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Kaulan v Kulunga [2018] PGNC 555; N7718 (26 April 2018)

N7718

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 65 OF 2014

BETWEEN
GALA CHRISTOPHER KAULAN for and on behalf of himself and 18 others whose names are listed on the schedule attached to the back of this Writ of Summons
Plaintiff

AND
TOM KULUNGA in his capacity as POLICE COMMISSIONER OF PAPUA NEW GUINEA
First Defendant

AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND
HONOURABLE BENNY ALLAN, MINISTER FOR LANDS
Third Defendant

AND
THE INDEPENDENT STATE OF PAPA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2018 : 26^th April

PRACTICE AND PROCEDURE – Application for referral to Mediation pursuant to Rule 4(a) and (b) and 5(2) of the ADR Rules – held Court must have regard to factors mentioned in Rule 5(3) – Application refused.

Counsel:

Mr. B Boma, for Plaintiff
Mr. T. Mileng, for Defendant

26^th April, 2018

1. DINGAKE J: This is an application made pursuant to Rule 4(a) and (b) and 5(2) of the Alternative Dispute Resolution (ADR) Rules of this Court, that this matter be referred to mediation track to proceed by mediation.

2. The substantive matter sought to be referred for mediation relates to the claim by the plaintiff that there are customary landowners of Ganigle Police Barracks (GPB) Land which is located along the Okuk Highway near Kerowagi District, Simbu Province.

3. The plaintiffs claim that despite the fact that the third defendant did not acquire the GPB Land for the fourth defendant, the Kerowagi Police Mobile Squad Officers have since September, 2012 occupied the GPB Land and the newly completed houses therein and that in doing so they have trespassed on the plaintiff’s land. The plaintiff claims, inter alia, damages, for trespass on their land, in the sum of K218,340.00 for destruction of food crops and economic trees and plants.

4. The application is supported by the affidavits of Peterson Kewa filed on the 28^th of March, 2018 and that of Christopher Gala Kaulan.

5. Rule 5(2) provides that:

“(2) The Court shall on the request of all parties to a proceeding or on the application of any party to a proceeding or on its own motion order mediation for

• (a) a resolution of all or any parts of the proceedings; or
• (b) failing settlement, identify and limit the real and meritorious issues in the proceedings that warrant judicial consideration and determination; and or
• (c) enable the parties to reach consensus on the conduct of litigation.”

6. Rule 5(3) provides that:

“(3) At the time of considering whether or not to order mediation, the Court shall have regard to the following factors:

(a) whether the mediation will result in prejudice to the rights of any of the parties;

(b) whether it is reasonably within the ability and the power of a party to comply with an order for mediation having regard to matters such as any urgency in the proceedings, costs, multiplicity of parties or lack of resources;

(c) whether the mediation will require substantial work which could be better directed to preparation for trial;

(d) the nature of the relief sought and the suitability of a mediation result;

(e) the timing of the mediation including by reference to the status of the pleadings, discovery and the alternatives of when trial is likely and the length and costs of trial;

(f) the attitude of the parties to mediation though not significant;

(g) whether mediation was earlier attempted and whether any good purpose will be served by an order for further mediation;

(h) the appropriateness of deferring any final decision on a application for orders for mediation; and

(i) what the interest of justice in the particular circumstances of the case require.”

7. In my mind the use of the word shall in Rule 5(3) suggests that it is mandatory in considering whether not to order mediation to have regard to the factors outlined in Rule 5(3) above.

8. In this application, the applicant has not made any attempt to canvass, in his supporting affidavits, or in submissions before this Court, the matters/the Court is required to take into account by Rule 5(3) of the ADR Rules.

9. Without the evidentiary material that allows the Court to consider the matters prescribed by Rule 5(3) of the ADR Rules this application cannot succeed.

10. It is clear from the Scheme of the ADR Rules, more particularly Rule 5(3) thereof, that mediation is not automatic upon an application being made by a party that a matter be referred to mediation.

11. In the result, and for the reasons stated above, this application cannot succeed and is accordingly refused.

12. There is no order as to costs.

___________________________________________________________

Boma Lawyers: Lawyers for the Plaintiff
Solicitor General : Lawyers for the Defendants