N7257
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 517 of 2017

BETWEEN:

TUKUPA WALO LAND 
GROUP INC
Plaintiff

AND:

EXXONMOBIL PNG LIMITED 
formerly known as 
ESSO HIGHLANDS LIMITED
Defendant

Waigani: Hartshorn J.
      2017:  11th August,
 2018: 3rd April     

Application to dismiss proceeding

Cases Cited: 
Papua New Guinea Cases

James Geama v. OTML Shares in Success Ltd (2011) N4269
Mamun Investment Ltd v. Onda Koim (2015) SC1409
Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015 

Overseas Cases

H. Stanke & Sons Pty Ltd v. O’Meara [2007] SASC 246 

Counsel:

Mr. K. Makeu, for the Plaintiff
Mr. A. Mana, for the Defendant

3rd April, 2018

1. 	HARTSHORN J. This is a decision on a contested application to dismiss this proceeding.

Background

2. 	The plaintiff, Tukupa Walo Land Group Inc., seeks declaratory relief to the effect that amongst others, that it represents the Tukupa Walo Clan of Hides 4, Komo Magarima District, Hela Province, that the Tukupa Walo Clan are customary landowners of certain land and of a Special Agriculture Business Lease (SABL) over the land upon which the defendant’s Hides Gas Conditioning Plant has been built, and that the plaintiff and the Clan are entitled to compensation for the loss of the land. 

This application

3.	The defendant submits that the proceeding should be dismissed pursuant to Order 12 Rule 40 National Court Rules as:

a)	No reasonable cause of action is disclosed, the proceeding is frivolous or 	vexatious and is an abuse of the process of the court;

b)	This is the fourth attempt by or on behalf of the plaintiff to seek similar substantive relief;

c)	Although the plaintiff has an SABL over the subject land it is late in time and the land was not available for leasing: Ramu Nickel Ltd v. Minister for Lands & Ors (2007) N3116;

d)	The causes of action of the plaintiff are statute barred pursuant to the Frauds and Limitations 1988 and the Fairness of Transactions Act 1993.

4. 	The plaintiff submits that the proceeding should not be dismissed as:

a)	There have not been any hearings on the merits of the plaintiff’s case in the other proceedings;

b)	This proceeding concerns different causes of action to those in the previous proceedings;

c)	This proceeding is not time barred under the Fairness of Transactions Act 1993.

Consideration

5. 	The law concerning an application under Order 12 Rule 40 National Court Rules is well settled and does not require repetition here. I make reference to Kerry Lerro v. Stagg & Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. Further, notwithstanding all of the various judicial pronouncements since, the position is succinctly summarised in Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86. At 90-91 the Court of Appeal said:
“The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands, is insufficient, even if proved, to entitle the plaintiff to what he asks.”

Frauds and Limitations Act 1988
6.	 I consider first whether the plaintiff’s claim concerning its purported SABL is statute barred pursuant to s. 16(1) Frauds and Limitations Act 1988. Pursuant to the copy of the SABL in the evidence given on behalf the plaintiff, the SABL commenced on 30th August 2010 and was granted on 30th September 2010.
7. 	The plaintiff did not make submissions concerning whether its claim based upon the SABL was statute barred. I am satisfied that although the relief sought concerning and based upon the SABL is by way of declaration, it is founded on or based upon the purported grant of the SABL - a simple contract. The underlying basis for the plaintiff’s claim is therefore not in equity and so s.18 Frauds and Limitations Act 1988 does not apply. I refer in this regard to Mamun Investment Ltd v. Onda Koim (2015) SC1409 and H. Stanke & Sons Pty Ltd v. O’Meara [2007] SASC 246. As the plaintiff’s claim based upon the purported SABL is founded on simple contract and is brought after the expiration of six years commencing on the date on which the cause of action arose: 30th September 2010; the claim has been brought after the time permitted by s.16(1) Frauds and Limitations Act 1988, and is statute barred.
8. 	I consider whether the claim of the plaintiff concerning its entitlement to compensation by virtue of representing the customary landowners of the subject land claimed to be lost, is statute barred pursuant to s. 16(1) Frauds and Limitations Act 1988. The plaintiff did not make submissions on this issue.

