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Koti v Susame [2015] PGNC 6; N5860 (13 February 2015)

N5860

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 694 OF 2013

NATHAN KOTI, FOR AND ON BEHALF OF DUMUNA AKIKI CLAN OF DAMAENDE VILLAGE, NAHU RAWA LLG, RAI COAST DISTRICT, MADANG PROVINCE
First Applicant

SAWEN MOLI, FOR AND ON BEHALF OF GAMBAI CLAN OF RAMU VILLAGE, RAI COAST DISTRICT, MADANG PROVINCE
Second Applicant

SIMON T MACKERELL, FOR AND ON BEHALF OF OIMOKU DUMUNA TRIBE, OF GOVIRO VILLAGE, NAHU RAWA LLG, RAI COAST DISTRICT, MADANG PROVINCE
Third Applicant

OPUSIE AMESOHAFA, FOR AND ON BEHALF OF KOGULARI CLAN, HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE
Fourth Applicant

DAVID T ITANO, FOR AND ON BEHALF OF RANOFI CLAN, HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE
Fifth Applicant

V

HIS WORSHIP DAVID SUSAME, PROVINCIAL LAND COURT MAGISTRATE
First Respondent

NABURA MORRISA, FOR AND ON BEHALF OF BUMBU, BOPIRUMPUN, MUSUSAM & SANKIANG VILLAGES, (MARI GROUP), USINO-BUNDI DISTRICT, MADANG PROVINCE
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

BRUCE YAKU, FOR AND ON BEHALF OF SANGAN SAMBIYAL CLAN, OF MUSUAM, USINO-BUNDI DISTRICT, MADANG PROVINCE
Fourth Respondent

Madang: Cannings J
2014: 2, 12 December,
2015: 13 February

JUDICIAL REVIEW – review of proceedings of Provincial Land Court hearing appeal against decision of Local Land Court under Land Disputes Settlement Act Chapter No 45 – whether Provincial Land Court deliberated on grounds of appeal – whether Provincial Land Court decision unreasonable.

The applicants sought judicial review by the National Court of a decision of the Provincial Land Court, which had dismissed an appeal by the applicants against a decision of the Local Land Court, in favour of the second and fourth respondents. Two grounds of judicial review were pressed. It was argued that the Provincial Land Court erred in law by: (1) not judicially considering all grounds of appeal; and (2) making a decision that was so unreasonable, no reasonable court would have made it.

Held:

(1) The Provincial Land Court addressed and determined all grounds of appeal in the appeal against the decision of the Local Land Court. Ground 1 of the review was dismissed.

(2) The Provincial Land Court misapprehended the status of the "votes" of the two land mediators who, with the Local Land Magistrate, constituted the Local Land Court and overlooked the inherent uncertainty created by the two mediators giving written decisions contrary to the decision that was regarded as the decision of the Court. The Provincial Land Court's decision, in that sense, was unreasonable. Ground 2 of the review was upheld.

(3) The error of law involved in ground 2 was serious and permeated the whole of the Provincial Land Court's proceedings, the consequence being that it exceeded its jurisdiction. The National Court exercised its discretion to quash the decision of the Provincial Land Court.

(4) The question of what further relief should be granted was referred to mediation.

Cases cited

The following cases are cited in the judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Dale Christopher Smith v Minister for Lands (2009) SC973)
Dopsie v Tetaga (2009) N3722
Isaac Lupari v Sir Michael Somare (2008) N3476
Jack Afing v Martin Pari (2006) N3034
Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539
John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & Ors (2011) N4307
John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & his Worship Regget Marum OS 117 of 2004, 21.07.05 unreported
Martina Jimmy v Kevemuki Clan (2010) N4101
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Saboko v Commissioner of Police (2006) N2975
The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192

JUDICIAL REVIEW

This was a review by the National Court of the decision of a Provincial Land Court sitting on appeal under the Land Disputes Settlement Act Chapter No 45 against a decision of the Local Land Court.

Counsel

G Pipike, for the first applicant
S Moli, the second applicant, in person
S T Mackerell, the third applicant, in person
W Akuani for the fourth applicant
D T Itano, the fifth applicant, in person
S Phannaphen, for the first and third respondents
B Tabai, for the second respondent
K Aisi, for the fourth respondent

13th February, 2015

1. CANNINGS J: This is a ruling on an application for judicial review of the decision of the Madang Provincial Land Court, constituted by his Worship Mr David Susame, dated 16 August 2013, concerning ownership of customary land near the Ramu Sugar estate, Madang Province.

