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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. NO. 437 of 2019
BETWEEN:
BUNI MORUA for myself and on behalf of the 79 other Occupants of Portion 1189 of Laloki, Central Province (whose names are appended at the back of the report
Plaintiff
AND:
CHINA HARBOUR ENGINEERING COMPANY (PNG) LIMITED
First Defendant
AND:
CHINA HARBOUR ENGINEERING COMPANY LIMITED
Second Defendant
Waigani: Kandakasi, DCJ.
2019: 18th December
2020: 07th February
ENVIRONMENTAL LAW – Climate Change – Right to life – Right to healthy environment – States duty – Appearance of breach – Court invoking suo moto powers under s. 57(1) of Constitution and Court Rules to order joinder of relevant State authorities and orders for full report on steps taken under relevant and applicable domestic and international law.
JUDGMENT AND ORDERS – Powers of the Court –Courts power to act on its own motion or suo moto – S. 57 (1) of the Constitution – Court has power to act suo or moto for the protection or enforcement of human rights – Right to life – Right to healthy environment - When can it be exercised – Within proceedings already commenced or commencement of new proceedings – Invoking suo moto powers to order joinder of parties.
PRACTICE & PROCEDURE – Application seeking to dismiss proceedings for lack of standing or locus standi – Principles on – Interest in the subject matter – Nature of claim – Environmental damage –- Effect on right to life - Who has standing - Global jurisprudence –– Any person concerned with the breach or likely breach of his own or that of another’s right has standing – The Court also has power to act suo moto or “on its own motion” under s. 57 (1) of the Constitution
PRACTICE & PROCEDURE - Application seeking to dismiss proceedings for failure to disclose reasonable cause of action – Relevant principles - Need to disclose a cause of action known to law – Lack of particulars does not amount to failure to disclose cause of action – Request for further and better particulars proper cause and not application for dismissal - Application to dismiss is an abuse of process – Application dismissed with solicitor and own client costs.
PRACTICE & PROCEDURE – Application for default judgment - Insufficient pleadings - Need for proper pleadings with particulars – Application dismissed – Plaintiff required to file and serve an amended writ and statement of claim.
WORDS & PHRASES – “own initiative” – Court acting on its own or “suo moto” to commence proceeding or make orders or grant such reliefs it considers appropriate without any of the parties prompting.
Cases Cited:
Papua New Guinea Cases
Application by Ila Geno (2014) SC1313
David Kabomyap Allolim v. Biul Kirokim (2018) SC1735
Don Polye v. Jimson Papaki & Ors (2000) SC637
Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763
Ilai Bate v. The State (2012) SC1216
Kenn Norae Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886
Kerry Lerro v. Philip Stagg (2006) N3050
Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300
Mekere Morauta v. Ano Pala (2016) SC1529
Mendepo v. National Housing Corporation (2011) SC1169
Namah v. Pato (2014) SC1304
Philip Kikala v. Electoral Commission (2013) N4960
Philip Takori v. Simon Yagari (2008) SC905
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
PNG Forest Products Pty Ltd v. State [1992] PNGLR 85
Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329
Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [1981] PNGLR 396
Re alleged improper borrowing of AUD1.239 Billion Loan (2016) SC1556
Re Alleged Brutal Treatment of Suspects (2014) N5512.
Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266
Re Conditions of Detention at Beon Correctional Institution (2006) N2969
Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022
Re Conditions of Detention at Buka Police Lock-Up (2006) N4478
Re Conditions of Detention at Buka Police Lock-Up (2006) N4976
Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918
Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007
SCR No. 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362
Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886
Re Miriam Willingal [1997] PNGLR 119
Re Petition of MT Somare [1981] PNGLR 265
Re Release of Prisoners on Licence (2008) N3421
Rimbao v. Pandan (2011) SC1098
The State v Jimmy Ketu (No 2) (2007) N3394
The State v Transferees (2015) SC1451
Thomas Serowa v. Pacific Hires Ltd (2016) SC1517
Ume More v. The University of Papua New Guinea [1985] PNGLR 401
William Powi v Pastor Bernard Kaku (2018) SC1743
Overseas Cases
The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC.
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532.
Munn v. State of Illinois, [1876] USSC 149; 94 U.S. 113 (1876)
Sunil Batra v. Delhi Administration [1978] INSC 148; AIR 1978 SC 1675
Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621
Urgenda Foundation v. The Kingdom of Netherlands [2015] HAZA C/09/00546689
Leghari v. Republic of Pakistan (2015) W.P. No. 25501/2015
Re Court on its Own Motion v. State of Himachal Pradesh and Others M.A. Nos 389/2014, 1145/2015 and 1250/2015, 324/2016 & 325/2016 (Nat’l Green Tribunal).
Legislation Cited:
Claims By and Against the State Act 1996
Judicial Proceedings (Interest on Debts and Damages) Act 2015
Counsel:
F. Unage, for the Plaintiffs
H. Monei for the Defendants
07th February, 2020
1. KANDAKASI DCJ: I have heard and reserved a ruling on two competing motions. One of the motions is by the Defendants (CHECL) seeking a dismissal of the proceedings for a failure to disclose a reasonable cause of action and for the Plaintiffs’ lacking the necessary standing to bring this claim. The other motion is by the Plaintiffs (Moruas) seeking judgment in default of CHECL’s defence.
Relevant Issues for Determination
2. The issues the Court must determine are three namely:
(1) Do Moruas lack the necessary standing to bring these proceeding?
(2) Is there a failure in the Moruas pleading to disclose a reasonable cause of action against CHECL?
(3) Is there foundation for entry of default judgment against CHECL?
3. An affirmative answer to the first two issues will necessarily result in a dismissal of the proceeding. That will render a consideration of the third issue unnecessary. Hence, I will deal with the issues in the order presented.
Relevant Background and Facts
4. The background and facts giving rise to the issues before the Court is straight forward. The State through the Department of Works and Implementation contracted CHECL to reconstruct the Laloki Bridge just outside Port Moresby but located in the Central Province. That was in January 2015. Pursuant to that contract, CHECL carried out various works for the purposes of reconstructing the bridge.