9.	 From the evidence, the plaintiff’s claim on this issue is based upon the grant of the Petroleum Development Licence 7 (PDL 7) to the defendant as this is the event that purportedly caused the subject land to be lost to the Clan it purportedly represents. Again, although the relief sought on this issue is by way of declaration, it is founded upon the grant of a Petroleum Development Licence - a simple contract. The underlying basis for this claim of the plaintiff is not in equity and s.18 Frauds and Limitations Act 1988 does not apply. As the plaintiff’s claim based upon the Petroleum Development Licence is founded on simple contract and is brought after the expiration of six years commencing on the date on which the cause of action arose: 8th December 2009; the claim has been brought after the time permitted by s.16(1) Frauds and Limitations Act 1988 and is statute barred. 

Fairness of Transactions Act 1993

10. 	The next issue for consideration concerns the declarations sought that two agreements dated 22nd August 2013 are null and void pursuant to s. 5 Fairness of Transactions Act 1993. The defendant submits that these claims are statute barred pursuant to s. 11 Fairness of Transactions Act 1993. Further, s. 5(1) Fairness of Transactions Act 1993 provides for an application to be made under the Act, which is a prerequisite, and in this instance the plaintiff has not made such an application under the Act.

11. 	The plaintiff submits that as it only became aware of the two agreements in 2016, it is not caught by s. 11 Fairness of Transactions Act 1993.

12. 	Section 11 (1) Fairness of Transactions Act 1993 is as follows:

“11.	Limitation of proceedings.

	(1)	Any proceedings under this Act shall, subject to Subsection (2), be commenced soon after the party aggrieved by the transaction to which they relate suffers the disadvantage or becomes aware of the matters which amount to or constitute the unfairness, as the case may be, but no action shall lie later than three years after the date of the transaction.”

13. 	Subsection (2) is not relevant in this instance. From a perusal of s. 11(1) Fairness of Transactions Act 1993, although provision has been made for proceedings to be commenced after a party becomes aware of certain matters, it is made clear that, “no action shall lie later than three years after the date of the transaction.”

14. 	As the subject agreements are dated 22nd August 2013, and this proceeding was commenced on 8th June 2017, no actions lie in respect of those agreements: James Geama v. OTML Shares in Success Ltd (2011) N4269.

15. 	Consequently,  as I have found that the underlying bases for the claims of the plaintiff in the originating summons are statute barred, the plaintiff’s claims have no prospects of success. This proceeding should be dismissed. Given this, it is not necessary to consider the other submissions of counsel apart from as to costs.

16. 	The defendant seeks its costs to be paid by the plaintiff’s lawyer on a solicitor client basis as this is the fourth proceeding to be commenced by or on behalf of the plaintiff on the same subject matter. Further, the lawyers for the plaintiff were notified of this fact, the deficiencies of the plaintiff’s case that are elementary in nature, and that solicitor client costs would be sought against the plaintiff’s lawyer and his firm personally. Notwithstanding this notice, the plaintiff and its lawyer persisted with this proceeding.

17. 	I am satisfied that the necessary requirements for an order of solicitor client costs against a lawyer have been made out. I refer in this regard to the Supreme Court decision of Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015. I am of the view, as stated by the lawyers for the defendant in their letter to the lawyers for the plaintiff, that the plaintiff’s lawyer’s conduct in not advising his client appropriately is “improper, unreasonable and sufficiently blameworthy” such that solicitor client costs against the plaintiff’s lawyer should be ordered.

Orders

18. The formal orders of the Court are:

a)	This proceeding is dismissed;

b)	The plaintiff’s lawyer shall pay the defendant’s costs of and incidental to the defendant’s notice of motion filed 18th June 2017 on a solicitor client basis;

c)	Time is abridged.
__________________________________________________________________
Niuage Lawyers: Lawyers for the Plaintiff                                                    
Allens Lawyers: Lawyers for the Defendant