National Court of Papua New Guinea

6. ҈&I first irst deal weal with issue no. 1.

I should aoint out that I ht I heard both applications together, i.e the application to join and the application to set aside because the events that occurred are all intned, that it was necessary for me to hear submissions on thon the application to join, at the same time as the application to set aside. There were no objections raised by plaintiff and defendants counsel in relation to the course taken by Beecroft’s counsel.

Application to join

7. Should Beecroft be added as a party for the purposes of this motion?

8. &ـ Order 5der 5 r. 8 r. 8 (1) of the National Court Rules (‘8217;the pion onder.eads;

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"8.i>"8. Addi Addition tion of paof parties.

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

..."

9. ;ټBefore dore discussscussing the law on joinder, it is necessary that I set out the undisputed facts relating to the chronology of events in these procee and oft’s association with the land in questionstion bein being Allotment 44 Section 7 Granville (‘the land’). I will not rely on facts that are disputed and that are the subject of other court proceedings involving the same parties.

10. isowhronclogy of events whts which are not disputed, which are taken from the court file and which speak for themselves.

CHRONOLOGY

11. Shoeecroft be joined in then the proceedings?

12. Tinciples on joinder are were well established in this jurisdiction and the common law jurisdiction. They wercussehis H Justice Kandakasi in Luna Pakomeyu v. James Siai Wamo (2004) N2718 where he e he enuncinunciated ated princprinciples adopted by Justice Sakora in AGC (Pacific) Limited v. Sir Albert Kipalan and 4 others (24/2/00) N1944. These principles are;

1. Whether the applicant has sufficient interest in the proceedings;

2. Whether the applicants joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated on.

13. ҈ Beecroft wishewishes to join the proceedings so it can then apply to set aside consent orders of 15 December, 2006. Thrders read as follows;

"CONSENT ORDER

THE COURT ORDERS BYRS BY CONSENT OF PARTIES:-

1. The first plaintiff’s title and/or interest in respect of the property described as Allotment 44, Section 7, Granville, National Capital District being a State business lease, Volume 106 Folio 167 is given full force and effect of the time the first plaintiff’s title was registered, being on the 15th December 1987, to the date of issuance of the official owners copy of the State lease issued pursuant to the Land Registration Act and/or Land Act after it has been shown to the satisfaction of the Registrar that registered proper copies of the State Lease has been lost or destroyed.

2. Any other title or subsequent title or interest granted, issued, assigned or transferred or charged in relation to Allotment 44, Section 7, Granville, Port Moresby, National Capital District is declared void and such grant, issuance, assignment or charged stands cancelled from the date of this order.

3. The defendants or their/it/his servant(s) be restrained from dealing with or issuing any other title in respect of the land or property described as Allotment 44, Section 7, Granville, Port Moresby, being State lease Volume 106Folio 167 unless the plaintiff’s title is cancelled or revoked in accordance with the laws of Papua New Guinea.

4. The orders be abridged.

5. Each party pay their own costs.

Dated the 15th day of December 2006.

BY THE COURT

.........(signed)..............

REGISTRAR"

14. ction before thr court on w on which the original consent orders were obtained is that filed by Patterson Lawyers on 15 September, 1996. The relief sought in the Writ of Summons and Statement aim iy neahe same as t as the cohe consentnsent orders of 16 December, 2006.

15. &#160facts set eut herein aein are undisputed. After the grant to it of the State lease to the land, Beecroft continued to pay the annual land rent fee of K40,000.00use iieveding on official documentation received ived from from the Othe Office of the Registrar of Titles and gazettals that it was the holder of the State Lease to the land, and had been since April, 1997. On 16 March, 2000, Beecroft was issued with a Notice to Show Cause why its lease should not be forfeited. By notice in the National Gazette No. G. 49 dated 8 May, 2000, the Minister for Lands purported to forfeit the lease held by Beecroft. Beecroft continued to pay the annual fee of K40,000.00 and continued to correspond with the Department of Lands as to the improvement covenants on the Lease. On 16 March, 2000, Beecroft was issued with a Notice to Show Cause why its lease should not be forfeited. Land Rent payment was still up to date.

