SCA No. 156 of 2015; Thomas Barry as the Executive Chairman of the Highlands Highway Landowners Association Inc. and 3227 others v Joel Luma In His Capacity As Secretary For Department Of Works And Mark Gunua As Simbu Provincial Works Manager and Grand Chief Sir Michael. T. Somare as Prime Minister and The Independent State of Papua New Guinea (2017) SC1639

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Yagi & Ipang, JJ
• Judgment Date: 03 November 2017
• Court: Supreme Court
• Citation: (2017) SC1639
• Year: 2017
• Judgement Number: SC1639

Full Title: SCA No. 156 of 2015; Thomas Barry as the Executive Chairman of the Highlands Highway Landowners Association Inc. and 3227 others v Joel Luma In His Capacity As Secretary For Department Of Works And Mark Gunua As Simbu Provincial Works Manager and Grand Chief Sir Michael. T. Somare as Prime Minister and The Independent State of Papua New Guinea (2017) SC1639

Supreme Court: Kirriwom J, Yagi & Ipang, JJ

Judgment Delivered: 3 November 2017

SC1639

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 156 of 2015

BETWEEN:

THOMAS BARRY as the Executive Chairman of the Highlands Highway Landowners Association Inc. and 3227 others

Appellant

AND:

JOEL LUMA IN HIS CAPACITY AS SECRETARY FOR DEPARTMENT OF WORKS

First Respondent

AND:

MARK GUNUA AS SIMBU PROVINCIAL WORKS MANAGER

Second Respondent

AND:

GRAND CHIEF SIR MICHAEL. T. SOMARE AS PRIME MINISTER

Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Kirriwom J, Yagi & Ipang, JJ

2017: 28th August & 3rd November

SUPREME COURT APPEAL – Appeal against the National Court decision refusing to set aside its own ex-parte decision – Ex-parte decision dismissing the proceedings.

SUPREME COURT APPEAL – the order by the National Court is a final order – it cannot be set aside by Notice of Motion.

Facts

This is an appeal against a decision of a primary Judge refusing to hear and determine a notice of motion filed by the appellants to set aside an ex-parte order.

In proceedings WS No. 1168 of 2009 filed in the National Court, the appellants claim, amongst others, compensation of K68.7 million for alleged damage to structural improvements and other properties as a result of road re-construction works carried out under the National Government’s Highlands Highway Rehabilitation Program. The appellants claim they are customary landowners of the Simbu Section of the Highlands Highway road corridor.

The respondents had obtained an ex parte order dismissing the entire proceeding. Consequently the appellants filed a notice of motion under Order 12 Rules 8(1), (2) and (3) of the National Court Rules seeking an order to set aside the ex parte order. When the appellants attempted to move their motion the primary Judge refused to hear their application citing lack of jurisdiction.

Held:

The ex-parte order dismissing the National Court proceedings for disclosing no reasonable cause of action is a final order and cannot be set aside by way of notice of motion made pursuant to Order 12 Rule 8 of the National Court Rules.

Cases Cited

Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153

James Aiwasi v Monty Derari – Oro Provincial Administrator & Ors (2017) N6602

Richard Dennis Wallbank & Jeanette Minifie v Independent State of PNG [1994] PNGLR 78

Christopher. M. Smith v Ruma Constructions (2002) SC695

Thomas Rangip v Peter Loko - City Manager, NCD & Others (2009) N3714

Peter Malt v. Dean Queen & Christian Union Mission Inc. (2009) N3577

Harry Tovon v Carl Malpo (2016) N6240

Rea Joseph v Manau Sereva & Ors (2011) SC1152

Counsel

G. Kaore, for the Appellant

W. Mapiso, for the Respondent

1. BY THE COURT – This is an appeal against the whole judgment of the National Court given on the 11th of November 2015, in refusing to set aside ex-parte orders on application made pursuant to notice of motion filed on the 15th of June 2015. Leave to appeal was granted on 11th of May 2016.

2. We heard the appeal on 28th of August 2017 and reserved our decision and this is our decision. A summary of the decision was delivered orally in Court on 03rd November 2017 and the parties were informed that we will provide the full written reasons shortly thereafter and have the judgment published.

