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Ape, Spokesperson and Member of the Yala Clan v Giheno, Minister for Mining & Petroleum [1996] PGNC 61; N1498 (18 December 1996)

Unreported National Court Decisions

N1498

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 531 OF 1996
BETWEEN
KOMEALIA APE SPOKESPERSON AND MEMBER OF THE YALA CLAN - PLAINTIFF
AND
JOHN GIHENO - MINISTER FOR MINING & PETROLEUM - FIRST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - SECOND DEFENDANT
AND
CHEVRON NIUGINI PTY - THIRD DEFENDANT
AND
BARACUDA PTY LTD (NO. 2) - FOURTH DEFENDANT

Mount Hagen

Lenalia AJ
18 December 1996

CIVIL JURISDICTION - Injunctions - Interlocutory injunctions - Where applicable - Preservation of status quo - Proof on the balance of convenience.

CIVIL JURISDICTION - Administrative decision - Whether National Court can interfere when other venues in that administrative process has not been exhausted.

Cases Cited

Robinson v National Airlines Commission [1983] PNGLR 476

Soso Tomu & Ors v The Independent State of Papua New Guinea & Ors - Unreported OS 83 of 1996

Counsel

R Riddell for the 3rd & 4th Defendants

A Kwimberi for Applicant

INTERLOCUTORY JUDGEMENT

18 December 1996

LENALIA AJ: By a motion filed0th of Decf December 1996, the Plaintiffs sought a prohibitive order to restrain the Defendants from signing an agreement with the landowners of Gobe Main and Gouth East projects to commence work until the PlaintiffRf’s application for review of the Lands Titles Commission’s decision of 29th February 1996 has been reviewed. They also t a mandatory orry order to force the Second Defendant to discharge its duties to provide funds for the review of the Plaintiff’s application lodged on 17th May, 1996 with the Chief Landes Commissioner. I gr I grantede for the Plhe Plaintiff to dispense with requirement for service seeing it was urgent and since the proposed signing of the agreement was scheduled for the next day and secondly I made an ex-parte restraining order against all parties involved.

By another motion filed on 17th of December 1996, the 3rd and 4th Defendants through their lawyer sought orders to set aside the ex-parte restraining orders that were obtained on 11th of December. The 3rd and 4th Defendants sought the following order:

1. That the tim sforicervf thof the motion be abridged.

3. ҈&ـ Thragraph 1aph 1 of the Originating Sung Summonsmmons file filed on d on 10th 10th DecemDecember 1996 be struck out.

4.ټ That the Third Defe danteme removed as a party to these proceedoceedings.

5. ټ T60; That the Plaintiff pey the Third Defendant’s costs of this motion.

6. & S60; Such further o as turt sit.7. ʔ That the time for entry ofry ofry of thes these orde orders be abridged to the date of settleby thistanistrar whiall tlace with.

In support port of their application, the applicants ants by thby their leir lawyerawyers fils filed affidavit evidence from Mr Patrick James Gillies, the Deputy Project Manager of the Gobe Project who alleges that the 3rd Defendant holds interest in various forms of licences which were issued under the Petroleum Act including a 25% Petroleum Prospecting Licence “PPL” 161 in the area commonly known as Gobe Main including portions of the Oil Field generally known as “South East Gobe”. pears from their evidence ence that the 3rd Defendant is amongst other interest holders of PPL 161 of which Chevron is the operaursuant to an “On Shore Operating Agreement: dated 7th March 1989. It is part oart of theDefe Defendant’s responsibility as operator of PPL 161 to protect the legal rights and interests of interest holders of PPL 161.

By virtue of Claus of the On Shore operating Agreement, Chevron as operator itor is also given responsibility to prosecute, defend and settle claims and litigants with third parties only if it is so required in order to safe guard the parties’ interest under the licence. A declaration has been made by the 3rd Defendant pursuant to S. 30 of the Petroleum Act with certainty that petroleum is or has been located both in PPL 161 and PPL 56 an adjoining PPL which contains the balance of South East Gobe field. The parties L 161 and PPL PPL 56 are proposing to undertake a joint development of both Gobe Main and South East Gobe Oil Fields.