5. The Moruas with their respective families live on a land described as an Agriculture State Lease volume 101, Folio 87, Portion 1189, Granville Milinch, Fourmil of Port Moresby (the Land). The Land is situated along the Hiritano Highway close to the Laloki Bridge. They claim that the work undertaken by CHECL for the purposes of reconstructing the Laloki Bridge has caused substantial environmental damages and release into the air dust, chemicals, damping of waste and other pollutants. They claim the damages include, air, water and noise pollution as well as damages to the Land’s top soil which they rely upon for farming to support their livelihoods. Further, they claim that CHECL fail to make good the damage they have done and since left the area. Furthermore, they claim that CHECL also committed acts of trespass and conversion in terms of entering the Land and without any prior approval or consent from them. They go on to claim they protested and complaint to no avail. Hence, they claim that they took the matter up with the relevant authorities which included the Conservation Environment Protection Authority (CEPA) to investigate. In particular they asked CEPA to ascertain if CHECL applied for and received the relevant permit or approval under the Environment Act. They also asked CEPA regarding CHECL’s responsibility to clean-up the damage they caused.
6. CEPA engaged three of his technical officers and scientist to carry out the Environmental Impact Assessment (EIA). At the same time, the Moruas engaged a Chem Clean Environmental Services Limited (CCESL), private environmental impact assessor company to do an EIA. Both of these entities completed their respective reports in September 2018 and on 9th October 2018. The reports confirm and support the Moruas claims. The reports also highlighted that CHECL did not apply for and receive an appropriate environment permit to carry out its works in accordance with the Environment Act 2000 as amended.
7. Based on the two reports referred to above, the parties met with CEPA and CCESL and discussed the possible options to resolve issues between the parties. Eventually, a proposal for a clean-up by CHECL was considered not viable as they did not have a license to carry out a clean-up work. According to the Moruas, that left only one other option and that was for CHECL to pay compensation or damages for the various damages it allegedly caused. That CHECL failed to do, which caused the Moruas to issue this proceeding on 18th April 2019.
8. The Moruas served the writ on CHECL at their registered place and address for service on 26th April 2019. CHECL appears to have engaged two separate law firms namely, Kandawalyn Lawyers and Ketan Lawyers. The law firms respectively filed notices of intention to defend on 7th May 2019 and 3rd June 2019. Shortly thereafter on 7th June 2019, CHECL filed a notice of motion seeking a dismissal of proceedings on grounds of no cause of action being disclosed and on the basis that the Moruas are not genuine landlords or owners of the Land. On 1st August 2019, the Moruas responded with the filing of their notice of motion for default judgment on the basis that CHECL have failed to file and serve their defence within the time period stipulated by the National Court Rules.
9. The motions eventually came before me on 18th October 2019. I fixed the motions for hearing and directed the parties to do some research on what is the international jurisprudence on standing or locus standi to bring environmental damage claims in context of the pressing issue of climate change. I also directed the parties to consider the application or not of the provisions of s. 57 of the Constitution at the home front. The parties were then required to return with considered written submissions.
10. When the motions returned for hearing on 10th December 2019, only the counsel for the Moruas filed a detailed written submission. Counsel for CHECL failed to file any submission and made oral submissions. Unfortunately, these submissions were not of much help as they failed to address the issues.
11. Bearing the background and relevant facts in mind I turn to a consideration of the first issues first, which concerns the Moruas’ standing or right to bring this proceeding.
Issue 1 - Do Moruas lack the necessary standing to bring these proceeding?
12. The argument on this issue for CHECL is essentially that, title in the Land is vested in persons other than the Plaintiffs. Consequently, they have no standing to bring this proceeding. In countering that argument, the Moruas, have produced in evidence a copy of the relevant title to the Land, which is an agriculture lease. The title document shows that the registered title holders are “Marry Aloysius, Buni Aloysius, Lucas Murao Aloysius and Lawrence Jawai Aloysius” as joint tenants. They claim that the lead Plaintiff is a member of the title holding family while the rest of them are persons who have been invited to live on the land by the title holders and those persons have been living off the land for many years. They claim that the activities conducted on the Land by CHECL has caused much damage and disruption to their ability to live off the land through farming and other means. The waste left behind by CHECL remains on the Land and the nearby Laloki River they rely upon for their survival. Affidavits file in support of the Moruas’ claim reveals, the kind the damage caused to the land and the kinds of waste left behind by CHECL. Proceeding on that basis they claim they have right to come to court and not just mere busy bodies or persons seeking an advantage out of CHECL.
13. Usually, a person’s right to bring a matter to Court, which is technically called “locus standi” or “standing”, is dependent on the nature of the proceeding or what is before the Court. In some kinds of cases, the statutory law already identifies who has standing. Starting at the highest, s.19 (3) of the Constitution clearly identifies and lists persons or authorities who can seek an interpretation of any constitutional question.
14. Section 19 along with s. 18 (1) of the Constitution were first considered in Re Petition of MT Somare [1981] PNGLR 265 and it formulated principles of underlying law, deliberately as it did, departing from the common law position. Subsequent decisions, affirmed, adopted and applied the rules of the underlying law as developed in the above case. One such decision is the one in Namah v. Pato (2014) SC1304. That decision summarized the rules of the underlying law formulated in Somare as follows:
“1 The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:
· has personal interests or rights that are directly affected by the subject matter of the application; or
· is a citizen who has a genuine concern for the subject matter of the application; or
· is the holder of a public office, the functions of which relate to the subject matter of the application.
15. The full Court bench comprising of, Salika DCJ (as he then was), Sakora, Cannings, Hartshorn and Poole JJ in the Application by Ila Geno (2014) SC1313 endorsed this summation of the principles and applied them. In so doing, the Court found Ila Geno had the standing outside the prescription of s.19 (3) of the Constitution. This is because he met all of the 4 tests under the Somare decision or rule. That decision and others like the one in Mekere Morauta v. Ano Pala (2016) SC1529 (per Kandakasi (as he then was), Yagi & Sawong JJ., have held that the Somare rules are sufficient and in no want of expansion and have proceeded to simply adopt and apply them.
