N10611
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 169 OF 2023

ROY KUBAU
ON BEHALF OF WANA CLAN OF REMPI,
MASUALAUG CLAN OF MEDIBA &
SAREPI CLAN, BARPI CLAN & ALEODIK CLAN OF BUDUP, MADANG DISTRICT, MADANG PROVINCE
Plaintiff

V

TAUVASA TANUVASA, SOLICITOR-GENERAL
First Defendant {Removed}

SAMUEL PENIAS, ACTING SECRETARY FOR FINANCE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

PATRICK YAL
Fourth Defendant

WILLIE KAITOK
Fifth Defendant

ALOYSIUS MANAU
Sixth Defendant

JOSEPH KUBALI
Seventh Defendant

Madang: Cannings J
2023: 20th October, 12th December

PRACTICE AND PROCEDURE – representative proceedings – requirements for commencement of representative proceedings.

PRACTICE AND PROCEDURE – power of attorney – whether attorney duly authorised by qualified persons to commence proceedings for enforcement of judgment debt in previous court proceedings

The plaintiff commenced this case claiming to act on behalf of other persons who were, as clan representatives, judgment creditors in a previous case. The plaintiff relied on a power of attorney which on its terms authorised his commencement of the present case on behalf of those other persons, who are still owed K7.5 million compensation for expropriation of customary land by the State under the final order of the National Court in the previous case. The plaintiff alleged that an initial payment of K2.5 million of the total judgment debt of K10 million in the previous case, which was supposed to be distributed amongst members of the clans represented by those other persons, had been misappropriated, and that those other persons had authorised him, by the power of attorney, to commence this case to ensure that no further misappropriation occurred and to obtain orders requiring the State to pay the K7.5 million to him, for distribution to the clan members entitled to the proceeds of the judgment debt in previous case. The defendants included the Secretary of the Department of Finance (responsible amongst others for authorising payment of judgment debts of the State) and most of the five plaintiffs in the previous case. All defendants who took an active part in this case opposed the relief sought by the plaintiff. The Secretary for Finance argued that the plaintiff had not complied with the requirements for commencement of representative proceedings. Other defendants argued that the power of attorney on which he relied was defective and unenforceable. 

Held:

(1)	The plaintiff purported to act in a representative capacity for other persons and was subject to procedural requirements for commencement of representative proceedings: (a) all intended plaintiffs must be named in the originating process; (b) each intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or their personal representative to represent them; (c) all persons in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that they were authorised by them to file proceedings as a class representative. Those requirements were not met and for that reason the proceedings should be dismissed as an abuse of process.

(2)	Furthermore, the power of attorney was defective and unenforceable. 

(3)	The proceedings were entirely dismissed.

Cases Cited

The following cases are cited in the judgment. 

Malewo v Ok Tedi Mining Ltd (2015) N8368
Nae Ltd v Curtain Brothers Papua New Guinea Ltd [2015] 1 PNGLR 281
Simon Mali v The State (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960
Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530
Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2020) N8342

Counsel

J Fongenmale, for the Plaintiff
M Wangatau, for the Second Defendant
G Pipike, for the Fourth to Seventh Defendants

12th December 2023

1.       CANNINGS J: The plaintiff, Roy Kubau, commenced this case claiming to act on behalf of other persons who were, as clan representatives, judgment creditors in a previous case.

2.      The previous case is OS No 479 of 2015, in which Patrick Yal and four others, as clan representatives, sued the Mission of the Holy Ghost (New Guinea) Property Trust and four other defendants including the State in relation to compulsory acquisition of their interests in customary land for the State-sponsored Pacific Marine Industrial Zone project in Madang District. 

3.       Mr Yal and his four co-plaintiffs obtained a judgment on liability in their favour on 27 October 2017 (Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530). 

4.     A separate trial on assessment of compensation resulted on 5 June 2020 in an order that the State pay “just compensation” to Mr Yal and his four co-plaintiffs in the sum of K2 million each, a total of K10 million, subject to the condition that Mr Yal and his four co-plaintiffs were “obliged to distribute the compensation paid to him justly and fairly in accordance with customary principles to the members of the clan he has represented in these proceedings” (Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2020) N8342). 

THE PLAINTIFF’S CASE

5.    The plaintiff Mr Kubau relies on a power of attorney which he claims authorises his commencement of the present case on behalf of Mr Yal and his four co-plaintiffs in OS No 479 of 2015, who are still owed K7.5 million compensation of the judgment debt of K10 million. 

6.      The power of attorney was signed by Mr Kubau and by Mr Yal and four others in 2022. It relevantly provides:

1. We the individuals/plaintiffs in the National Court matter referenced OS 479 of 2015 as listed in schedule 1 attached herewith, of Wards 8 and 10, Ambenob Local-level Government, Madang District, Madang Province, Papua New Guinea (“the Principals”) appoint: 

ROY KUBAU of C/- PO Box 73 Boroko National Capital District

To be our Attorney (“the Attorney(s)”) …

6. The Attorney vested on Roy Kubau is to pursue and seek payment or settlement of the outstanding judgment debt in the matter of OS No 479 of 2015 and to do further things necessary to advance and protect our interests in that matter and/or related matters. The power of attorney authorises Roy Kubau to commence any recovery or enforcement proceedings in the Courts to seek the payment or settlement of the said judgment date.

7.      The power of attorney was signed in the name of the following principals:

1.	Patrick Yal
2.	Joseph Kubali
3.	Willie Kaitok
4.	Pais Kob
5.	Albert Koli.

8.     Those names correspond with the names of the five plaintiffs in OS No 479 of 2015.

9.     Mr Kubau  alleges that an initial payment of K2.5 million released by the State, which was supposed to be distributed amongst members of the clans represented by Mr Yal and his four co-plaintiffs in OS No 479 of 2015, has been misappropriated. 