Iny to the latter motion, the Plaintiff’s representative asserts basically the same thie thing. His evidence is that, his clan has been a party to the determination handed down by the Land Titles Commission on the 29 of February, 1996. The Land s Comon decided tded that the Plaintiff and the Yala Clan are not parties to the claim as t as they are not land owners of Gobe Main outh East Gobe Oil Fields.

From the evidence of the Plaintiff, it is clear that his his clan was a party to the proceedings before the Land Titles Commission hearing and they have applied for a review of that decision on a letter to the Chief Land Titles Commissioner dated 17th May 1996.

A news paper clipping in Post Courier - page 19 dated 9th August 1996 was attached and marked “B” to support the view that the Chief Land Titles Commissioner has declined to set up a review due to lack of funds. By a letter dat June 1996 1996 the Plaintiff’s lawyer wrote a letter to the First Defendant copied to all other defendants advising that no further commitments should be made in relation to Gobe Main and South East Gobe Oil Fields as they were an aggrieved party. correspondences seemed toed to have fallen on deaf ears as no response were made by anyone of those concerned.

In support of the Affidavit field by the Plaintiff the lawyer for the Plaintiff argued that their client has an arguable case before the Chief Land Titles Commissioner and therefore, the court should not disturb the orders made on 11th of December 1996. I note tha Plaintiff and hand his clan have a right to review pursuant to S. 36 of the Land Titles Commission Act 1962 as amended to date. The Plaintiff has also complied with S. 34 of the Act providing that an aggrieved party may within ninety days after the decision apply to the Chief Commissioner for a review of a decision. This is the reason why thentiff says that the orders ders I made on the 11 of this month should not be set aside.

In reply to the submission by the lawyr the Plaintiff, Mr Riddell submitted that the Plaintiff has no interest in the matter and and by the decision of the Land Titles Commission handed down on thof February, the Plaintiaintiff and his clan have no standing. e carefully read the evideevidence of all parties and considered them. I have also carefully coreidered submissions by both lawyers on behalf of their cli Theication by the Plaintifintiff was for restrainingining orders. trite law that the interlnterlocutory injunctions areretioremedies. T60; Two important issues need to be satisfied by a party before the Court ourt can exercise its discretion. Thst being the Plaintiffntiffntiff has to show that he has at least some legal status in a dispute and that he has an arguable case to the rhe seeks to protect by the injunction. This means that he must byow by evidence that that there is a serious issue to be tried and that it is an appropriate case for an injunction to issue. the duty of this Court tort to balance whether the impositf that restraining order iser is reasonable and necessary to protect the Plaintiff from some irreparable harm or whether damages woulsufficiently recompensed.&#ed. t also consider the possibossibility of harm that would be likely caused to the Defendants and the Plaintiff ability to meet an order in damages should they fail in their claim to the land in question. The second issue is wr or r or not on the balance of convenience an interlocutory injunction would be an appropriate remedy and in particular in relato the administrative decision made by the Land Titles Commission. The reasons for isor issuing an interlocutory injunction were spelt out by the Supreme Court in Robinson v National Airlines Commission [1983] PNGLR 476. Turt said at page 480:

&:

“The purpose of an interlocutory injunction is to p to preserve the status quo until the hearing of the main action ‘whther factors appear to be evenly balance it is a counsel ofel of prudence to take such measures as are calculated to preserve the status quo’, per Frost CJ in Mount Hagen Airport Hotel Pty Ltd v Gibbs and Anor [1976] PNGLR 316. No real principles calaid laid down as towhen they should or should not be granted except they are granted when just or convenient” and what faithin that description must differ substantially from case to case. As Lord Denning Ming M.R. said in Hubbard v Vosper [1972] 2 WLR 380 at 396:

