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Isaac v AGAC Properties Ltd [2025] PGNC 87; N11197 (12 March 2025)

N11197

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 124 OF 2024 (IECMS)

BETWEEN:
ALI G. ISAAC & TIAKAP MALAC, for themselves and on behalf of Agactu Clan of Butibam Village
First Plaintiffs

AND:
AGAC PROPERTIES LIMITED
Second Plaintiff

AND:
AHI PROPERTIES LIMITED
First Defendant

AND:
THE NATIONAL LAND BOARD
Second Defendant

AND:
THE REGISTRAR OF TIELS
Third Defendant

AND:
THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:
MINISTER OF LANDS & PHYSICAL PLANNING, HON. JOHN ROSSO
Fifth Defendant

WAIGANI: DINGAKE J
12 MARCH 2025

JUDICIAL REVIEW - Practice and procedure – Application to dismiss proceedings pursuant to Order 16 Rule 13 (13) 2(a) of the National Court Rules on a number of competency grounds.

Cases cited
Makeng v Timbers PNG Ltd 2008 N3317
Kalinoe v Paul Paraka Lawyers (2014) SC1366
Mali v The State [2002] PNGLR 15

Counsel
Mr. Frankford Dagina for the plaintiffs
Mr. Philip Tabuchi for the first defendant
Ms. Pauline Yom for second, third, fourth & fifth defendants

1. DINGAKE J: INTRODUCTION: This is my ruling with respect to the First Defendant’s Notice of Motion filed on the 28^th of February, 2025, in which it seeks the following orders;
   
   1. Pursuant to Order 16 Rule 13(14) of the Rules and the inherent jurisdiction of the Court, the requirement that the Leave Application be heard ex-parte be dispensed with and the First Defendant be granted leave to be heard at the hearing on the application for leave for judicial review.
      
   2. Pursuant to Order 16 Rule 8(1) and or Order 12 Rule 8(3)(a) of the Rules, and the inherent jurisdiction of the Court, the ex parte Orders made 27 December 2024 be discharged or set aside forthwith; and
      
   100. Pursuant to Order 16 Rule 13 (13) (2)(a) of the Rules, the proceedings be summarily determined and dismissed for being incompetent and abuse of process.
        
2. It is trite law that at the Leave stage, only the State is entitled to be heard. In this case, the First Defendant has asked for leave to be heard. I granted leave to the First Defendant to be heard, primarily because of the trajectory of this case that may be prejudicial to the First Defendant.
   
3. Significantly, the Plaintiff on the 27^th of December 2025, without first obtaining leave took out interim orders against the First Defendant.
   
4. In terms of the above orders, the First Defendant, its agents and or servants restrained from evicting the Plaintiffs’ and their partners from Section 360 Allotment 01, old Lae Airport, Morobe Province until 31^st March 2025.
   
5. Our law is that a Plaintiff does not have a primary right to challenge an administrative decision until leave is granted.
   
6. Order 16 Rule 8(1) of National Court Rules provides that:
   

“Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

7. Order 16 Rule 13 (13)(2)(a) of the National Court Rules provides that:
   

“a. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.”

8. During the course of argument, I got the distinct impression that Mr. Tabuchi learned Counsel for the First Defendant was not keen to pursue Term 1(b) above, in the event this Court is satisfied that the Originating Summons is incompetent or otherwise non-compliant with the Rules.
   
9. I have decided to anchor my ruling on whether this Originating Summons (application) is liable to be dismissed because it is incompetent and not whether the Order of the 27^th of December, 2024 is liable to be discharged.
   
10. In terms of Order 16 Rule 13 (13) (2) (a) of the National Court Rules, and in exercise of its inherent jurisdiction, Section 155(4) of the Constitution, this Court is entitled to safeguard its processes against being abused.
    
11. I have considered all the grounds and supporting evidence put forth by the First Defendant that the Originating process herein is incompetent & therefore liable to be dismissed.
    
12. Firstly, it is indisputable that the Originating Summons goes beyond asking for Leave, but pleads other substantive relief. This is improper Injia DCJ (as he then was) in Makeng v Timbers PNG Ltd [2008] N3317 when he stated that:
    

“37. In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 NS o 16 r 5(2).”

13. The above decision has been cited with approval by the Supreme Court, in many occasions, including in the case of Kalinoe v Paul Paraka Lawyers (2014) SC1366.
    
14. Based on the above authorities the Plaintiff’s Originating Summons (OS) is incompetent. This renders the entire proceedings incompetent and an abuse of process.
    
15. There is, in fact, a litany of other transgressions by the Plaintiff that render these proceedings incompetent. I need not mention all of these transgressions, save only for two; namely:
    
    1. That the Plaintiff has failed to meet the mandatory requirements of class action as set out under the locus classicus case of Mali v The State [2002] PNGLR 15.
       
    2. That there is no resolution authorizing the second Plaintiff commencing proceedings in this matter.
       
16. The mandatory requirements for representative action set out by the Mali case, cited above are:
    
    1. All intended plaintiffs (those who he claims to represent) must be named in the originating process;
       
    2. Each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them; and
       
    100. Any person who commences proceedings and claims to represent other intended plaintiffs must produce authority to the court to show that he was authorized by them to file proceedings as a class representative.
         
17. In the result, having regard to all the above, and even without considering other defects this Court is satisfied that the proceedings are incompetent and an abuse of court process and liable to be dismissed.
    
18. Consequently, having found that the proceeding is an abuse of process for reasons stated above, I make the following order:
    
    1. Pursuant to Order 16 Rule 13 (13) (2) (a) of the National Court Rules, the proceedings be summarily determined and dismissed for being incompetent and an abuse of court process.
       
    2. Costs of and incidentals to this application be paid by the Plaintiffs.
       
    100. Such costs to be agreed or taxed.

_______________________________________________________________
Lawyers for the plaintiff: Daniels & Associates Lawyers
Lawyers for the first defendant: Young & Williams Lawyers
Lawyer for the second, third, fourth & fifth defendants: Solicitor General