16. The concept of having sufficient interest matter has been formalized in the National Court Rules in the context of judicial review. The Supreme Court in David Kabomyap Allolim v. Biul Kirokim (2018) SC1735 (per Batari J, David & Frank JJ) noted that and went on to say:
“25. The issue of locus standi in judicial review matters is covered under Order 16 Rule 3(5) of the National Court Rules. The Court will not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.
26. Whether a party has sufficient interest in the matter before the court essentially, depends on the degree of the relationship between the plaintiff and the subject matter of his complaint. The plaintiff will have standing if he can demonstrate a reasonably arguable case on questions of mixed fact and law, that some rights whether private or public has been affected or he has suffered some prejudice from an excess administrative or judicial decision making process.”
17. Earlier in Kenn Norae Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886 (Per Kapi CJ, Davani and Lay JJ), the Supreme Court had the issue of standing raised. In that case, the appellants, Kenn Norae Mondiai and PNG Eco Forestry Forum Inc did not have any pecuniary, proprietary or possessory interest in the outcome of the proceedings. Neither of them was a landowner or resident in the relevant forest areas. Also, they were not able to point to any personal right which was being infringed by the Respondents. Instead, the Court found they both had interest in the forest sector and had a genuine and serious concern over alleged breaches of the Forestry Act and the Court found they had the necessary standing to be in court over those issues.
18. Before coming to that decision, the Court had regard to a number of English, Australian and New Zealand cases which were considered in the re Petition of M. T. Somare case, which resulted in the Somare rules. The Court then concluded:
“Both in England and in New Zealand the courts have rejected the notion that some authority to test the lawfulness of actions of public authorities rests solely with the Attorney General by a Relator action. In Onus v Alcoa the High Court of Australia also seemed to be moving away from that view. And we would adopt the same position. It is unrealistic in this day to expect an officer of the executive government to mount legal challenges to the departments and authorities of government.”
19. Then turning to the particular circumstances of our country the Court said:
“In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.”
20. In the area of enforcement of the human rights and freedoms, s.57 of the Constitution is relevant and is on point. The provision clear states:
“57. Enforcement of guaranteed rights and freedoms.
(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.
(2) For the purposes of this section—
(a) the Law Officers of Papua New Guinea; and
(b) any other persons prescribed for the purpose by an Act of the Parliament; and
(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,
have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.
(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
(4) Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).
(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”
21. The following is clear:
(1) the Supreme and National Courts or any other court authorized by an Act of Parliament are authorized to enforce the various rights or freedoms provided for in the Constitution;
(2) this can be done either:
(a) on the Court’s own initiative; or
(b) on application by any person;
(3) the person coming to the Court must either;
(a) have an interest in the protection and or enforcement of his or her right or freedom; or
(b) is someone who is acting on behalf of another person who is not able to fully and freely exercise his or her rights under s.57 with or without the expressed authority of the person so represented;
(4) unlike in any other proceeding, the reliefs that can be granted are broad and:
(a) are not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms;
(b) but may be given in cases in which there is a reasonable probability of infringement; or
(c) in cases where an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.
22. The Constitutional Planning Committee (CPC) recommended the inclusion of this provision after a careful consideration of the experiences of other countries. The CPC considered both the factors for and against having such a provision and ultimately decided in favour of including this provision. In so doing, it said at paragraph 116 of Ch.5, Part 1, p.18:
“On balance, we have concluded that the human rights provisions should be enforced by the courts. We have recommended not only the Supreme Court, but the National Court and District Court (or Provincial)
Courts should be able to decide such cases. Our purpose here is to ensure that the opportunity to raise human rights issues should not be stifled by being confined to the somewhat
rarified atmosphere of the highest court of the land – the Supreme Court. People should be able to complain of a breach of a human right and have that complaint judicially decided without undue difficulty.”
(Underlining mine)
23. Frost CJ in SC Reference No. 1 of 1977 [1977] PNGLR 362 at pp.366-368 summed up the provisions of section 57 and what the CPC said in the following terms:
“Provision for the enforcement of the rights and freedoms conferred in Div. 3 is set out in Subdivision D – Enforcement, which contains ss.57 and 58. Such a right or freedom is to be protected by and is enforceable in the Supreme Court and the National Court, and that protection is to be afforded either on the initiative of the Court, or on application by any person who has an interest in its protection and enforcement, or if unable to exercise his rights, by a person acting on his behalf (s.57). For the purposes of the section the Law Officers of Papua New Guinea and other defined persons have an interest in the protection and enforcement of the rights, but the subsection does not limit the persons or classes of person who have such an interest (subs.(2)). Plainly a person who claims that his right is infringed is a person who has an interest in its protection and enforcement. If there were any doubt about this, it is dispelled by the Report of the Constitutional Planning Committee, which may be used, so far as it is relevant as an aid to interpretation of the Constitution (s.24(1))”
24. As the CPC itself said, the object of s. 57 was to enable a prompt intervention and judicial determination in respect of any actual, imminent, likely or reasonable probability of a breach of any person’s human rights. This is to happen without any “undue difficulty”. Standing or locus standi to bring proceedings for the enforcement or protection of human rights can be a challenge if left for the normal rules to apply. The founding fathers of our country therefore deliberately chose the process to be more flexible and easier to even enable the National and the Supreme Courts to act on their own initiative and not to wait for someone to bring proceedings before them. Waiting for the normal process to take its cause comes with the risk of allowing breaches to occur unabated and make any protection or enforcement effort a little too late, as loss or damages might already occur and victims of the breaches in some cases might not be still alive by then. The intention here is to ensure appropriate action is taken to minimize further harm and breach if the breach was occurring or if imminent, likely or reasonably probable, stop any breaches from occurring and hence avoid any harm, damage or loss.
25. It follows therefore that when it comes to enforcement of a human right or a freedom, there is no restriction on who can invoke the powers of the Court. The only test is, for the action must concern, actual, imminent, likely or reasonable probable breach of a human right or freedom. As long as that test is met, almost anybody, including the Court acting “suo moto” or acting on “its own initiative” or “on its own motion” can initiate proceedings under s.57 for the enforcement or protection of a human right.
