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Biande v Welek [2025] PGNC 200; N11327 (12 June 2025)

N11327

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 41 OF 2025

BETWEEN:
BERNARD BIANDE- IN HIS CAPACITY AS THE CHAIRPERSON OF VAMUKUMA INCORPORATED LAND GROUP (REG. ILG NO: 795)
First Plaintiff

AND:
VAMUKUMA INCORPORATED LAND GROUP (REG. ILG NO: 795)
Second Plaintiff

AND:
PETRA TARURU WELEK- IN HER CAPACITY AS THE FORMER TREASURER OF VAMUKUMA INCORPORATED LAND GROUP (REG ILG NO: 795)
First Defendant

AND:
GABRIEL WELEK
Second Defendant

AND:
LINUS SIVERING
Third Defendant

WAIGANI: COATES J
12 JUNE 2025

PRACTICE AND PROCEDURE – Trial – Non-compliance with case management orders – Pretrial conference is a case management procedure – Lawyers duties – Dismissal.

Cases cited
Kalang Advertising Ltd v Kuppusamy (2008) SC924

Counsel
P Kewa for the plaintiffs
F Cherake for the defendants

DECISION

1. COATES J: The plaintiffs seek declarations and orders confirming them as the proper officers to control the Vamukuma Incorporated Land Group (Reg ILG no. 795) (the Land Group).
   
2. Management decisions and appointments have been made, and it is alleged the defendants will not vacate positions on the Land Group.
   
3. Declarations would be crafted to recognise the status of the plaintiffs being in full compliance with the requirements of the Incorporated Land Groups (Amendment) Act 2009.
   
4. Particulars would see the declarations name Bernard Biande as chairperson, Norbert Simoni as deputy chairperson, Israel Kopilia as treasurer, Michael Bellie as secretary, Bernadette Mugal and Martina Sivering, as female representatives, and that they were all duly appointed and lawfully recognised by the Registrar of Incorporated Land Groups.
   
5. Consequential declarations and orders sought would remove the defendants from the Land Group’s management structure and prevent them from obstructing the operation, governance and financial management of the Land Group.
   
6. On 21 April 2025, I made the following orders:
   
   1. The plaintiffs have 21 days to file and serve further affidavits with respect to the substantive issues.
   2. The defendants shall file and serve response affidavits within 21 days.
   3. The plaintiffs shall file written submissions by 1 June 2025.
   4. The defendants shall file written submissions by 6 June 2025.
   5. The parties shall further transmit their written submissions electronically via email to my chambers.
   6. That the trial is fixed for Thursday 12 June 2025 and 9:30 am.
   7. That the matter shall return for pretrial conference on Tuesday 10 June 2025 at 9:30 am.
      
7. A pretrial conference is recognised under Order 10 Rule 9 of the National Court Rules.
   
8. It is an important case management rule, and includes the confirmation of legal representation, confirmation that relevant documents have been filed, confirmation of the witnesses and the length of their evidence, identifying agreed and disputed facts and legal issues and all of that necessary information required to conduct a hearing.
   
9. On 10 June, the matter was set down for 9:30 am, unfortunately no courtroom was available, although the parties would obviously have to wait until the case management appearance would take place.
   
10. At 10:40 am the defendant’s lawyers, Cherake Lawyers, whose office is at Tokarara, about four kilometres from the Waigani court complex, emailed the following correspondence to my associate:
    

“We act for the defendants in this matter. The matter returns this morning for pretrial conference. We advise counsel is unable to attend to the matter this morning due to financial constraints faced by the defendants. My clients are ordinary village folks with no formal or steady source of income. Furthermore, they have not been paid their share of the proceeds from the fresh fruit bunch (FFB) since the first plaintiff took office. Therefore, they were unable to fund our travel to Waigani for the attendance of the matter. Furthermore, we have not filed and served our submissions as directed by the court nor have we received any further affidavits from the plaintiffs. We therefore request ... the trial of this matter scheduled for the 12th of June 2025 to be vacated.”

11. On perusal of the file, it was apparent that both parties were in breach of the case management orders, with nothing filed in compliance with the orders made on 10 April 2025.
    
12. It was apparent then that the defendant’s lawyer would not be attending the Mention, and on calling the defendants – there was no attendance by them either.
    
13. At least the plaintiffs lawyer appeared.
    
14. His excuse was that he had new evidence which would determine the case, that being a statement from the Registrar of Incorporated Land Groups, Mr Augustine Kapanombo, who would confirm that the procedures to record the change in the second plaintiff’s executive complied with the Land Groups Incorporation (Amendment) Act 2009, in that all lawful steps were taken.
    
15. I adjourned the matter until Thursday 12 June 2025, the trial date, to allow for this evidence to be filed and served.
    
16. Subsequently an affidavit was produced by Mr Peterson Kewa, lawyer for the plaintiffs.
    
17. Exhibited to it was correspondence from the Registrar of Incorporated Land Groups, Mr Augustine Kapanombo, confirming compliance with regard to registration of the executive members of the second plaintiff.
    
