durector of Aset Meriah Logging Ltd

Fourth Defendant

and

Asset Meriah Logging Ltd

Fifth Defendant

and

David Alingou – Chairman Umboi Timber Investment (UTI) Ltd

Sixth Defendant

and

Umboi Timber Investment (UTI) Ltd

Seventh Defendant

Lae: Dowa J

2022: 21^st & 30^th March

PRACTICE AND PROCEDURE — application for default judgment — considerations apply — failing to meet the prerequisites of default judgment-application refused.

PRACTICE ND PROCEDURE-proceedings incompetent for lack of representative capacity — need for potential plaintiffs be named in originating process-Order 5 Rules 3 and 13 of the National Court Rules —

PRACTICE AND PROCEDURE — application for dismissal of proceedings for disclosing no reasonable cause of action — Order 12 Rule 40 of the National Court Rules-pleadings cause confusion, prejudice, and embarrassment — proceedings summarily dismissed

Cases Cited:

Magiten v Beggie (2005) N2880

Giru v Muta (2005) 2877

Maki v Dokup (2012) N4838

Bala Kitipa v Vincent Auali (1998) N1773

John Kunekene v Michael Rangsu (1999) N1917

Tiaga Bomson v Kerry Hart (2003) N2428

Eliakim Laki v Morris Alaluku (2000) N2001

Kunton v Junias (2006) SC929

Mapmakers v BHP (1987) PNGLR 78

Simon Mali v The State (2002 SC690)

Tigam Malevo v Keith Faulkner (2009) SC960

Jackson Tuwi v Goodman Fielder International Limited (2016 SC1500

Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007

PNG Forest Products v State (1992) PNG LR84–85

Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8

Wabia v BPPetroleum (2009) N4337

National Provident Fund Board v Maladina & Others (2003) N2486

Ruhuwamo v PNG Ports Corporation (2019) N8021

Counsel

Plaintiff in Person

L. Vava, for the First & Second Defendants

B. Tomake, for the Third Defendant

Richard Maribu: Plaintiff in person

Vava Lawyers: Lawyer for the First Defendant

Solicitor General: Lawyer for the Second & Third Defendant

RULING

30^rd March 2022

1. Dowa J: This is a ruling on two competing applications by the parties.

Plaintiff's Notice of Motion

2. The Plaintiff applies to the Court, seeking default judgment under Order 12 Rules 25 & 27 of the National Court Rules.

Defendant's Notice of Motion

3. The First and Second Defendants apply for dismissal of proceedings pursuant to Order 12 Rule 40 (1) of the National Court Rules.

Brief Facts

4. The Plaintiff is a leader of Molage Clan, Gomlongon village, Siassi, Morobe Province. He says he represents his clan in these proceedings. He is seeking damages for personal injury as well as damages for environmental damage done to their customary land because of illegal logging by the fifth Defendant taking place at Zinoto in block 3, Umboi timber project area, Siassi. Morobe Province. The Plaintiff has also made allegations against PNG Forest Authority for breach of its statutory duties under the PNG Forestry Authority Act and the Environment and Conservation Act.

Issues

5. The issues for consideration are:

a) Whether the Plaintiff is entitled to default judgment.

b) Whether the Plaintiff's proceedings be dismissed for being frivolous and vexatious, disclosing no reasonable cause of action.

Plaintiff's Application

6. The Plaintiff seeks default judgment, by Notice of Motion filed 9^th December 2021 against all the Defendants pursuant to Order 12 Rule 25 of the National Court Rules. Rule 25 reads:

“Default

A defendant shall be in default for the purposes of this Division.

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to his his defence has expired but he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.”

7. The law on applications for default judgment under Order 12 Rule 25 of the National Court Rules is settled. The Court has a discretion whether to grant or not in the circumstances of each case. Refer: Magiten v Beggie (2005) N2880, Giru v Muta (2005) 2877, Maki v Dokup (2012) N4838, Bala Kitipa v Vincent Auali (1998) N1773, John Kunekene v Michael Rangsu (1999) N1917, Tiaga Bomson v Kerry Hart (2003) N2428, Eliakim Laki v Morris Alaluku (2000) N2001 and Kunton v Junias (2006) SC929. A study of the cases listed above show a wide range of considerations apply when exercising discretion which are:

1) Whether the statement of claim raises serious allegations of fraud or deceit.

