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Puya Bitupa Talipe Association (Inc) v Pok [2018] PGNC 454; N7558 (2 November 2018)

N7558

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 377 OF 2018

BETWEEN
PUYA BITUPA TALIPE ASSOCIATION (INC)
First Plaintiff

AND
NELSON WARAI, KEN IRABE, BIRIWI PATI, ALEX YUWI, ON BEHALF OF THEMSELVES AND OF CLANS AND MEMBERS OF IROKE TRIBE
Second Plaintiffs

AND
DR. FABIAN POK, MINISTER FOR THE DEPARTMENT OF PETROLEUM & ENERGY
First Defendant

AND
KEPSEY PIUYE, THE ACTING SECRETARY FOR THE DEPARTMENT OF PETROLEUM & ENERGY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2018 : 14 June, 5 & 26 July

Cases Cited:

NCDC v Yama Security Services Pty Ltd [2003] SC707
William Duma v Eric Meier [2007] SC898

Counsel:

Mr. Leslie Kari, for the Applicant
No Appearance, for the Respondent

2 November, 2018

1. DINGAKE J: By notice of motion filed with this Court on the 11^th of July, 2018 (Doc No. 8) the applicants moved the Court for the following relief:
   • (1) That pursuant to Order 4 Rule 49(17) and Order 12 Rule 1 of the National Court Rules all other notices of motion in this matter are withdrawn.
   • (2) An order that the defendants being Kepsy Puiye, the Acting Secretary for the Department of Petroleum & Energy and Dr. Fabian Pok, the Minister for the Department of Petroleum & Energy and their servants and agents or any persons or organizations directly or indirectly associated with the defendants other than the Licensee of the PNG LNG Project, be restrained from the conducting of any clan vetting and landowner identification exercise or the funding of or approving or taking any steps whatsoever to conduct the Clan vetting required by Section 47 of the Oil and Gas Act of 1988, in the JUHA PDL9 Gas Project in the Hela Province.
   • (3) An Order restraining landowner identification and or clan vetting based on landownership from being conduct pursuant to Section 47 of the Oil and Gas Act 1988, in PDL 9 (JUHA) in the Western Province.
   • (4) An Order that any such landowner identification exercise or clan vetting based on landownership for PDL 9 (JUHA) pursuant to Section 47 of the Oil and Gas Act 1988, be carried out at Fugwa Station in the North Koropa Local Level Government in the Hela Province.
   • (5) An Order that the developer or Licensee of the PNG LNG Project fund such clan vetting and landowner identification to be conducted by the Court annexed mediation team ADR team until completed including the Angore PDL 8 and all other oil field areas. Pursuant to Section 47 of the Oil and Gas Act.
   • (6) That the costs be in the cause.
2. As in clear from the above notice of motion paragraph one (1) thereof seeks withdrawal of the other notice of motion filed in this matter pursuant to Order 4 Rule 49 (17) and Order 12 Rule 1 of the National Court Rules.
3. The applicants do not state in concise terms the jurisdictional basis of the balance of the Orders sought.
4. Order 4 Rule 49 (17) provides that:
   • “17. Dismissal /Striking out of Motions.
   • The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”
5. It is to my mind clear that Order 4 Rule 49 (17) cannot be the jurisdictional basis of the Orders sought in the notice of motion.
6. Order 12 Rule 1 of the National Court Rules provides:
   • “1. General relief. (40/1)
     • The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.”
7. It is plain to me that the above order, general in nature, cannot apply to this proceedings, even if it was intended to apply to the balance of the orders sought in the notice of motion, which is not the case in this application.
8. Order 4 Rule 49(8) of the National Court Rules obliges the applicants to set out the jurisdictional basis of their application in precise terms. The aforesaid section provides:
   • “8. Form of Motions.
     • All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.
     • The motion must state the following;
     • "...move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act...) ...".
9. I am satisfied that having regard to the above provision this application is liable to be struck out as incompetent for lack of form.
   
10. Order 4 Rule 49(9) of the National Court Rules provides that:
    • “9. Motions for interlocutory matters only.
      • Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.”
11. In this matter the notice of motion seeks materially similar or identically orders with those sought in the originating summons. This is simply incompetent (NCDC v Yama Security Services Pty Ltd [2003] SC707 and William Duma v Eric Meier [2007] SC898).
12. As the applicants were seeking in their notice of motion relief that is materially similar to the one sought in the Originating Summons, in contravention of Order 4 Rule 49(9) of the National Court Rules, this application is liable to be dismissed for this reason alone, if for no other.
13. In the result, the application is misconceived and without merit and for one or all of the reasons stated above, is dismissed.
14. The Court orders that:
    • (a) The notice of motion filed o the 11^th of July, 2018, is dismissed.
    • (b) There is no order as to costs.

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PNG Legal Services Lawyers: Lawyers for the Applicant