16. &##160;tice in N in Nationational Gazette No. G. 49 dated 8 May, 2000, the Minister for Lands forfeited the Lease held by Beecrofts was Beecroft commenced proceedings in the National Court pursuant to s. 142 of the Lani>Land Act 1996 by filing a Notice of Appeal seeking to have the purported Notice of Forfeiture revoked as having no legal basis. On 5 April, 2001, the appeal was heard by his Honour Justice Kandakasi who found the forfeiture of Beecroft’s lease to be without any good basis and not according to law. He made orders revoking the forfeiture and awarding costs to Beecroft on a solicitor/client basis. These orders were entered on 22 August, 2001.

17. &Beecronticued tued to pay pay annual land rent to the Department of Lands.

18. &#y notn N iionational Gaze Gazette No. G. 188 dated 26 September, 2006, the Registf Titave n that hhat he inte intendedended to issue PIHL official copy of Lease over the property. Similar notice was published in the Post Courier. Then followed series of correspondence between the Registrar of Titles and Gadens Lawyers in relation to the Registrar’s actions.

19. ;The ology of evof events tnts table also demonstrate Beecroft’s later involvement in ascertaining its status over the lease.

20. Mr B referred the court to t to several authorities which dealt with the issue of when a party can be joined. He submitted that the test for the proper joinder of an applicant under O. 5 r. 8 has the st of ber of casescases most most of w of which deal with the test of "necessity" under O. 5 r. 8 (1) (b) which has been given a narrow construction in those cases. These were that "the applicant... has an interest in the matter the subject of the proceedings and if relief sought is granted, that it will affect that interest" (Umapi Luna Upakomeyu (supra); that "...the court retains the discretion to join or severe (if already joined) if the interests of justice demands so" (AGC (Pacific) Ltd (supra); where an applicant seeks to join an associate, the court held that if the claim against the defendant is possible, that it "ought" to be joined (Pinpar Development Ltd v. TL Timber Development Ltd (1999)) N 1857;

21. & That if a part party wishes to join the proceedings as an intervener, against the wishes of the plaintiff, that in ofor it to be "necessary" to join a party, that party’s legal rights had to be o be affected. (Donigi v. the State [1991] PNGLR 376) or persons "directly affected" should be joined (Jack Nou v. Michael Cherake (2004) N 2539).

22. Obvi, the consent orders hars have effectively cancelled Beecroft’s legal title to the land. I find that it is necessary that Beecroft be joined for the purposes of the hearing of the motion for the court to consider the circumstances under which the consent orders were taken out and to the extent, whether the consent orders were properly taken out.

23. I order that Beecroft No. y0 Pty Ltd join these proceedings as a third party. I also order abridgement of time as well.

24. then takes me t the hearinearing of the application to set aside consent orders.

Application to set aside consent orders.

25. &#16Brook forroeecroft subt submits that the consent orders should be set aside because proceedings on which these orders were taken out are non-existent having been dismissed some years ago.

260;&##160;< M160;Mr Bror Brooks ss that that there were no proceedings on foot at the time the consent orders were made. He submits that the Writ of Summons was struck out in 1996 and that therefore the consent orders were made on proceedings that were non-existent, that those orders are an irregularity and a nullity and should be set aside as of right.

27. &I havusedrthe cthe court furt file to ascertain whether orders were made for these proceedings to be struck out or dismissed.

160;& The court file shows that on 11 December, 1996, Justice Dohe Doherty erty strucstruck out Writ of Summons No. 906 of 1996 but allowed certain restraining orders to continue. These restraining orders were to continue to allow the plaintiff to file application for leave for judicial review to preserve the status quo and to remain until such time the plaintiff filed proceedings by way of judicial review. The proceedings for judicial review were filed as OS No. 48 of 1997.

29. Oebruary, 1997, leave was gwas granted to second plaintiff Dorado Pty Ltd for judicial review. These orders were entered on 17 Oc, 199note anotourt order of 25 March, 1998 entered on 15 April, 1998 in pron proceediceedings Ongs OS 48 S 48 of 1997 where leave was granted to the plaintiff for judicial review. These proceedings did not proceed any further. It appears the file may have been closed and archived.