26. One of the earliest cases in which the National Court acted on “its own initiative” or suo moto was in the case of Uma More v. The University of Papua New Guinea [1985] PNGLR 401 (per Pratt, Amet and Los JJ.). There, the trial judge, Bredmeyer J, had a case of certain students of the University of Papua New Guinea, who had forcibly disrupted lectures, erected and manned barricades at the main entrance road and selectively restricted entry to the University for a period of ten days. The University sought an injunction restraining such conduct. The defendants to those proceedings were six-named students “and members of the Students Representative Council and all those students now enrolled at the University who have National Scholarships other than Medical Students”. His Honour granted a permanent injunction. In so doing he was of the opinion that breaches of guaranteed rights and freedoms under the Constitution had occurred and that he could enforce those rights in any appropriate manner under s 57 on the Court’s own initiative. Accordingly, without hearing the persons who were going to be affected by his orders, he made orders stripping two named students and four unnamed students of their positions on the Students Representative Council, banned the six-named students from the campus, Port Moresby and Lae, ordered them to be returned to their villages and to secure due performance of the orders, remanded them in custody for five days.
27. On appeal, the Supreme Court saw no problem with the trial judge invoking the provisions of s. 57 of the Constitution on his own initiative. His problem however, was in, not according those who were to be affected by his orders their “natural justice” or right to be heard with the alleged breaches clearly put to them. The appeal was successful on that basis.
28. Whilst Pratt and Amet JJ did not address the issue specifically, Los J did in the following terms:
“The orders were given by his Honour on his own initiative in the exercise of his powers under the Constitution, s 57. Section 57 empowers the Supreme Court or the National Court to enforce guaranteed rights and freedoms under the Constitution on application by any person who has an interest or “on its own initiative”. His Honour was not incorrect in exercising his powers on his own initiative because of the evidence before him. But the question is, in exercising the powers under s 57 must his Honour disregard the principle of natural justice under s 59. On the authorities he must not.”
29. The Court was of the view that the problem occurred due to no procedure being prescribed for a court invoking the provisions of s. 57 “on its own initiative”. The Court therefore proceeded to suggesting a procedure that should be adopted when invoking s.57 of the Constitution.
30. In Constitutional Reference No. 1 of 1977 (supra), Frost CJ, Prentice DCJ, Williams J., Kearney J. and Prichard J recognized the availability of the power under s. 57 for any breach by police of s. 42 (2) of the Constitution. Criminal Law and Practice of Papua and New Guinea, Chalmers Weisbrot, Injia and Andrew, 3rd edition (1985) at page 659, succinctly set out the findings in that case as follows:
“The Court may reject a confession made voluntarily on the basis that it was unfairly obtained. The onus of proving unfairness
lies on the accused. In exercising its discretion, the court must weigh its disapproval of improper police conduct against the public
interest in seeing that all relevant evidence for and against the accused is before the court. Failure to comply with the provisions
of s42(2) of the Constitution, for that reason alone, does not render subsequent admissions by an accused person necessarily inadmissible.
However, the court may, upon its own initiative or upon the application of the accused, determine whether a protective order should be made under s57 of the Constitution to exclude the admission. Upon the facts of a
case, the court may very well feel bound, as the only way to protect the accused's rights, to reject an admission obtained in consequence
of the breach.”
(Underlining mine)
31. Later in Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266 Brunton AJ (as he then was) on finding a number of people were being held in custody and being punished without any formal charge or conviction and unhealthy living conditions, ordered the State to show cause why appropriate orders should not be made under s. 57 of the Constitution. In so doing his Honour noted that:
“The National Court can enforce the rights or freedoms under Pt II, Div 3 of the Constitution “on its own initiative”.
32. Later, Ellis J., in Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886, concerned with lack of Correction Services in the Enga Province initiated proceedings on his own motion. He then made certain interim orders aimed at protecting and enforcing the rights of persons held in custody. He also made an order for the Acting Commissioner for Correctional Services, the Governor of Enga Province and the Provincial Police Commander for Enga Province to discuss the issue and look for a long-term solution to the problem.
33. In addition to the above cases, there is quite a large number of cases, in which the National Court on its own initiative invoked the provisions of s. 57. In recent times, this includes a string of judgments by Cannings J, some of which are: Re Conditions of Detention at Beon Correctional Institution (2006) N2969; Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022; Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918; Re Conditions of Detention at Buka Police Lock-Up (2006) N4478; Re Conditions of Detention at Buka Police Lock-Up (2006) N4976; Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007; Re Release of Prisoners on Licence (2008) N3421 and Re Alleged Brutal Treatment of Suspects (2014) N5512.
34. Added to the list of cases in which the National Court as acted in suo moto, for the protection and enforcement of other persons human rights is the case of Re Miriam Willingal [1997] PNGLR 119. That was in a case where a community human rights interest group, namely, Individual and Community Rights Advocacy Forum Inc (ICRAF) successfully brought an application under s 57 seek protection and enforcement of an eighteen (18) year old young girl’s right. She was included as part of customary compensation payment. The Court made certain orders stopping that from happening.
35. Based on these cases, we could safely come to the conclusion that the ability of the National Court or Judges with the endorsement of the Supreme Court in Uma More (supra) to act on their own initiative under s. 57 of the Constitution for the protection or the enforcement of the human rights is a well-established position in PNG. That ability to act on “its own initiative” comes to play either within a proceeding already before the Court as in the Uma More case or on a totally new court proceeding the Court itself initiates as did the National Court in the many cases I have already referred to.
