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Lihir Mining Area Landowners Association Inc. v Laketan [2018] PGNC 537; N7666 (17 December 2018)

N7666

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS.NO. 777 OF 2018

LIHIR MINING AREA LANDOWNERS ASSOCIATION INC. (LMALA)
Plaintiff

V

JAMES LAKETAN – in his capacity as the former Chairman of Lihir Mining Area Landowners Association Inc. (LMALA)
First Defendant

NELSON MALOM – in his capacity as the former Vice Chairman of Lihir Mining Area Landowners Association Inc. (LMALA)
Second Defendant

BEN TIENTIEN JNR – in his capacity as the former Secretary of Lihir Mining Area Landowners Association Inc. (LMALA)
Third Defendant

FIDELIS WESPARO – in his capacity as the former Public Officer of Lihir Mining Area Landowners Association Inc. (LMALA)
Fourth Defendant

Waigani: Kariko, J
2018: 7^th & 17^th December

PRACTICE & PROCEDURE – CIVIL JURISDICTION – application to withdraw notice of motion – whether withdrawal appropriate – competency of oral application to dismiss proceedings – abuse of process – multiplicity of proceedings – inherent jurisdiction of court to control proceedings

Cases Cited:

Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085
Michael Wilson v Clement Kuburam (2016) SC1489
Pokia v Yallon (2014) SC1336

Counsel:
Mr P Kewa, for the plaintiff
Mr J Griffin QC and Mr G Geroro, for the defendants

RULING

17^th December, 2018

1. KARIKO, J: Two notices of motion by the plaintiff came before me on 7^th December, 2018:
   
   • (1) Notice of motion filed 19^th October, 2018 for interlocutory orders, including an interim injunction, pending hearing of the substantive proceedings.
   • (2) Notice of motion filed 6^th November, 2018 seeking to withdraw the earlier notice of motion and for these proceedings to be referred to mediation.
     
2. I decided to first deal with the application to withdraw the first notice of motion, after being informed the application would be opposed and that an adjournment of the other motion was necessary due to short-service.
   

Brief background

3. The Lihir Mining Area Landowners Association Inc. is the main representative organization for the customary landowners of the land on which the Lihir Mine operates in the New Ireland Province.
   
4. On 14^th June, 2018 the Acting Registrar of Companies issued a notice under s. 38 Associations Incorporation Act, Chapter 142 that removed the incumbent executive committee of the Association and replaced it with an interim committee headed by an officer of the Investment Promotion Authority. This action was based on alleged mismanagement of the Association.
   
5. The defendants acting on behalf of the Association then filed for judicial review of the decision of the Acting Registrar of 14^th June, 2018 (OS(JR) No. 544 of 2018: Lihir Mining Area Landowners Association Inc. (LMALA) v Harriet Kokiva and Investment Promotion Authority). Harriet Kokiva is the Acting Registrar of Companies.
   
6. Leave for judicial review was granted by Thompson J on 20^th September, 2018 when her Honour also stayed the decision of the Acting Registrar of 14^th June, 2018.
   
7. An application for leave to appeal her Honour’s decision was filed on 17^th October, 2018 and it was heard and dismissed by the Supreme Court on 5^th December, 2018.
   
8. In the meantime, the present proceedings were filed on 19^th October, 2018. That was a month after the decision by Thompson J and two days after the leave application was filed in the Supreme Court.
   
9. The judicial review hearing is now awaiting the allocation of a hearing date.
   

Withdrawal or dismissal

10. In summary, the plaintiff submitted that the second notice of motion is an amendment of the earlier one and the Court should allow the application for withdrawal.
    
11. The defendants’ response is that the earlier notice should be dismissed as it seeks orders entirely different for those now applied for and the second notice cannot in any sense amount to an amendment of that earlier notice of motion.
    
12. Further the defendants argued that the proceedings ought to be dismissed as an abuse of process because the pending judicial review case will decide the very issue that the plaintiff seeks to have addressed in these proceedings, namely, the appointment of an executive committee for the Association (interim or otherwise) to manage the affairs of the Association. For the moment, there is an executive committee in place. The decision of the Acting Registrar of 14^th June, 2018 is stayed meaning that the position before that decision is the status quo, viz: the defendants comprise the executive committee of the Association.
    
13. In rebuttal, the plaintiff urged the Court not to entertain the application to dismiss the proceedings because the defendant did not file the requisite notice of motion and supporting affidavit in accordance with the National Court Rules.
    
14. To my mind, it is not necessary to determine whether the earlier notice of motion should be withdrawn or discontinued given my decision in relation to the application to dismiss the proceedings. Suffice to say, it is clear to me that the second notice cannot be regarded as an amendment of the first notice because the relief sought are not the same nor similar in nature.
    

Abuse of process

15. I am quite satisfied that these proceedings are an abuse of process as argued by the defendants. Members of the Association who were appointed by the Registrar as members of the Interim Executive Committee have had their appointments stayed by the judicial review court. Their proposed appeal against the stay has been declined. The present action is another bite at the cherry.
    
16. The Supreme Court in the case of Pokia v Yallon (2014) SC1336 stated at[20]:
    

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a "second bite at the cherry" to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).”

17. In another Supreme Court case, Michael Wilson v Clement Kuburam (2016) SC1489, Gavara-Nanu, J observed at [25]:
    

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

18. I am of the opinion that by filing the current proceedings, the plaintiff improperly used the processes of the Court. The proceedings were filed when the judicial review case and the Supreme Court leave application were pending. It is interesting to note that in his affidavit filed 6^th December, 2018 counsel for the plaintiff states at [16] that there is one fundamental issue in the both this case and the judicial review case: “who should control the management and affairs of the Association?”
    
19. Notwithstanding the fact that the defendants did not file a formal notice of motion for the dismissal of the proceedings, the Court has an inherent jurisdiction to control proceedings before it; Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085. In that case, his Honour Injia, J (as he then was) stressed that the Court must ensure proceedings are conducted fairly and in an orderly fashion and timely manner so justice is done. The Court shall therefore weed out claims that are an abuse of process or for irregularity. His Honour went to state that the Court may exercise that discretion on its own initiative for it is open to the Court to raise and determine questions concerning the regularity or competency of proceedings at any stage.
    

Conclusion

20. In the end, I am satisfied these proceedings should be dismissed.
    
21. I add that if the plaintiff wishes to pursue mediation, then the appropriate application may be made before the judicial review court.
    

Order

22. The Court orders that:
    
    • (1) These proceedings are dismissed for being an abuse of process.
    • (2) The plaintiff shall pay the defendants’ costs of an incidental to the proceedings, to be taxed if not otherwise agreed.
    • (3) Time is abridged.
      

________________________________________________________________
Serria Legal Services: Lawyer for the Plaintiff
Geroro Lawyers: Lawyer for the Defendants