30. ҈ Mr Brook’#8217;s submissions are also that the orders to strike out were later confirmed by his Honour Justice Salika on 21 March, 1997. Apart from the entered orders, the defendants’ lawyers also support thetion that there were no proo proceedings on foot, because WS 906 of 1996 was struck out. These are written submissions filed by Philip Ame Lawyers on 17 March, 1997, where Mr Ame stated and confirmed that proceedings WS 906 of 1996 were struck out by her Honour Justice Doherty (par. 1.5). Mr Ame also submitted that because proceedings WS 906 of 1996 was struck out that "...everything including the orders made under the Writ of Summons should not exist. Therefore, the very existence of the order against the defendant is without any cause of action and without any evidence at all." (see par. 2.5 of P. Ame’s written submissions). I will re-emphasize the relevance of these submissions later below.

31. ټ Justice Salikaalika’s orders of 21 March, 1997 were made after consideration of defendant’s motion (Mr Ame’s) seeking orders that thentiffe no cause of action because of her Honour’8217;s (Doherty .J) orders of 11 December,mber, 1996, and that no new proceedings had been instituted. His Honour found that when her Honour made her orders of 11 December, 1996, striking out the Writ of Summons, he said the effect of that was "...that there is no current action on foot insofar as this Writ of Summons is concerned." His Honour also directed the lifting of restraining orders that had remained after her Honour made the orders striking out those proceedings.
32. ټ As such, as atas at 21 March 1997, as far as proceedings WS 906 of 1996 were concerned:

1. the Writ of Summons in WS 906 had struck out in December 1996 1996 and no proceedings were on foot. This fact is not contested by the parties.; and
   
2. there were no restraining orders in place against the Department of Lands, Registrar of Titles or any of the other defendants preventing them from dealing with the State Lease as they saw fit;
   

100. because proceedings OS 48 of 1997 had already been commenced by PNGIHL, the effect of Justice Salika's ruling was that the file in WS 906 of 1996 was now closed.
     

33. For rs knnwn only to plaintlaintiffs counsel at that time, the Lawyers for the plaintiffs filed a Notice of Trial on 8 February, 1999. The Court endorsement forms on the Court file show that this m had befor Court on a on a few ofew occasiccasions after Justice Salika's Orders. The matter was stood over generally and trial dates vacated. Basically the matter was in abeyance for a decade and for whatever reason it did not come to the Court's attention that there were actually no proceedings on foot.

34. ;On 2ober, 2006 2006 Rageauageau Manua Kikira Lawyers filed a Notice of Change of Lawyers for the plaintiffs.

35. ـIn ber 20er 2006 the6 the plaintiffs new lawyerived procgs and and on 15on 15 Dece December, 2006 the parties to the proceedings agreed to the purported Consent Orders which were apparentlered s Honour Justice tice Los, Los, a few days before the Court vacation.

36. ټThect of t of these hese Consent Orders was to confirm the title to the land by PIHL and to declare void any title issued subsequent to the forfeiting of PNG leasApril 1995. As such, the consent Orders effectivectively caly cancelled Beecroft's title to the land.

37. ټBet contecontends thds that as registered proprietor of the State Lease in question since 1997, it was not approached to eithve itsent to the purported "Consent Orders" entered in WS 906 of 1996 on 15 December, ber, 2006,2006, or at least to make known its position to the court.

38. Was the nonsede orrop ply trly taken out by the parties?

39. &#NGIHLialit comy commencedenced proceedings WS 906 of 1996 by Writ of Summons on 13 September, 1996 seeking O thatLand and others be restrained from seeking tenders for the subject state lease and that the fore forfeitufeiture nore notice issued to it in respect of its previous lease was null and void. No claim was made in the Writ of Summons that any subsequent title such as that issued to Beecroft in April 1997 be declared void.

40. &&#160 if the Wrhe Writ of t of Summons was on foot, the terms of the Consent Orders were simply not available under the Writ of Summons because it was not pleaded. Pleadings in a civil claim p veryl role. They lay lay the fthe foundation for a claim and dictate the kind of evidence the parties can call and the grant of relief subject to evidence proving it.

41. ;A cohould not gnot grant aant a relief that has no foundation in the pleadings i.e Statement of Claim, even if there is evidence of it or in this case, agreement. (see Bruce v Oldhams Pres [19 ALL ERLL ER 287; 287; P Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938; London Passenger Transport Board v Moscrop [1942] 1 ALL ER 97)