36. Recently however, only one decision has gone against that accepted position. That is the recent decision of the Supreme Court in The State v Transferees (2015) SC1451 (per Sakora, Gavara-Nanu and Ipang JJ.). The matter went on an appeal from a decision of Cannings J., who invoked s. 57 of the Constitution to inquire into possible breaches of the human rights of certain refugees. The Supreme Court held as follows:
(1) the National Court (and also the Supreme Court) cannot commence proceedings on its own initiative;
(2) the National Court cannot conduct proceedings using inquisitorial procedures – it must use adversarial procedures;
(3) the National Court cannot conduct an inquiry;
(4) Section 57(1) of the Constitution only allows the Court to enforce human rights on its own initiative in the context of existing court proceedings, commenced by a party, not by the Court; and
(5) Order 23, Rule 8 (commencement of proceedings by the court) and Form 126 of the National Court Rules and other laws Cannings J., invoked in commencing the proceeding before him were contrary to the intent and spirit of s.57 of the Constitution and are unconstitutional.
37. Those views were obiter dictum only as those were not the issues before the Supreme Court. What was before the Supreme Court was Cannings J.’s refusal to disqualify himself from the case. Hence, the Supreme Courts views are not binding: See Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300 (at paras 132 -134) and Philip Kikala v. Electoral Commission (2013) N4960 (para 66); The State v Jimmy Ketu (No 2) (2007) N3394 (para 15 and 16).
38. Even if the decision in the Transferees was not obiter dictum, with the greatest of respect however, I have difficulty accepting the decision as good law. Here is my reason for holding that view. Of the three judges constituting the Court, only Gavara-Nanu and Ipang JJ., quoted and considered the provisions of s. 57 (1) and Sakora J., agreed with them. Ipang J., considered the meaning of the phrase “on its own initiative” as used in s. 57 (1) of the Constitution in the following way:
“The phrase “on its own initiative”, what does the phrase really mean? The Concise Oxford Dictionary Tenth Edition Ed. by Judy Pearsall defines the word “initiative” as the ability to initiate, the power or opportunity to act before others do, or without being prompted by others. To initiate is therefore to cause a process or action to begin.”
39. Unfortunately, with respect, his Honour did not apply the meaning of the phrase he so ascertained to the provisions of s.57. Also, he should have but, with respect, failed to say what that meant in the context of the whole of the provision as well as the purpose or objective of having this provision. Indeed, with respect, his Honour did not give any consideration to the purpose or object of having this provision in the Constitution, which I discussed at paragraph 22 above.
40. Gavara-Nanu J., gave consideration to the meaning of the word “initiative” and decided what that meant in the following terms:
“In my respectful opinion an ‘initiative’ of a court under subsection (1) relates to its discretion as to an order or a declaration it may make in the particular circumstances of a case. Such an order or a declaration must be proper and reasonable and made according to law and the court must exercise its discretion judicially: Kumagai Gumi Co. Ltd v. National Provident Fund Board of Trustees (2005) SC776 and Avia Aihi (No.1) (supra). I am of the opinion that a proper exercise of power by a court under s. 57 (1) would involve the making of an order or a declaration only. It does not confer power on a court to commence or initiate a proceeding as was the case here.”
41. Later his Honour added:
“In regard to s. 57 (3) of the Constitution, I find that it confers power on a court only to make an order or a declaration
to enforce a statutory right or duty: Amaiu v. Commissioner of Corrective Institutions and the Independent State of Papua New Guinea
[1983] PNGLR 87. The court’s jurisdiction under s. 57 (3) is derived from s. 57 (1) and a court’s power to make an order or a declaration
under this subsection only arises upon an application being made by a party. Consequently, I find that the court’s power under subsection (3) was wrongly invoked by the learned primary judge to issue
summonses against certain individuals.”
(Underlining mine)
42. His Honour then went on to cite a number of cases, namely the decisions in Constitutional Reference No. 1 of 1977 (supra), Ralph Rakhin and Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329; Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [1981] PNGLR 396 and a few more. However, with respect, these cases did not deal with the question of a Court or a Judge initiating proceedings to enforce or protect human rights.
43. His Honour, with respect, also did not give any consideration to the purpose and or object of having s. 57 in the Constitution. Similarly, again with respect, His Honour did not contextualise the word “initiative” as used within the meaning of s. 57.
44. Both their Honours, Gavara-Nanu and Ipang JJ., with respect, did not give any consideration to the decision of the Supreme Court in Ume More’s case. Similarly, they did not have any regard to the various National Court decisions which invoked the provisions of s. 57 of the Constitution. Additionally, both their Honours failed to note or remind themselves that, Courts usually have the power to act “suo moto” for the enforcement or protection of human rights and in other contexts as well. In some cases, there are statutory foundations for this power where the phrase “on its own initiative or on application by any person” as it appears in s. 57 of the Constitution is commonly used. An example of this is the provisions of s. 28 (1) of Supreme Court Act (Chp.37) has this provision:
“(1) If on an appeal against conviction, the Supreme Court thinks that—
(a) a miscarriage of justice has occurred; and
(b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,
the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.”
(Underlining mine)
45. There is no recorded controversy over the application of such provisions. Instead, we have cases in which the provisions have
been applied. See for example Ilai Bate v. The State (2012) SC1216 (Injia CJ, Cannings J, Gabi J).
Similarly, there are number of National and Supreme Court Rules which carry similar language in a number of contexts some of which
I list below:
1. Order 5 Rule 8(1) of the National Court Rules which states:
“(1) Where a person who is not a party—
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.”
(Underlining mine)
There is a large body of case law that recognizes the Court’s power to act on its own motion. See for example, the authorities on point in the decisions in PNG Forest Products Pty Ltd v. State [1992] PNGLR 85; Don Polye v. Jimson Papaki & Ors (2000) SC637, Rimbao v. Pandan (2011) SC1098, Mendepo v. National Housing Corporation (2011) SC1169, Francis Essacu Baindu v Joseph Jerry Yopiyopi (2019) SC1763 and PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126.
2. Rule 18 of the Election Petition Rules which states:
“Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:
(a) order that the petition be dismissed where the defaulting party is the petitioner; or
(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(c) make such other orders as it deems just.”
(Underlining mine)
Again, there is no record issue around the Court have the power to end proceedings on its own motion under this rule. Instead, there has been ready recognition and upholding of such powers: See for example William Powi v Pastor Bernard Kaku (2018) SC1743 (Yagi, Kariko & Polume-Kiele, JJ)
3. Order 3, Rule 3 of the Supreme Court Rules, which states:
“Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it.”