2. The Provincial Land Court's decision was to dismiss appeals by the various clans and tribes represented by the five applicants, Nathan Koti, Sawen Moli, Simon T Mackerell, Opusie Amesohafa and David T Itano, against a decision of the Local Land Court, constituted by Local Land Court Magistrate his Worship, Mr Ignatius Kurei, and Land Mediators, Mr Anis Animor and Mr David Harry, dated 30 March 2007. The Local Land Court decision was in favour of the second respondent, Nabura Morissa, and various villages he represents, the Mari Group, and the fourth respondent, Bruce Yaku and the group he represents, the Sangan Sambiyal Clan.

3. The appeal to the Provincial Land Court was made pursuant to Section 54 of the Land Disputes Settlement Act. Under Section 60 of that Act a decision of a Provincial Land Court on an appeal "is final and is not subject to appeal". However, that does not rule out a review. Under Section 155(3)(a) of the Constitution, the National Court "has an inherent power to review any exercise of judicial authority". It is well established that the National Court has power to review decisions of Provincial Land Courts (The State v District Land Court at Kimbe; ex parte Casper Nuli [1981] PNGLR 192; Jack Nou v Richard Cherake, Magistrate, Provincial Land Court, Port Moresby (2004) N2539; Jack Afing v Martin Pari (2006) N3034; Martina Jimmy v Kevemuki Clan (2010) N4101).

LITIGATION HISTORY

4. The dispute over this area of customary land has a long and complex history. Mediations took place from 1996 to 2001 which were ultimately unsuccessful. Since then, the following litigation events have occurred:

GROUNDS OF REVIEW AND RELIEF SOUGHT

5. This review – which is, I repeat, is a review of the Provincial Land Court decision of 16 August 2013 – is based on two grounds of review set out in the statement under Order 16, Rule 3(2)(a) of the National Court Rules, filed by the first applicant on 27 September 2013. A third ground of review in that statement was abandoned. Other similar statements were filed as other applicants joined the proceedings, but their grounds of review are largely repetitious and are disregarded. It is argued that the Provincial Land Court, constituted by his Worship Mr Susame, erred in law by:

1 not judicially considering all the grounds of appeal before it;

2 making a decision that was so unreasonable no court acting reasonably would have made it.

6. The applicants want the Court to quash the Provincial Land Court's order and to reinstate their appeal against the decision of the Local Land Court of 30 March 2007 or affirm the "majority decision" of the Local Land Court or remit the matter to the Local Land Court for rehearing.

1 DID THE PROVINCIAL LAND COURT FAIL TO JUDICIALLY CONSIDER ALL GROUNDS OF APPEAL BEFORE IT?

7. The applicants' notice of appeal against the decision of the Local Land Court of 30 March 2007, raised three grounds of appeal:

• Ground No 1: that the Local Land Court exceeded its jurisdiction by (a) failing to 'eliminate third parties' from the hearing; (b) failing to acknowledge that the applicants were the original inhabitants of the disputed land and giving too much prominence to the concept of "interest" in land under Section 67 of the Land Disputes Settlement Act; and (c) giving priority to foreign concepts of land ownership over the concepts prescribed by the Land Disputes Settlement Act.
  
• Ground No 2: that the Local Land Court conducted its hearing contrary to the principles of natural justice by (a) refusing to inspect the applicants' burial sites and villages; (b) restricting the rights of the applicants to challenge evidence given by other parties about customary sites; and (c) allowing affidavits of third parties to be admitted into evidence despite them being incomplete or not served and allowing late submission of documents by the first respondent.
  
• Ground No 3: that the Local Land Court made a decision that no court doing justice between the parties would have made, in that (a) the decision of the Local Land Court (constituted by a magistrate and two mediators) that was formally recorded was contrary to Section 23(3) of the Land Disputes Settlement Act as it did not reflect the fact that two members of the court made decisions contrary to the formally recorded decision; and (b) the decisions of the two Land Mediators were not annexed to the decision of the Local Land Court, contrary to what the decision itself stated.
  

8. The question that arises now is whether the Provincial Land Court judicially determined those grounds of appeal. In the previous judicial review I found that the previous Provincial Land Court constituted by his Worship Mr Singomat, which gave its decision dismissing the appeal on 1 September 2008, failed to judicially consider all grounds of appeal (John Anis on behalf of Dumuna Akiki Clan v Nabura Morrisa on behalf of Mari Group & Ors (2011) N4307). In the present case, I draw the opposite conclusion.