‘In considering whether to grant an interlocutory injunction, the right course for a judge is to lt the whole case. He must have d not only toly to theo the strength of claim but also to the strength of the defence and then decide what is best to be done. imes it is best to grant aant an injunction so as to maintain the status quo until the trial. Aer times it is best not tnot to impose a restraint upon the defendant but leave him free to go ahead. The remedy by interlry iniunction is so useful that it should be kept flexible and discretionary. It must must not be mae suhe subject of strict ru#8217;

What the plaintiff must prove is that he has a serious, not a speculative case case which has a real possibility of ult success and that he has property or other interests which hich might be jeopardised if no interlocutory relief were granted. Tt becomes a matter of seef seeing if, in all the circumstances of the case the court should nonetheless exercise its discretion clining to issue an interlocutory injunction. In order to deterthis, the, the court wurt will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches and delay, the strength of tounds of defence suggested sted by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience: see Meagher pars 2167-2168.”

The Plaintiff’s assertion is in question to a decision by the Land Titles Commission in relation to ownership of the portion of lands now commonly referred to as Gobe Main and South East Gobe Oil Fields situated in the Southern Highlands of Papua New Guinea. I note from the Lands Titles Commission Act that the Plaintiff has a right to apply for a review which they have already done. The Chief Commissioner iiged under S. 36 of the Act to conduct a review of the decision of the Commissioner and he d he may either confirm or set aside a dec. I also note that the Act also provides for a right of Appeal to the National Court ourt what used to be the Supreme Court, see S. 38.

It is submitted on behalf of the 3rd and 4th defendants that, the Plaintiff has no right whatsoever under the Land Titles Commission determination handed down on the 29 of February 1996 because they have lost that right through that determination. I do not agree with theer wyer for the Applicant on this view on the basis that if I were to accept that proposition it would mean suppression of the Plaintiff’s right whose rights are protected by the Land Titles Commission Act for review and eventually for appeal: see SS. 34, 36 and 38 of the Land Titles Commission Act 1992 as amended to date. The case of Soso Tom Ors vOrs v The Independent State of Papua New Guinea and Ors Unreported OS 83 of 1996 was cited by Mr Riddell to support the prtion that, the Plaintiff must have “locus standi” in order for them to invoke toke this Court’s jurisdiction to seek relief. I do not read thse this wais way.

Although it also arose out of a Land Titles Commission determination, a host of declaratory orders were sought questioning the legality of S. 5 and 83 of the Mining Act 1992 and were said to be contrary to SS. 53 58 of the PNG Constitution. Two restraining ordere alse also sought, the first to restrain the government from issuing a licence to the developers and secondly, to restrain developers from dealing in any way with the benefits of compensationl the determination was revs reviewed. The Plaintiffs in Soso T82u’s case acknowledged to that Court that, their claim required interpretation or application of provisions of the Constitution which rests solely with the Supreme Court, see S. 18 of tnstitution. The appliapplicatioore me e me on 11th of December was only to restrain the parties from signing the agreement until the review was heard.

My view is that there is no arguable case before this Court as this is a claim in relation to land dispute already determined by the Land Titles Commission which decision is subject to review in accordance with administrative procedures set out in the Land Titles Commission Act itself. Iose that once the Chief Lief Land Titles Commissioner has received an application for review the parties to such dispute are statutory barred from further dealings in any way as a decision is ct to review which review iiew is also subject to appeal pursuant to S. 38 of the Act. It is my that the Plaintifintiff has not exhausted all the means to seek what they want through what is provided for under the Land Titles commission Act. A properoachhe Chief Land Land Titles Commissioner where he or sher she refuses to expedite a review under the Act because there are no fundmay be for the Plaintiffs to apply for an order in the nature of mandamus for the Chief Comf Commissioner to expedite a review so that the question for ownership can be quickly settled. I musrefore agree with theh the lawyer for the 3rd and 4th Defendants that, the Plaintiffs do not have standing in this Court and I must set aside the orders I issued on the 11 of December 1996.&#1he Plaintiff shall meet thet the costs in this motion to be taxed if not agreed.

Lawyer for Plaintiff: Paulus M Dowa Lawyers

Lawyer for 3rd & 4th Defendants: Gadens Ridgeway Lawyers