N9071

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 53 of 2018(COMM)

BETWEEN:
OPIS PAPO
Plaintiff

AND:

BARRICK (NIUGINI)
LIMITED
Defendant

Waigani: Hartshorn J
2019: 28th August

PRACTICE AND PROCEDURE - Application to dismiss proceeding

Cases Cited:
Papua New Guinea Cases

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
Siu v. Wasime Land Group Incorporated (2011) SC1107
Mamum Investment Ltd v. Koim (2015) SC1409

Overseas Cases

Hubbuck & Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86

Counsel:

Mr. R. Mannrai, for the Plaintiff
Mrs. G. Elai, for the Defendant

28th August, 2019

1. HARTSHORN J: This is a decision on a contested application to amongst others, dismiss this proceeding. The defendant Barrick (Niugini) Limited (Barrick) seeks to dismiss this proceeding on the ground that it is statute barred. Order 12 Rule 40(1) National Court Rules and s. 16 Frauds and Limitations Act are relied upon.

Background

2. The plaintiff Opis Papo, seeks declaratory relief concerning amongst others, that in regard to the land upon which the Porgera Mine is situated, that he has standing in certain capacities, that Barrick has failed or refused to pay compensation as determined by the Minister for Environment and Conservation, and has failed to comply with an Environment permit. An order for specific performance and injunctive relief are also sought.

This application

3. Barrick submits that this proceeding should be dismissed as amongst others:

a)	the plaintiff’s cause of action commenced when the Special Mining Lease was granted on or about 12th May 1989 or when the 1996 Ministerial Determination was made or when the relevant environmental permit was granted to Barrick’s predecessor in 1988;

b)	the plaintiff’s claim could not stand on its own if the Special Mining Lease or environmental permit were not granted nor if the Ministerial determination had not been made;

c)	the true nature of the declaratory relief sought is based upon tort and/or contract.

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

a)	it has not been pleaded that the plaintiff has a cause of action in tort or contract and so the Frauds and Limitations Act does not apply;

b)	the plaintiff’s causes of action are on going;

c)	it is in the interests of justice.

Law

Order 12 Rule 40 National Court Rules

5. In regard to Order 12 Rule 40 National Court Rules upon which the defendants rely, there are numerous authorities in respect of the principles to be considered. I make reference to the following cases: 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 Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows: 

“27.	The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915; Eliakim Laki and 167 Others v. Maurice Alulaku and Others (2002) N2001; Kiee Toap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori & The State (2006) N3050; Philip Takori & Others v. Simon Yagari & 2 Others (2008) SC 905. These cases say the same thing. 
28.	The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra). 
29.	The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim.  The principles stated by these cases can be summarized as follows:
(i)	A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.
(ii)	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.
(iii)	The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.
(iv)	A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.
(v)	A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30.	In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

6. 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
7. Section 16 (1) Frauds and Limitations Act is as follows: 
“(1)	Subject to Sections 17 and 18, an action—
	(a)	that is founded on simple contract or on tort; or
	(b)	to enforce a recognisance; or
(c)	to enforce an award, where the submission is not by an instrument under seal; or
(d)	to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

Consideration

8. The plaintiff submits that because it has not been pleaded that he has a cause of action in tort or contract the Frauds and Limitations Act does not apply. From a perusal of the statement of claim however, it is apparent that the plaintiff’s claim is based upon tort for damage allegedly caused to the land and possibly contract, allegedly for breaches of the Special Mining Lease, the environmental permit referred to and for allegedly not receiving the compensation to which he alleges he is entitled under the 1996 Ministerial Determination. That the plaintiff has not specifically pleaded that his causes of action are in tort or contract does not preclude the operation of s. 16 Frauds and Limitations Act.

9. As to the submission that s. 18 Frauds and Limitations Act applies as the declaratory relief sought seeks equitable relief, the declaratory relief sought is based upon the causes of action already referred to: Mamum Investment Ltd v. Koim (2015) SC1409. Further, the specific performance order sought is consequential upon the substantive relief being granted. To my mind, therefore s.18 does not apply in this instance.

10. The plaintiff also submits that the wrongs about which he makes complaint are ongoing and so any period of limitation applicable has not expired. As to this submission, the last part of s. 16(1) Frauds and Limitations Act is self-explanatory: 

“….. shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”

11. It is not clear from the pleadings and evidence as to specifically when the plaintiff’s causes of action accrued, however I am satisfied that the latest that they accrued was in 1996. Consequently, the proceeding should be dismissed as it is statute barred and has no prospects of success. Given this it is not necessary to consider the other submissions of counsel.

Orders

12.  It is ordered that:

a)	This proceeding is dismissed;

b)	The plaintiff shall pay the defendant’s costs of and incidental to this proceeding;

c)	Time is abridged.	
__________________________________________________________________
Mannrai Lawyers: 			Lawyers for the Plaintiff                                                    
Barrick (Niugini) Limited: 	 Lawyers for the Defendant