9. His Worship Mr Susame, with respect, had a much clearer appreciation of the grounds of appeal that had to be determined than did his Worship Mr Singomat. Mr Susame, after setting out the background of the case, clearly set out the grounds of appeal at paragraphs 11 to 17 of his written judgment. He proceeded to deal with them in seriatim. That was an eminently proper approach to take.

10. Ground 1(a) – that the Local Land Court exceeded its jurisdiction by failing to eliminate third parties – was addressed at paragraphs 18 to 30. His Worship stated that in his view this ground had been properly addressed in his Worship Mr Singomat's judgment and did not need to be re-addressed. But, in case that view was held to be incorrect, his Worship proceeded to address the argument. He concluded that the Local Land Court had properly exercised its discretion to allow so-called third parties to be heard, so ground 1(a) was dismissed.

11. Ground 1(b) – failing to acknowledge that the applicants were the original inhabitants of the disputed land – was addressed at paragraphs 27 and 28 of Mr Susame's judgment. His Worship alluded to the applicants' argument that they should be recognised as the owners of the disputed land as it was owned by their ancestors and that the first respondent – the Mari people – had only moved on to the land and established hamlets and gardens on it in recent times. His Worship found no error in the Local Land Court's determination of the issue, so ground 1(b) was dismissed.

12. Ground 1(c) – giving priority to foreign concepts of land ownership – was considered at paragraphs 29 and 30. His Worship noted that the argument underlying ground 1(c) was subsumed within ground 1(b) and that it was unnecessary to deal with it any further, so ground 1(c) was dismissed. I find that his Worship judicially determined ground 1.

13. Ground 2 – that the Local Land Court conducted its hearing contrary to the principles of natural justice – was addressed at paragraphs 31 to 50. His Worship cited Section 59 (principles of natural justice) of the Constitution, which provides that the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly. He stated that he had perused the documents and records of the Local Land Court and observed that all parties were heard and given the opportunity to cross-examine witnesses of other parties. A land inspection took place from 22 to 24 August 2006. Important land features, and villages and burial sites were identified. His Worship held that, after considering the record of the proceedings of the Local Land Court, he could not accept the argument, maintained in particular by Mr Moli (the second applicant) on behalf of Gambai Clan, that any party was denied the right to be heard. He emphasised that there was no evidence to support the allegations of fact in grounds 2(a) (refusal to inspect burial sites) and 2(c) (allowing incomplete and un-served affidavits to be admitted into evidence etc). His Worship concluded that ground 2 lacked merit and dismissed it. I find that his Worship judicially determined ground 2.

14. Grounds 3(a) and 3(b) – that the Local Land Court made a decision that no court doing justice between the parties would have made in that (a) the decision did not reflect the fact that two members of the Court made decisions contrary to the formally recorded decision and (b) the decisions of the two Land Mediators were not annexed to the decision of the Court – were dealt with together at paragraphs 51 to 64. His Worship regarded ground 3 as raising two arguments. First, that the Local Land Court's decision to award ownership of the land to the Mari Group was not supported by the evidence. Secondly, that the decision of the Local Land Court that was pronounced was a minority decision.

15. As to the first argument his Worship noted that the judgment of the Local Land Court was very comprehensive and that the Chairman, his Worship Mr Kurei, carefully discussed and analysed the evidence and that there were no obvious errors in his reasoning or findings. I point out here that, in my view, the argument about the decision to award the land to Mari Group was not a part of grounds 3(a) or (b). It might have been an argument or a sentiment expressed by the applicants at the appeal hearing but it is not an argument that falls within grounds 3(a) or (b) so strictly speaking it was not necessary for his Worship Mr Susame to address it. Having said that, I find no error of law in the manner in which his Worship determined the argument.

16. The second argument was the critical issue in the entire appeal. It is important to appreciate what the applicants were arguing before the Provincial Land Court. It is the same argument they put to the National Court in the previous judicial review. And they are putting it again in the present judicial review. They are arguing that the two Land Mediators on the Local Land Court decided the case in favour of the applicants (in particular the first applicant, Dumuna Akiki clan). They argue that though the judgment that came to be regarded as the judgment and decision of the Local Land Court was signed by the three members of the Court, it was, in fact, and in law, only the judgment and decision of the Chairman, his Worship Mr Kurei. There were two other decisions, one by Land Mediator Mr Harry, handwritten in English, the other by Land Mediator Mr Animor, typed in Tok Pisin. Both of those decisions were largely in favour of the first applicant's clan, Dumuna Akiki. They argue that under Section 23(3) of the Land Disputes Settlement Act the decision should not have been recorded in favour of the Mari Group.