(Underlining mine)
As with the earlier provisions, there has been no controversy on the Court having the power. Most of the cases have recognized that power and, in some cases, have applied it: See for example, the decisions in Re alleged improper borrowing of AUD1.239 Billion Loan (2016) SC1556 (Salika DCJ, Mogish J, Cannings J, Kassman J, Higgins J)
4. Rule 5(2) of the ADR [Alternative Dispute Resolution] Rules states:
“The Court shall on the request of all parties to a proceeding or on the application of any party to a proceeding or on its own motion order mediation for:
(a) a resolution of all or any parts of the proceedings; or
(b) failing settlement, identify and limit the real and meritorious issues in the proceedings that warrant judicial consideration and determination; and/or
(c) enable the parties to reach consensus on the conduct of litigation.”
The pattern of the courts recognizing and allowing for an application of the power of a court to proceed on its own motion continues even in this instance. See for example, Thomas Serowa v Pacific Hires Ltd (2016) SC1517 (Cannings J, Collier J, Ipang J)
46. Further, there is nothing in their Honours’ judgment that shows, they duly noted that the power to act suo moto is not unique to PNG. The highest Court or judicial officers have had recourse to the suo moto powers elsewhere in the commonwealth jurisdictions. In Pakistan the higher Judiciary does that with greater intensity and scope following the signing of the Quetta Declaration in 1991 by the judges of the Supreme and the Higher Courts.[1] That eventually relaxed the doctrine of locus standi and enabled many including, the judges or courts themselves, to initiate proceedings as was done in the case of The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC. India started doing likewise, from around 2002. However, the foundation was laid by the Supreme Court’s landmark decision in Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532. By 2010, such initiatives became markedly more prevalent. This consists of cases in which the label suo moto has been applied to cases in which persons other than the courts or judges initiated the proceedings as well as many cases in which judges initiated the proceedings. Bangladesh is also active in its recourse to the suo moto powers in human rights and public interest cases. Other judiciaries in the common law countries also have had recourse to suo moto powers.
47. A closer look at the cases on suo moto, presents a number of interesting features in almost all the cases that have invoked the suo moto powers of the courts. They all depart from the court’s regular mode of operation. Instead, of the courts taking a more passive role they have become more active and directed how the cases should be dealt with and deliver prompt directions, judgments or orders. They have stepped out of the normal or traditional adversarial role to more inquisitorial roles. Institutional time and space have been shortened to enable prompt hearings and disposals. This has seen to an elimination and liberation from the different layers in the normal handling of court files and cases from filing, to pleadings, to interlocutories and interrogatories which has caused so many inordinate and lengthy delays without getting to a final outcome. The imperative has been to connect with the immediacy of the events. The courts have been able to project themselves into the “moment of action, to act at the coal face, where the rubber meets the road” so to speak. They have all aspired to correct injustices without being constraint by forms and formalities. These kinds of interventions have been very public with much public endorsement.
Applying the Law to the Present Case
48. In the present case, the Moruas are claiming environmental damage, in addition to claims for damages for trespass and possible conversion. They have filed affidavits which show they are connected to the Land on which the alleged conducts of the CHECL took place. These affidavit evidence shows, the lead plaintiff is a member of the family that owns the Land. The others have been permitted or invited onto the Land long time ago. All of them live off the land with their homes built on the Land and they grow food crops and vegetables and raise animals to support themselves. The alleged activities of the CHECL has affected each of them directly. Clearly therefore, they are not busy bodies coming to Court complaining about something that does not affect them personally. Instead, I find they have been directly affected and have a direct interest in this matter and are entitled to come to Court through these proceedings.
49. At the same time, I note that, through these proceedings, they are effectively claiming their right to life and healthy environment has been breached. With climate change being real and its many risks being here facing humanity now, I also note that there is a worldwide focus on the environment and human activities that are impacting adversely on the environment. For these issues impact on the survival of the human race. The fundamental right of right to life, which is guaranteed by s. 35 under our Constitution has received a much broader definition. In the first known case of Munn v. State of Illinois, [1876] USSC 149; 94 U.S. 113 (1876) the dissenting view of Justice Field in the US Supreme Court, said the term “life” means something more than a mere animal existence. It embraces within itself not only the physical existence but also the quality of life. The Indian Courts have repeatedly elaborated on that definition to include the right to lead a healthy life to enjoy all faculties of the human body in their prime conditions. This has been extended further to include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a person’s life. The decisions of the Indian Supreme Court in Sunil Batra v. Delhi Administration [1978] INSC 148; AIR 1978 SC 1675 and Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621 to name a few are cases on point.
50. Recent developments internationally, has built on such jurisprudence and has resulted in a recognition of a right to a healthy environment as a matter of law. This right has its origin in the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) of 1972. The very first principle in the declaration states
“man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”
51. As the Special Rapporteur John H Knox puts it:
“Since 1972, the right to a healthy environment has gained widespread public and legal recognition across the world. Governments have incorporated it into constitutions and environmental legislation. The right to a healthy environment has also been incorporated into regional human rights agreements and regional environmental treaties. Governments have made genuine efforts, with varying degrees of success, to respect, protect, fulfil and promote this right. Over the past forty years, national courts, regional tribunals, treaty bodies, special procedures and many international institutions have contributed to defining the content, scope and parameters of the right to a healthy environment, as well as its relationship with other human rights.”[2]
52. It should follow therefore that a failure of states to take adequate steps to address climate change may constitute a violation of the right to a healthy environment. A number of Courts, globally have recognized this right. Good examples of cases on point include the decision of the Hague District Court, in Netherlands, in the matter of Urgenda Foundation v. The Kingdom of Netherlands [2015] HAZA C/09/00546689. There the Foundation brought a claim challenging effort made by the then newly elected Dutch Government to back away from the previous Government’s climate change mitigation commitments. The Court looked to Netherland’s international commitments which did not yet include the Paris Agreement to interpret the relevant constitutional duty of care by the Dutch Government to her citizens and others. It then concluded, that the duty of care prohibits the efforts of the new Government. That came from a conclusion by the Court that the State has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.”
