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Mangobe v Estate of the Late Mokola Kamiali [2022] PGNC 140; N9582 (13 April 2022)

N9582

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1416 OF 2011


BETWEEN:
HARABE MANGOBE & ORS
Plaintiffs

AND:
ESTATE OF THE LATE MOKOLA KAMIALI
by his personal representative Emmanuel Kamiali
First Defendant


AND:
ILAILA DEVELOPMENT CORPORATION LIMITED
Second Defendant


Waigani: Shepherd J
2020: 10th & 23rd June, 6th November
2022: 13th April


LAW OF TORTS & EQUITABLE REMEDIES– fraud - tort of deceit – equitable remedy of unjust enrichment – principles relating thereto – duty of fiduciary to disclose and account for monies flowing from prior judgment of National Court to entitled plaintiffs – duty of consultant to account to entitled plaintiffs for alleged consultancy fees and administration costs – breach of duties – measure of damages for breach.


INTEREST ON DAMAGES – Court has wide discretion under Judicial Proceedings (Interest on Debts and Damages) Act 2015 – pre-judgment interest on damages awarded at 4% per annum – post-judgment interest on judgment monies awarded at 2% per annum.


PRACTICE AND PROCEDURE – leave of Court to file defence out of time is mandatory – Order 7 Rule 6(2) National Court Rules – a defence filed late and without leave is a nullity and judgment by default may be entered - Kipane v Anton (2003) N2429 applied - principles applicable to entry of judgment by default where defence filed late and without leave - Kunton v Junia (2006) SC929 applied.


PRACTICE AND PROCEDURE – vacation time of Court excluded from reckoning of time for filing of a defence or other pleading – Order 2 Rule 3(3) of National Court Rules.


PRACTICE AND PROCEDURE – Court may remove or rearrange parties where cause of action survives death of a party – Order 5 Rule 10 of National Court Rules.


PRACTICE AND PROCEDURE – monies paid into Registrar of National Court’s Trust Account - pre-conditions for release by Registrar of specified amounts of special damages to be paid out from Registrar of National Court’s Trust Account to entitled plaintiffs and to personal representatives of deceased entitled plaintiffs.


Cases Cited:
The following cases are cited in the judgment:


Papua New Guinea Cases


Alman v Bank of South Pacific Ltd (2010) N6639
Andakelka Ltd v Petronas Ltd (2010) N3976
Beecroft No 51 Ltd v Seeto (2004) N2561
Bomson v Hart (2003) N2428
Esso Highlands Ltd v Willie (2018) N7685
Gaua v Amir (2010) N3891
Giru v Muta (2005) N2877
In re O’Dwyer (2007) N3226
Kenuai v Puri (2010) N3906
Kipane v Anton (2003) N229
Kitipa v Auali (1998) N1773
Koroguen v Wagen (2008) N3422
Kunkene v Rangsu (1999) N1917
Kunton v Junia (2006) SC 929

Laka v Nui (2013) SC1233
Laki v Alaluku (2000) N2001
Life Insurance Corporation (PNG) Ltd v Bank of South Pacific Ltd (2012) N4740
Liwa v Vanimo (2008) N3486
Magiten v Beggie (2005) N2880
Maki v Pundia [1993] PNGLR 337
Mappa v PNG Electricity Commission [1995] PNGLR 170
Mininga v The State (1996) N1458
Pawa v Yumbun (2009) N3784
Pololi v Wyborn (2013) N5253
Post PNG Ltd v Hubert (2004) N2656
Spirit Haus Ltd v Marshall (2004) N3630
Takori v Yagari (2008) SC905
Tipaiza v Yali (2005) N2971

Turik v Gubag (2013) N5132

Overseas Cases


Bater v Bater [1951] P 35
Blyth v Blyth [1966] A.C. 643 (HL)
Derry v Peek (1888) LR 14 App Cas 337
Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247
Magill v Magill [2006] HCA 51
Welham v Director of Public Prosecutions [1960] AC 103

Texts


Goff & Jones, The Law of Restitution (7th edn, 2007)
McGregor On Damages (2014) 19th Ed.

Counsel:


Leslie Kari, for Group 1 Plaintiffs
George Lau & Kevin Makeu, for Group 2 Plaintiffs
Paul Amaiu, for First & Second Defendants


DECISION

13th April, 2022


  1. SHEPHERD J: The plaintiffs are seeking special damages of K1,604,650 as well as general damages for the alleged failure of the first and second defendants to account to them for interest, costs and other monies paid out by the State arising from compensation awarded to the plaintiffs in prior National Court proceeding WS No. 1185 of 1996. The plaintiffs allege that the subject monies were wrongfully appropriated by the defendants to their own use. Prior proceeding WS No. 1185 of 1996 concerned an unlawful police raid which took place in August 1995 and which destroyed houses and properties at four villages near Tari in what was then Southern Highlands Province, now Hela Province. The plaintiffs have alleged fraud and unjust enrichment on the part of the first and second defendants.