17. Section 23 (constitution of Local Land Courts) is the provision that spells out the composition of a Local Land Court. Subsections (1) and (2) say that the Court shall be constituted by a Local Land Magistrate and two or four Land Mediators or other persons appointed by the Local Land Magistrate; and also prescribe criteria for appointment. Section 23(3) provides how decisions of the Local Land Court are to be made:

A decision of a Local Land Court shall be by majority vote, and where there is an equality of votes on any matter before the Court, the Local Land Magistrate has a casting, as well as a deliberative, vote.

18. The argument of the applicants was that, as a matter of fact and law, the members of the Local Land Court voted 2:1 in favour of awarding ownership of the land to them, not to the Mari Group.

19. His Worship appears to have understood the argument. He quoted Section 23 in full and stated at paragraph 53:

The law is clear. The decision of the Local Land Court shall be by majority vote but in my view the chair of the Court, [the] Magistrate has a casting as well as a deliberative vote.

20. His Worship then observed:

The decision that was pronounced and is subject to this appeal is very comprehensive and was deliberative by the Chairman. The Chairman had analytically discussed the evidence each party had adduced in support of their claims or interest in the land. The Chairman had also discussed the relevant principles of law and applied them in his attempt in resolving the dispute which has had a long history. He endeavoured to do justice amongst the parties and bring the dispute to finality with the findings and orders that were pronounced on 30 March 2007. After the two mediators signed the decision it was pronounced in open court.

21. His Worship stated that it appeared that the decisions of the two Land Mediators were not available on the date of pronouncement of the Court's decision. He concluded his determination of grounds 3(a) and (b) as follows:

Their decisions came only after and therefore do not affect the decision that was endorsed by all the members of the Court and was pronounced in open court.

Furthermore, decisions of both mediators are not decisions but rather declarative orders. They have not discussed in detail, logically overall evidence of the parties and principles of law (which I am sure they are not in a position to do so being ordinary persons) before coming up with the orders each of them made. In any case their decisions should have been made available to the chairman of the court for further deliberations amongst the members of the court prior to the final decision being pronounced.

I conclude therefore, the findings and orders that were pronounced on 30 March 2007 was the decision of the court.

The above discussion essentially answers ground 3(a) and (b) ... Accordingly this ground of appeal is dismissed.

22. In summary, his Worship's reasoning was that because the two Land Mediators signed the 31-page decision drafted by the Chairman Mr Kurei, which was pronounced in open court, they "endorsed" that decision, which became the decision of the Local Land Court. The fact that they did not agree with it, and subsequently each supplied written decisions contrary to the decision that they each endorsed, was inconsequential, his Worship ruled, for two reasons. First, the Land Mediators' decisions were late as the decision of the Court had already been pronounced. Secondly they were not actual decisions, they were just "declarative orders". Therefore the decision actually pronounced remained the effective decision. It was not a minority decision.

23. I have great difficulty with his Worship's reasoning. Indeed, in my view, it is, with respect, erroneous and irrational, for reasons I explain in ground 2 of the review; and it only directly addresses ground 3(a) of the appeal, not ground 3(b). However, it is evident that his Worship understood the nub of the argument underlying ground 3 – that the Local Court's decision was a minority decision of the Chairman – and his Worship provided reasons for rejecting the argument. It cannot really be said that his Worship did not judicially consider ground 3. I find that he did judicially consider it.

Conclusion as to ground of review 1

24. I find that his Worship Mr Susame had a reasonably clear appreciation of the three grounds of appeal. He set them out at the beginning of his judgment then largely determined them and gave reasons for doing so. It cannot be said that he ignored the grounds of appeal or did not understand them. I find that he judicially considered each ground of appeal. Ground 1 of the review is dismissed.