53. Another, is the decision of the Lahore High Court’s Green Bench in Leghari v. Republic of Pakistan (2015) W.P. No. 25501/2015, in UN Environment, “The Status of Climate Change Litigation A Global Review” May 2017, p.15. There the legal basis for the action was similar to the Urgenda but it was focused on mitigation commitments. The Court concluded that the Government’s “delay and lethargy” in implementing Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014-2030) “offends the fundamental rights of the citizens which need to be safeguarded”.
54. A final case, I make mention of is the decision of the Indian National Green Tribunal in an action initiated suo moto by the Tribunal. The case is Re Court on its Own Motion v. State of Himachal Pradesh and Others M.A. Nos 389/2014, 1145/2015 and 1250/2015, 324/2016 & 325/2016 (Nat’l Green Tribunal). There the Court acted on its own initiative and exercised powers vested in the Court by Article 21 of India’s Constitution. The tribunal ultimately, ordered the authorities in the State to undertake several measures to protect against environmental harms made more likely by climate change.
55. Actions similar to those taken in Netherlands and Pakistan have been taken in a number of other countries, such as Belgium, Switzerland, New Zealand, Austria, Colombia, Norway, Germany and Peru to name a few. Some are still pending at the Court of first instance or at appeal stages. Some have succeeded and others were dismissed.[3] Even though, some of these court actions may have failed, they have however, successfully highlighted the issue of right to healthy environment which is necessary to a full exercise of the fundamental right of, right to life.
56. What does these mean for the case at hand? In my view, it means anyone could come to National or the Supreme Court in PNG, even the Courts on their own motion or acting suo moto. Section s. 57 (1) of the Constitution lays the necessary foundation for them to do so provided, they can connect that to an imminent, likely or reasonably probable breach of a right. Of all rights, the right to life is important and is central in my view to all other rights. Any human activity that is taking place or likely to take place that as an adverse impact on the environment no doubt, gives rise to the risk of environmental damage which could give rise to a possible breach of the fundamental right of, right to life which is dependent on a safe and clean environment. If the activities are large scale and serious, they could single handedly cause serious environmental harm and damage. If they are smaller, a repeat of such activities over time or combined with other adverse human activity already occurring can have an adverse impact on the environment. Unless, government properly and sufficiently, legislate, control, monitor and evaluate consistently all human activity and take appropriate actions against offenders, the risk of adversely affecting the environment and hence the right to life is there. Hence, any person concerned with his or her own or that of others’ rights, has the right and opportunity to come to Court under s. 57 (1) of the Constitution. This provision already grants them the necessary standing to bring appropriate claims for enforcement or protection of human rights.
57. The claim before me concerns the Laloki Bridge redevelopment and construction, which was a State project. Yet, on the evidence before the Court and the Moruas pleadings, I note with concern that the CHECL was not issued an appropriate permit under the Environment Act 2000 as amended to carry out the activities it carried out. Having failed there, it seems also that, the State through CEPA has failed to monitor CHECL’s activities so as to ensure there was nil or minimal harm or damage done to the environment and more so, ensure that the rights of the people near the project site were not adversely affected. This failure appears to have resulted in the alleged environmental harm and damage and the alleged contaminates being introduced into the environment and have not been removed by CHECL. Oddly, I note also that, CHECL could not be permitted to clean up the area because it has no permit to do so. I pose to wonder how many more human activity such as those carried out by the various mines, logging, road construction and other activities which have serious impacts on the environment are not similarly permitted or if permitted how many of those are closely and carefully monitored and evaluated to regularly ensure there is nil or very minimal damage or harm done to the environment. We will not know until the CEPA and those responsible are able to fully account for all known human activity in PNG that has an impact on the environment and the relevant and necessary evidence is placed before the Court. For that purpose, CEPA and the other relevant authorities need to be joined as parties to this proceeding.
58. Proceeding on the basis of the foregoing reasons, I dismiss the claim or argument that the Moruas lack the necessary locus standi or standing to bring this proceeding.
Issue 2 - Is there a failure in Moruas’ pleading to disclose a reasonable cause of action against CHECL?
59. Turning then to the second issue, I note my discussion in the foregoing especially those concerning the nature of the Moruas’ claim lays the necessary foundation for an answer to the second issue. In short, it is very clear that the Moruas are claiming damages for trespass, possible conversion and for environmental damage. However, the pleadings need to be seriously revisited to properly lay the factual and legal foundation for these claims and a proper foundation for each of the plaintiff’s damages to be assessed in the event that liability is established against CHECL. As they are now, it would prove much more difficult for example to work out exactly what each of the plaintiffs’ claims are and the basis to assess each of their damages. This can be cured by amendments and not by an order dismissing the proceeding.
60. The law on summary dismissal of a case is well settled in our jurisdiction and is crystal clear. In Kerry Lerro v. Philip Stagg (2006) N3050, I summarized the relevant principles on summary judgment at paragraph 13 of the judgment as follows:
“1. Our judicial system should never permit a plaintiff or a defendant to be “driven from the judgment seat” in a summary way, “without a Court having considered his right to be heard.” A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.
‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.’
61. Then I added another relevant principle in the following terms at paragraph 14 of the judgment:
“14. To these principles I had that, the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O.1, r.7 of the Rules1 in appropriate cases. ”
62. This summation of the law and the addition I made has been endorsed and applied by many Supreme and National Court judgments. The Supreme Court first did that in its decision in Philip Takori v. Simon Yagari (2008) SC905. In its own words, the Supreme Court gave the endorsement in these terms:
“25. We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O 12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments.”