2) The extent of default by the defendants.

3) Whether the defendant appears to have a good defence.

4) Whether the pleadings are vague, ie, where the statement of claim discloses no reasonable cause of action,

5) Whether the Plaintiff has prosecuted his case diligently

6) Whether the entry of judgment would prejudice the rights of co-defendants

7) Whether the interests of justice would be preserved by the entry of default judgment.

8. The Plaintiff filed several affidavits, some of which are relevant for this application. The evidence shows all the defendants were served copies of the original writ of summons. No specific details and proof of service were filed. This may be because the Plaintiff is not being represented by a lawyer. The first, second and third defendants filed their notice of intention to defend on 8^th July 2020 but no defence. The fourth and fifth Defendants filed their Notice of Intention to Defend on 8^th August 2021but no defence being filed. The sixth and seventh Defendants did not file any Notice of intention to Defend nor a Defence. I note at this juncture that the sixth and seventh defendants may not have been properly served with copies of the writ. Copies of the writ were left with Sema Levi Alan and Timothy Mais respectfully with no details of their official capacities or authority to receive service on behalf of the sixth and seventh Defendants.

9. The application for default judgment is opposed by the second and third defendants. I have carefully considered the Plaintiffs application and the submissions of parties. Although the defendants have not filed their respective defences, I am not satisfied that this is an appropriate case for entry of default judgment. I have several reasons for holding this view.

10. Firstly, the Plaintiff gave no warning to the Defendants of his intention to apply for default judgment especially after some of the defendants have filed their Notice of Intention to Defend in accordance with the procedural requirement as decided in the case; Mapmakers v BHP (1987) PNGLR 78.

11. Secondly, the amended statement of claim was filed on 8^th October 2021. Copies of the amended writ were served on the first and second defendants on 9^th November 2021. The third defendant was served copies of the Amended statement of claim on 17^th December 2021. The fourth and fifth defendants were served by email and the sixth and seventh defendants were not served the amended statement of claim. The Plaintiff filed the Notice of Motion on 9^th December 2021 without appropriate warning. In the circumstances, there is no clear evidence of default. Even then the extent of any delay and default is not unreasonable. As for the second and third defendants, they have about 90 days from date of service to file their defence under section 9 of the Claims by and Against the State Act. The third defendant submits that the Notice of Motion was filed even before they were served a copy of the amended statement of claim. The application is immature.

12. Thirdly, the second and third defendants raised the issue of representative capacity of the Plaintiff. The Plaintiff pleaded in the statement of claim that he represents the Molage Clan, Gomlongon village, Siassi, Morobe Province. Under Order 5 Rules 3 and 8 of the National Court Rules, the Plaintiff is required to have all the names of the Plaintiffs included in a schedule and have their written consent giving him authority to act. This has not been done.

13. Fourthly, the pleadings are vague and convoluted. It contains evidence and submissions. It does not disclose a reasonable cause of action against each of the defendants. I will say more later in my judgment when ruling on the first and second defendants' Motion.

14. Finally, the interests of justice will not be best served if default judgment is allowed to be entered against the defendants.

15. For these reasons, the Plaintiff's application for default judgment is refused.

The First and Second Defendants' Application

16. The First and Second Defendants seek dismissal of the Plaintiff's proceedings under Order 12 Rule 40(1) and Order 8 Rule 27 of the National Court Rules on the following grounds:

a) lack of legal representative capacity of the Plaintiff

b) disclosing no reasonable cause of action

c) pleadings in the claim tend to cause prejudice, embarrassment or delay in the proceedings and is an abuse of the process.

Lack of Representative Capacity

17. Mr. Vava of counsel for the first and second defendants submits that the Plaintiff, Richard Maribu, lacks legal capacity to represent his clan in this class action. Ms Maliaki, counsel for the third Defendant supports the application. Ms Maliaki submits that in any class action it is a requirement for a legal representative to include the names of all persons he represents to have their consent endorsed on the statement of claim and that in this case the Plaintiff has not done that.

18. The Plaintiff opposed the...