2 DID THE PROVINCIAL LAND COURT MAKE A DECISION THAT WAS SO UNREASONABLE NO REASONABLE COURT COULD HAVE MADE IT?

25. This is best described as an unreasonableness ground of review. The applicants argue that the Provincial Land Court's decision to dismiss the appeal against the Local Land Court's decision was unreasonable 'in the Wednesbury sense'. They argue that the decision of the Local Land Court that was formally recorded did not reflect the fact that the two Land Mediators, Mr Animor and Mr Harry, made decisions contrary to the formally recorded decision. By relying on the Wednesbury sense of unreasonableness they are referring to the principles laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, which have long been regarded as forming part of the underlying law of Papua New Guinea. As I pointed out in Saboko v Commissioner of Police (2006) N2975 and Dopsie v Tetaga (2009) N3722, and in the earlier judicial review of the previous Provincial Land Court, the test to apply is:

• is the decision being reviewed so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker would have made the decision?
  

26. If the answer is yes, the decision involves an error of law, the decision-maker will have exceeded his or her jurisdiction and the decision is susceptible to judicial review. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review will fail. The decision will be lawful unless it is infected by some other error of law or procedure.

27. I consider, as I did in the previous judicial review, that the test is satisfied in this case. There was compelling evidence before the Provincial Land Court that the two Land Mediators did not agree that the land be primarily awarded to the second respondent, the Mari Group. It does not matter whether the Land Mediators' decisions were supplied after the decision of the Chairman was signed and pronounced in open court on 30 March 2007, or before then. His Worship Mr Susame found as a fact that those decisions were supplied after 30 March 2007. But there is no evidence referred to on which such a finding of fact could so confidently be made. I note that, though Land Mediator Mr Harry's decision is undated, it appears to have been date-stamped by a fax machine with the date "Jan 24 07" (exhibit P1, annexure E), suggesting that his decision was forwarded to the chairman two months before the decision was handed down, on 30 March 2007.

28. I note that at page 28 of the judgment handed down on 30 March 2007, there is a paragraph which suggests that the Land Mediators' decisions were supplied before, not after, that date. After concluding that "it is presumptive Mari Group has the more probable vested interest in all the outlaying customary land of Ramu Sugar Estate", the following is stated, by way of introducing the orders of the Court:

Accordingly, this Court with reasons alluded and by majority decision by the members of the panel holds the following: (mediators' Decisions annexed)

29. This suggests that the Chairman had received the Land Mediators' decisions. But if that was the case, how could it sensibly be said that the majority decision was that the land was owned by the Mari Group? The majority decision was the opposite.

30. Perhaps the Land Mediators' decisions were not annexed, and they were not made available until later. If that was the case how was the Chairman lawfully able to hand down his own decision and label it as the Court's decision?

31. I find that, even if the decisions were supplied after 30 March 2007, those decisions could not be disregarded.

32. Nor does the fact that the Land Mediators signed the judgment of 30 March 2007 alter the only reasonable conclusion that can be drawn from the existence of their two decisions, which is that they did not agree with the Chairman.

33. I consider that Section 23(3) of the Land Disputes Settlement Act is the critical provision that determines the fate of this judicial review, and which should have determined the outcome of the appeal to the Provincial Land Court. I cited it earlier, but it bears repeating:

A decision of a Local Land Court shall be by majority vote, and where there is an equality of votes on any matter before the Court, the Local Land Magistrate has a casting, as well as a deliberative, vote.

34. This provision contains two propositions. First, that a decision of a Local Land Court shall be by majority vote. Secondly, where there is an equality of votes on any matter before the Court, the Local Land Magistrate – the Chairman – has a casting, as well as a deliberative vote. The second proposition is only relevant in the event of an equality of votes. This scenario might arise if for example one of the members of the Court dies or is unable to continue to act or abstains or is undecided. Here, there was no equality. It was a simple case of the Chairman voting one way and the Land Mediators voting the opposite way. The Land Mediators' votes should have prevailed. Instead the single vote of the Chairman prevailed.

35. His Worship Mr Susame has with respect erred in law by elevating the status of the Chairman's vote to that of a casting vote, when the precondition to the power to exercise a casting vote – an equality of votes – did not exist. His Worship also erred with respect by regarding the decisions of the learned Land Mediators as "not decisions but rather declarative orders". This in effect disenfranchised the Land Mediators. His Worship appeared to be saying that their votes did not count.

Conclusion as to ground of review 2

36. His Worship led himself into error and made a decision that can be properly regarded as irrational. No reasonable decision making body in the position of the Provincial Land Court could have decided ground 3 of the appeal against the applicants. It was an unreasonable decision. The second ground of judicial review is therefore upheld.