63. Applying these principles to the case then before it, the Court noted that the case before it concerned, the Respondent (the State) was effectively attacking the Appellants’ statement of claim for insufficiency of pleadings more than a total failure to disclose a reasonable cause of action. The Court noted that the Court Rules made provision O. 8 r36, r50 and r51 to take care of and remedy these kinds of problems and went on to say:
“It is not only a good practice but also fair and equitable for a defendant faced with such a bad pleading as might have been the case here, to request for further and better particulars from the party responsible for such poor pleadings or to amend the pleadings and plead with clarity and with all of the appropriate particulars. When such a request is not appropriately responded to or ignored, the party making the request would be entitled to apply to the Court for appropriate orders including remedial orders for any failures to comply with any such orders, at the cost of the defaulting party. After all, as has been noted repeatedly by both this and the National Courts, the aim must be to do justice on the merits, unless there is a deliberate or inexcusable noncompliance of the Court’s orders and the rules of the Court.”
64. At paragraphs 32 and 33 the Court went on to find that the State through its lawyers clearly failed to note and appreciate the “distinction between a total failure to disclose a cause of action and a failure to plead with sufficient particulars and the different consequences”. As a result of that failure, the Court found further that, the State did not make any request for further and better particulars of the cause of action that was pleaded against them and if need be, follow through with an application under O 8 r 36 for further and better particulars. Further, the Court expressed the view that had the:
“State and its lawyers truly appreciated the distinction between a failure to disclose a cause of action and a lack of further and better particulars as well as the other principles developed around O 12 r 40, they would not have made their application at the first place, without first exhausting the remedies for lack of further and better particulars.”
65. I find the case before me is similar if not on all fours on this point with the decision in the Philip Takori case. As I had already observed, the Moruas are clearly claiming damages for trespass, possible conversion and environmental damage. Paragraphs 6 – 25 of the statement of claim are relevant. Clearly, these are not the best of pleadings in these kinds of cases. It is obvious the draftsman has not used any pleading precedent for any of the causes of action alleged or pleaded. Rather than state the relevant facts succinctly with particulars in logical and proper sequential order, the pleadings are out of logical sequence and include some evidence, submissions and or arguments without pleading the factual foundation. All these can be cured by appropriate amendments. A simple request for better pleadings with particulars could have alerted the Moruas’ lawyers to revisit the statement of claim and plead properly. If that failed, an application for orders for such pleadings would have been readily granted. As did the State in the Philip Takori case, CHECL rushed to this Court with its application for dismissal.
66. Again, as did the State in the Philip Takori case, by their application, CHECL and his lawyers, demonstrated a complete lack of understanding and appreciation of the relevant principles on summary judgment applications and the law and practice on pleadings. Or if they did, they chose to deliberately go against the well-established law and practice and procedure in our jurisdiction. If the law was not clear, it was made clear by the easy to follow summation in Kerry Lerro’s case as endorsed by the Supreme Court in the Philip Takori case. The many other National and Supreme Court decisions that have adopted and applied these summations have re-emphasized the soundness of these principles and the need for adherence. Following this clarity, we should have seen much restraint in bringing applications for summary judgment except in the clearest of cases. Unfortunately, many lawyers are repeatedly filing applications for summary judgment when they are not warranted. At best, these kinds of application are an abuse of the process of the Court. Further, such applications achieve increased costs to the parties, delays in reaching final judgment on the substantive merits of the case and unnecessarily take up the Court’s limited time and resources. This calls for appropriate sanctions by way of an order for costs on solicitor and own client basis against parties and lawyers who readily come up with such baseless applications. Such orders are necessary to prevent repeats of such applications and eliminate the risks of increased costs and unnecessary delay in proceedings.
67. For the foregoing reasons, I answer the second question in the negative. Based on this and my answer to the first question, I order a dismissal of the application to dismiss the proceeds. I will order costs to follow that event against the Defendants on a solicitor and own client basis for bringing an application that was clearly not likely to succeed from the very beginning. Had the Defendants properly understood the relevant principles governing their kind of application, they would not have brought the application at the first place. Their unwarranted action has resulted in unnecessary outlay of costs, time and resources for the parties and the Court.
Issue 3 - Is there foundation for entry of default judgment against CHECL?
68. This leaves me to deal with the third and final question. I have already commented on the pleadings in the Statement of claim. I have also expressed the view that, whilst there is a disclosure of a claim for damages for alleged trespass, possible conversion and environmental damages, they are insufficiently pleaded and need to be revisited. Proper pleadings lay the foundation for a plaintiff’s claim and a defendant’s defence to a claim against him or her. Default judgments can be signed if there is proper foundation in a plaintiff’s statement of claim to form the foundation for determining liability against a defendant and assessing the plaintiff’s damages. Where the pleadings are poor and particulars are required as in this case, no default judgment should be entered as there would be no proper foundation in the pleadings for any judgment. This is the case here. There is no need for me to address the other usual considerations to determine whether or not to grant applications for default judgment. Accordingly, I answer the third question in the negative. Proceeding on that basis, I decline the application for an entry of default judgment against the Defendants and order a dismissal of the Plaintiffs’ application for default judgment with costs.
Formal Orders
69. On the basis of the foregoing reasons I ultimately make the following orders:
(a) Ruel Yamuna in his capacity as Managing Director of the Conservation and Environment Protection Authority (CEPA) and in his capacity as Director of Environment under s. 15 of the Environment Act 2000 as amended as the Third Defendant;
(b) Environment Protection Authority as Fourth Defendant;
(c) the Secretary for the Department of Environment and Conservation as the Fifth Defendant;
(d) Honourable Mr. Wera Mori as Minister for Environment and Conservation as Sixth Defendant; and
(e) The Independent State of Papua New Guinea as Seventh Defendant.
________________________________________________________________
Unage Lawyers: Lawyers for the Plaintiff
Davidson and Company Lawyers: Lawyers for the First & Second Defendant
[1] This is based on a number of learned authors work namely: Marc Galanter, Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary, FIU Law Review, 2014, Vol. 10 N0. 1, Art. 8; and Aman Ullah, Public Interest Litigation: A Constitutional Regime to Access to Justice in Pakistan, located at http://pu.edu.pk/images/journal/studies/PDF-FILES/Article_12_v19_2_18.pdf
[2] Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment, A/73/188, 19 July 2018.
[3] See UN Environment, “The Status of Climate Change Litigation A Global Review” May 2017.
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