18. Should this letter reflect the true state of affairs, then it appears to be very strong evidence suggesting the defendants do not have a case.
    
19. However, as a matter of law, the evidence is inadmissible, as it is not sworn to by the deponent, the Registrar of Incorporated Land Groups, Mr Augustine Kapanombo.
    
20. It is said to be his correspondence, but as it is being introduced by the lawyer representing the plaintiffs, Mr Kewa, who has managed to make himself a witness in the case and cannot now go on to represent the plaintiffs – his role is to represent them, not give evidence on their behalf.
    
21. The correspondence attempted to be introduced this way is a mere hearsay document, and inadmissible.
    
22. The proper course would have been to have the Registrar swear to the correspondence and to be available for cross-examination.
    
23. Neither party is ready, and both have failed to comply with case management orders.
    
24. The lawyer for the defendants, Mr Florian Urim Cherake, is particularly at fault, stating he would not be at court because he was not funded to travel the four kilometres from his legal office to the court complex.
    
25. His first duty is to the court, and once that duty is discharged, his duty is to represent his clients.
    
26. This morning, 12 June 2025, on being served with the information from the Registrar of Land Groups contained in Mr Kewa’s affidavit, he sent further correspondence to the court stating he relied on what he said previously but then attached a submission disputing the plaintiff’s case. That is no way that this matter can be or should be conducted.
    
27. Mr Kewa, while he has not complied, is less culpable, in that he has at least attempted to produce evidence for his clients, however, he cannot do it by swearing to the truthfulness of the correspondence he has from the Land Group Registrar.
    
28. I will point out to both parties that there are large caseloads which each judge must manage, and such caseloads rightfully are a cause of concern to the general public.
    
29. Ignoring case management orders slows the process as litigants seek adjournments, often for flimsy reasons, and this is such a case. Today, 12 June 2025, could have had a deserving case, properly prepared and heard, so that people who want a decision get a decision.
    
30. There are too many matters before the court reflecting the state of affairs which is now being revealed in relation to this case.
    
31. Given what the defendant’s lawyer stated in the correspondence, I would have no faith at all in the defendants ever complying with orders to file material.
    
32. If the matter is so important to them that they challenge the orders sought by the plaintiffs as to control of the Vamukuma Incorporated Land Group, then they would move all barriers to ensure that they complied with directions.
    
33. I would apply the same test to the plaintiffs.
    
34. This wasted the time of the court, not because of the shortage of courtrooms, but because a deserving matter, a matter in which the parties are prepared to follow court orders, could have been listed.
    
35. Pursuant to Order 10 Rule 9A (15) of the Rules, the court has the power either on application of a party or on its own initiative to dispose of a matter.
    
36. Had the plaintiffs filed the important letter from the Land Group Registrar in proper form, the court would be in a position to consider making a summary judgment in their favour.
    
37. However, as a hearsay document, the court has no power to exercise a discretion on inadmissible material.
    
38. On that basis on the court’s own initiative, I will consider disposing summarily of the whole matter.
    
39. I have that power in following the decision of Kalang Advertising Ltd v Kuppusamy (2008) SC924.
    
40. However, natural justice insists, properly, that I put the parties on notice.
    
41. I cannot do so with the defendant’s lawyer as the defendant’s lawyer has not had the courtesy to attend court.
    
42. However, the defendant’s lawyer knows, or ought to know, the rule in relation to summary disposal, especially that part of Order 10 Rule 9A (15), that the power may be exercised for a failure to appear at any listing or directions hearing, a self-explanatory case management rule.
    
43. I have sought from the plaintiffs why I should not dismiss the matter as I am not satisfied that I can make a decision in the plaintiffs’ favour on hearsay evidence. I am not satisfied either that the oral application to adjourn the matter will see the filing of all necessary evidence to make or to give summary judgment in the plaintiffs’ favour.
    
44. I now intend to exercise the discretion given to me under the rules and dismiss the matter, because of the dilatory case management of each of the parties. I find no evidence that they are committed to having the case determined, and that causes me to dismiss it as being a waste of court time and abuse of process.
    
45. I will state this, lawyers representing people discharge a public duty under the law both to their clients and to the court, the court duty being paramount, however, each lawyer here has not performed their duty.
    
46. The dismissal, pursuant to Order 10 Rule 9A (15)(1)(b) and 2(b) of the National Court Rules does not prevent the filing of a new application, however, the defendants ought satisfy themselves of the position of the Land Groups Registrar.
    

ORDER

47. Pursuant to Order 10 Rule 9A (15)(1)(b) and 2(b) of the National Court Rules this matter is dismissed as both parties have failed to comply with case management orders.

Lawyers for the plaintiffs: Pacific Attorneys & Consulting Group
Lawyers for the defendants: Cherake Lawyers