GROUND OF APPEAL

3. The notice of appeal filed on the 13th May 2016, contained only one ground of appeal. It states;

“Whether an ex-parte Order dismissing the Appellant’s proceedings under Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules is a final Order that it cannot be heard by a motion to reinstate the proceedings again in the National Court.”

ISSUE

4. Whether the National Court has the jurisdiction to set aside an ex-parte order dismissing a matter for not disclosing a reasonable cause of action in law and for being frivolous and vexatious pursuant to Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules.

BACKGROUND

5. (i) By way of brief background, in or about 2006 the National Government re-initiated the project known as Highlands Highway Rehabilitation Program (HHRP) which was aimed at widening and improving the conditions of the Highlands Highway. The appellants are the customary landowners from Chimbu Province who live along the 40 meter corridor of the Highlands Highway of the Chimbu Section. So, in order to implement this rehabilitation project, the Government allocated funding by way of gratuitous payment to landowners for the removal of plants and structures along the corridor of the Highway to avoid unnecessary disturbances and interferences.

(ii) The valuation and assessment of the plants and structural improvements were done prior to the removal of the improvements and the commencement of the work.

(iii) Based on the assessment and the evaluation reports, the National Government paid total of K54 million to the Landowners in the Simbu Province alone.

(iv) The HHRP was put to stop because of allegation that various bureaucrats in Waigani and Simbu conspired to defraud the State of the money and that most landowners missed out on the payments.

(v) On the 15th September 2009, the appellants filed proceedings in the National Court claiming compensation that their planted and structural improvements were valued and assessed at K68.7 million. However, they were not paid. They then issued the proceedings to recover the assessed amount of K68.7 million.

(vi) On 28th April 2015, the respondents filed an application under Order 12 Rule 40(1) and Order 8 rule 27(1) of the National Court Rules to dismiss the entire proceedings (WS. No. 1168 of 2009) on the grounds that the proceedings did not disclose a reasonable cause of action based on law and, moreover, the proceedings are frivolous and vexatious.

(vii) On the 06th June 2015 the National Court heard the application ex-parte and upheld the application and dismissed the entire proceedings.

(viii) On the 11th June 2015, the appellants filed a notice of motion to set aside the dismissal order.

(ix) On the 11th November 2015, the trial judge relying on Order 12 Rule 8 (4) of the National Court Rules refused to hear the application on the basis that the rule does not grant power to the National Court to set aside an order for the dismissal of proceedings.

Appellants’ Argument

6. The appellants’ argued that their motion filed on the 11 June 2015, to set aside the ex-parte order of 6 June 2015 was never heard because the primary Judge was of the view that the facts of the case and the law fell within all fours in respect to a decision made in a similar case, namely, James Aiwasi v Monty Derari – Oro Provincial Administrator & 2 Ors - W.S No. 1291 of 2007, (now published and numbered N6602) where the plaintiff in a similar situation unsuccessfully sought to reinstate the case that was dismissed for want of prosecution. So based on the James Aiwasi case (supra), the primary Judge dismissed the appellants’ motion under Order 12 Rule 8 (4) of the National Court Rules.

7. Counsel for the appellants relied on the decision of Hartshorn J in Thomas Rangip v Peter Loko - City Manager, NCD & Others (2009) N3714 to argue that the primary Judge was wrong in law in refusing to hear the appellants’ application to set aside the ex parte order. It is submitted the decision in Thomas Rangip (supra) is correct law in terms of the power of the National Court under Order 12 Rule 8 to set aside an ex parte order dismissing the proceeding.

Respondents’ Argument

8. The Respondents argued that this appeal should be dismissed for being incompetent and without merit. Thus, the Respondents argued that:

(i) The Notice of Appeal does not plead the ground of appeal in a cause of action on appeal. They therefore argued the appeal is not properly before the Supreme Court. Respondents relied on Order 7 Rule 9 (c) (e) and Rule 10 of the Supreme Court Rules and PNGBC v Jeff Tole (2002) SC 694 and Anderson...