10.    Mr Kubau claims that Mr Yal and his four co-plaintiffs in OS No 479 of 2015, have authorised him, by power of attorney, to commence this case to ensure that no further misappropriation occurs and to obtain orders requiring the State to pay the K7.5 million to him, for distribution to the clan members entitled to the proceeds of the judgment debt in OS No 479 of 2015.

THE DEFENDANTS’ POSITION

11.     The defendants in the present case include the Secretary of the Department of Finance (who is responsible amongst others for authorising payment of judgment debts against the State) and Mr Yal and some of the other plaintiffs in OS No 479 of 2015. The Solicitor-General Tauvasa Tanuvasa was originally first defendant but has been removed from the case with the leave of the Court. 

12.     All defendants who took an active part in this case oppose the relief sought by the plaintiff. The Secretary for Finance argues that the plaintiff has not complied with the requirements for commencement of representative proceedings and therefore the proceedings should be dismissed. Other defendants argue that the power of attorney on which he relies is defective and unenforceable and none of the relief he seeks should be granted and for that reason the proceedings ought to be dismissed. 

ISSUES

13.     The following issues arise:

1.	Should the proceedings be dismissed due to the plaintiff’s failure to comply with requirements for commencement of representative proceedings?

2.	Should the proceedings be dismissed due to the power of attorney being defective and unenforceable?

3.	What orders should the court make?

1	SHOULD THE PROCEEDINGS BE DISMISSED DUE TO THE PLAINTIFF’S FAILURE TO COMPLY WITH REQUIREMENTS FOR COMMENCEMENT OF REPRESENTATIVE PROCEEDINGS?

14.     Mr Wangatau for the Secretary for Finance (second defendant) argued that because the plaintiff purports to act on behalf of five distinct clans (Wana Clan of Rempi, Masualaug Clan of Mediba and Sarepi Clan, Barpi Clan and Aleodik Clan of Budup) these are representative proceedings and are subject to procedural requirements laid down by the Supreme Court in two leading cases, Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960. 

15.     I uphold that argument. Mr Kubau is claiming to be personal representative of the members of those five clans. These are indeed representative proceedings. That means the following procedural requirements must be met:

(a)	all intended plaintiffs (including those the lead plaintiff claims to represent) must be named in the originating summons;

(b)	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or their personal representative to represent them; and

(c)	Mr Kubau must produce an authority to the court to show that he is authorised by them to file proceedings as a class representative.

16.     Mr Kubau’s counsel, Mr Fongenmale, suggested that the effect of the power of attorney, which expressly authorises commencement of this proceeding, was to comply with requirements (a), (b) and (c). I reject that argument. I find that even if the power of attorney is not defective and it is enforceable and capable of supporting these proceedings, there was an overriding requirement to comply with (a), (b) and (c).

17.     None of (a), (b) or (c) have been complied with. Therefore the proceedings are an abuse of process (Nae Ltd v Curtain Brothers Papua New Guinea Ltd [2015] 1 PNGLR 281, Malewo v Ok Tedi Mining Ltd (2015) N8368). I uphold Mr Wangatau’s submission that for this reason alone the proceedings should be dismissed. 

18.      As the issue of enforceability of the power of attorney has been fully argued, I will deal with it. 

2 	SHOULD THE PROCEEDINGS BE DISMISSED DUE TO THE POWER OF ATTORNEY BEING DEFECTIVE AND UNENFORCEABLE?

19.       The power of attorney was signed in the names of the five plaintiffs in OS No 479 of 2015: 

1.	Patrick Yal
2.	Joseph Kubali
3.	Willie Kaitok
4.	Pais Kob
5.	Albert Koli.

20.     I find on the evidence that of those five purported signatories to the power of attorney, only two of them actually signed the instrument:

Patrick Yal; and 
Albert Koli.

21.     Patrick Yal has become a defendant in this case and opposes the relief sought by Mr Kubau. He has given evidence that he was misled into signing the power of attorney.

22.     Of the other three who are named as principals but did not sign the power of attorney, one of them, Pais Kob, is deceased and the other two, Joseph Kubali and Willie Katok, are defendants and oppose the relief sought by Mr Kubau. 

23.      I conclude that of the five plaintiffs in OS No 479 of 2015 only one of them, Albert Koli, signed the power of attorney and is aware of the present proceedings and supports the relief sought Mr Kubau. 

24.        In these circumstances, I uphold the submission of Mr Pipike for the fourth to seventh defendants that the power of attorney is defective and unenforceable. It would be unsafe and unjust to sanction its enforcement.

3	WHAT ORDERS SHOULD THE COURT MAKE?

25.      The plaintiff Mr Kubau has failed to comply with the requirements for commencement of representative proceedings, which means the proceedings are an abuse of process and should be dismissed. In any event the power of attorney on which the plaintiff relies is defective and unenforceable and cannot support the relief he seeks. For those reasons the proceedings must be dismissed. Costs will follow the event. 

ORDER

(1)	The proceedings are dismissed. 

(2)	The interim order of 15 August 2023 is dissolved.

(3)	The plaintiff shall pay the costs of the proceedings to the second defendant and the fourth to seventh defendants on a party-party basis, which shall if not agreed be taxed.
________________________________________________________________
Chesterfield Lawyers: Lawyers for the Plaintiff
Ace Lawyers: Lawyers for the Second Defendant
GP Lawyers: Lawyers for the Fourth to Seventh Defendants