3 WHAT DECLARATIONS OR ORDERS SHOULD THE COURT MAKE?

37. As I pointed out in the previous case, a judicial review is a two-stage decision making process. First an applicant must establish one or more grounds of judicial review. If successful, the second stage of the process is persuading the court that a remedy should be granted (Mision Asiki v Manasupe Zurenuoc (2005) SC797; Dale Christopher Smith v Minister for Lands (2009) SC973). Deciding on what remedies should be granted is a matter of discretion (Isaac Lupari v Sir Michael Somare (2008) N3476).

38. The applicants have argued two grounds of review. The first was dismissed, the second was upheld. The second ground discloses that the Provincial Land Court made an unreasonable decision, in excess of its jurisdiction. The entire proceedings miscarried as a consequence.

39. I will therefore exercise the discretion of the National Court in favour of the applicants and quash the Provincial Land Court's decision. What other orders should be made? The following options are among those that are viable:

(a) Remit the matter to the Provincial Land Court for a rehearing of the appeal against the decision of the Local Land Court of 30 March 2007;

(b) Remit the matter to a freshly constituted Local Land Court;

(c) Confirm what the applicants claim to be the majority decision of the Local Land Court.

40. At this stage I do not favour any of them, for the following reasons:

(a) Remitting the matter to the Provincial Land Court would lead to a third appeal against the decision of the Local Land Court, and this should be avoided.

(b) Remitting the matter to a freshly constituted Local Land Court would lead to a third Local Land Court hearing and this should also be avoided.

(c) Confirming what is alleged to be the majority decision of the Local Land Court is not as simple as it sounds, for two reasons. First, the decisions of the two Land Mediators, though clearly contrary to the Chairman's decision, are not expressed in the same terms. Secondly the entire circumstances in which the judgment of 30 March 2007 was handed down are so unsatisfactory that it is unsafe to base any final decision on what actually transpired.

41. I consider that a new approach is required. A more effective way of resolving the dispute might be for the Court to refer the matter to the Chief Commissioner of the Land Titles Commission, so that a special Land Titles Commission might be set up under the Land Titles Commission Act. The question of customary land ownership could then be the subject of inquiry in an open forum and the competing claims of the parties could be examined afresh.

42. However, I have decided that before going down that path, something else needs to be tried: National Court-annexed mediation. Under Section 7(2) of the National Court Act and Rule 5(2) of the ADR Rules the National Court is empowered, of its own motion, to order mediation for a resolution of any part of any proceedings if at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that:

(a) mediation will not result in prejudice to the rights of any of the parties;

(b) it is reasonably within the ability and power of all parties to comply with a mediation order;

(c) mediation will not entail substantial work for the parties;

(d) the nature of the relief sought lends itself to mediation;

(e) a mediation at Madang can be set up very soon and this should be convenient to all parties;

(f) no party has expressed opposition to the prospect of mediation;

(g) Court-annexed mediation has not yet been formally attempted and it should be attempted before the remaining issues are determined;

(h) no party loses the right to have the remaining issues tried in court; and

(i) it is in the interests of justice to attempt mediation as a method of resolving disputes such as this.

43. I will by separate order set a timetable for an expedited mediation. It might not work but it is well worth a try. If the mediation fails, the matter will come back before me and all parties will be asked to make submissions on what orders the Court should make to determine these proceedings.

COSTS

44. Costs normally 'follow the event', ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that all parties bear their own costs.

ORDERS

(1) The application for judicial review of the decision of the Madang Provincial Land Court in Appeal No DLC 3 of 2007 of 16 August 2013 is granted.

(2) The order of the Madang Provincial Land Court in Appeal No DLC 3 of 2007 of 16 August 2013 is quashed.

(3) The decision of the Madang Local Land Court dated 30 March 2007, being the subject of the appeal to the Madang Provincial Land Court in Appeal No DLC 3 of 2007, is stayed.

(4) The question of what further orders should be made by way of determination of these proceedings shall under Section 7(2) of the National Court Act and Rule 5(2) of the ADR Rules, on the court's own motion, be referred to mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.

(5) The parties shall bear their own costs.

(6) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
________________________________________________________________
GP Lawyers: Lawyers for the First Applicant
William Akuani Lawyers: Lawyers for the Fourth Applicant
Solicitor-General: Lawyer for the First & Third Respondents
Tabai Lawyers: Lawyers for the Second Respondent
Manase Lawyers: Lawyers for the Fourth Respondent