PRELIMINARY MATTERS


  1. The trial of this proceeding WS No. 1416 of 2011 was conducted on 10 June 2020, 23 June 2020 and 6 November 2020, on which latter date the Court’s decision was reserved.
  2. There are two groups of plaintiffs in this present proceeding WS No. 1416 of 2011 who were also plaintiffs in prior related proceeding WS No. 1185 of 1996. Various of the original members of each group of plaintiffs in WS No. 1416 of 2011 are now deceased and those deceased plaintiffs are currently represented by next of kin or purported next kin. There are 9 plaintiffs in WS No. 1185 of 1996 who are not represented at all in this related proceeding WS No. 1416 of 2011.
  3. The first group of plaintiffs in WS No. 1416 of 2011 comprise 33 members[1]. They were represented at trial in June and November 2020 by Mr Leslie Kari of PNG Legal Services. The remainder of the plaintiffs in this suit, 15 in number,[2] were represented at trial by Mr Kevin Makeu of NiuAge Lawyers. In this decision, where the context requires that I distinguish between these two cohorts, I refer to the first group as the Group 1 Plaintiffs; and to the second group as the Group 2 Plaintiffs.
  4. The first and second defendants were represented at trial in WS No. 1416 of 2011 by Mr Paul Amaiu of Western Pacific Legal Services.
  5. The parties in this proceeding and in prior proceeding WS No. 1185 of 1996 all come from Local Level Government (LLG) areas which are within 100 kilometers from Tari in Hela Province. Most of the parties, if not all of them, speak the Huli and/or Pidgin languages. Few of them speak English with any degree of fluency except for several of the lead plaintiffs and the first defendant, who is now deceased. There is much phonetic transposition of consonants in the oral and written names of the places and persons central to the events which are the subject of this litigation. For instance, most of the plaintiffs come from villages in the Tagali LLG area, its cartographic name, but this LLG is often spelled in the affidavit material as the Takali LLG. The first defendant comes from territory which is within the Tebi LLG area, but this area is often referred to in the affidavit material as the Tepi LLG area. The consonants “b” and “p” and “g” and “k” are used interchangeably in the material before this Court. There are other linguistic variables which are apparent in the evidence given by the parties. I have borne these variables in mind throughout this decision.
  6. Apart from my preceding remarks, I consider that is also necessary at the outset of this decision to address a number of post-trial evidentiary issues which have emerged in this case, one of which has been the need to establish the date of death last year of the first defendant Mr Mokola Kamiali (also known as Mr Mogola Kamiali). This is because in December 2021 my Associate was informed by the lead plaintiff in WS No. 1416 of 2011, Mr Harabe Mangobe, that the first defendant Mr Kamiali had passed away.
  7. Other post-trial evidentiary issues which I found to be of concern were these:
  8. On 15 March 2022 my Associate, at my direction, sent an email to all counsel involved in this suit giving notice that I was conducting a special sitting of the Court to update and amplify certain evidentiary matters. The text of my Associate’s email of 15 March 2022 is reproduced below:

From: Numana Kilavanwa
Sent: Tuesday, 15 March 2022 9:00 AM
To: Leslie Kari <[email protected]>; George Lau <[email protected]>; Paul Amaiu <[email protected]>
Cc: Harabe Mangobe <[email protected]>; Sam Abba <[email protected]>; Mark Simon <[email protected]>; Mathew Bae <[email protected]>
Subject: WS 1416 of 2011: Harabe Mangobe & Ors v Mokola Kamiali (Deceased) & Ors - re-listing for Friday 18 March 2022 at 3.00 pm


TO: Mr Leslie Kari of PNG Legal Services, counsel for 1st Group of Plaintiffs

AND TO: Mr Kevin Makeu & Mr George Lau of NiuAge Lawyers, counsel for 2nd Group of Plaintiffs

AND TO: Mr Paul Amaiu of Western Pacific Lawyers, counsel for the late 1st Defendant and 2nd Defendant

COPY TO: Mr Harabe Mangobe, Lead Plaintiff


Dear Counsel,


I refer to my email to you dated 10 March 2022. Justice Shepherd has re-listed the above case to return before him this coming Friday 18 March 2022 at 3.00 pm. The purpose of the re-listing is for the Court to be informed and evidence to be given of the following matters so that His Honour can finalise his reserved decision for this case:

  1. Mr Kari/Mr Mekeu: On what date or dates was the assessment of damages trial in WS No. 1185 of 1996 heard by the late Justice Hinchliffe at Mt Hagen National Court? Justice Shepherd is aware that the late Justice Hinchliffe delivered his reserved decision in WS No. 1185 of 1996 on 24 February 2006, but the Trial Book filed in WS No. 1416 of 2011 on 4 October 2019 contains no reference at all to the dates when the assessment of damages trial in WS No. 1185 of 1995 was conducted by the late Justice Hinchliffe.
  2. Mr Kari: To furnish the Court with a copy of the List of Plaintiffs and Payments Received which was supposed to be Annexure "B2" to the Affidavit of Marabe Hangobe filed in WS No 1416 of 2011 on 4 November 2015 but which List is missing from the Trial Book. See Trial Book, Vol 1 p.102 - there is an annexure note but no annexure "B2".
  3. Mr Kari: to produce to the Court in evidence an updated/revised List of Plaintiffs represented by PNG Legal Services, expanded to indicate which of the Original Plaintiffs in WS No. 1416 of 2011 are now deceased, approximate dates of death in each case, relationship of Current Plaintiffs to deceased Original Plaintiffs, and whether or not those Current Plaintiffs are the personal representatives of deceased Original Plaintiffs according to custom, or consent/approval of the Public Curator or Court order (eg. Letters of Administration or Probate). See Trial Book, Vol. 1 pp. 279-281.
  4. Mr Makeu: to produce to the Court in evidence an updated/revised List of Plaintiffs represented by NiuAge Lawyers, expanded to indicate which of the Original Plaintiffs in WS No. 1416 of 2011 are now deceased, approximate dates of death in each case, relationship of Current Plaintiffs to deceased Original Plaintiffs, and whether or not those Current Plaintiffs are the personal representatives of deceased Original Plaintiffs according to custom, or consent/approval of the Public Curator or Court order (eg. Letters of Administration or Probate). See Trial Book, Vol. 2 pp. 384 to 394.

5. Mr Amaiu: to produce to the Court in evidence:

a) copies of the Certificate of Incorporation for Ilaila Development Ltd incorporated in October 1999, initial shareholder(s) forms and initial director(s) forms for this company as registered with the Office of the Registrar of Companies. See reference to Ilaila Development Ltd at p. 11 para. 14 in decision of Justice Murray in WS No. 1396 of 2011; Trial Book, Vol. 3 p. 642. These documents are available to be downloaded from the IPA's website for on-line searchable documents at the Office of the Registrar of Companies at https://www.ipg.gov.pg.

b) evidence of death of the 1st Defendant, the late Mr Mogola Kamiali, believed to have died in or about November 2021, the name of his personal representative according to custom or appointment, the relationship of that personal representative to the late Mr Kamiali, whether or not that personal representative has the consent/approval of the Public Curator to act for the Estate of the late Mr Kamiali, whether Letters of Administration or Probate in respect of the Estate of the late Mr Kamiali have been granted or applied for by any person.

Kindly ensure your attendance before His Honour this coming Friday 18 March 2022 at 3.00 pm to address the above matters.


Please acknowledge receipt of this notification by return email to me as soon as you have received this message.


Thank you.


Numana Kilavanwa Jnr

Associate to Justice J.L. Shepherd

National Court and Supreme Court | Waigani

NJSS |P.O. Box 7018, Boroko, N.C.D

T: 324 5786 | E: [email protected]


  1. The special sitting of the Court which I had called was duly convened in the afternoon of Friday 18 March 2022. Mr Caspar Apundamiet from PNG Legal Services appeared on behalf of Mr Leslie Kari for the Group 1 Plaintiffs. Mr George Lau of NiuAge Lawyers appeared for the Group 2 Plaintiffs. Mr Paul Amaiu of Western Pacific Legal Services appeared for the first and second defendants.
  2. Mr Amaiu informed the Court at the special sitting that the first defendant the late Mr Kamiali had died at Port Moresby on 9 November 2021 and that his customary personal representative in this present proceeding WS No. 1416 of 2011 is his eldest son, Emmanuel Kamiali born on 3 March 1996. These facts were admitted into evidence with the consent of Mr Apundamiet for the Group 1 Plaintiffs and of Mr Lau for the Group 2 Plaintiffs.
  3. Mr Emmanuel Kamiali attended at the special sitting of the Court on 18 March 2022 in person. He stood and identified himself when requested by me to do so.
  4. On 11 April 2022 Mr Emmanuel Kamiali signed a formal consent to represent the Estate of his deceased father, the late Mokola Kamiali (also known as Mogola Kamiali). The formal consent document was filed in this proceeding on 12 April 2022 (Court document no. 198).
  5. I will therefore be ordering at the conclusion of this decision that the name of the first defendant cited in this proceeding is to be substituted and changed to “The Estate of the late Mokola Kamiali by his personal representative Emmanuel Kamiali”. However, for the purposes of this decision I will generally be referring to the first defendant throughout as “Mr Kamiali” notwithstanding his recent demise.
  6. At the special sitting on 18 March 2022, Mr Amaiu was unable to produce to the Court copies of any of the incorporation documents which had been requested in my Associate’s email dated 18 March 2022 for the company named “Ilaila Development Limited”, or indeed for any of the similarly named companies variously referred to by Mr Kamiali in his affidavit material as “Ilila Development Corporation”, “Ilila Development Corporation Limited” and “Ilaila Development Corporation Limited”. I then circulated to all three counsel who were in attendance at the special sitting of the Court on 18 March 2022 copies of the incorporation documents for “Ilaila Development Limited” which I had downloaded from the publicly searchable website of the Investment Promotion Authority. I directed Mr Amaiu to notify my Associate by 4.00 pm on Monday 21 March 2022 whether his client Estate objected to the admission into evidence of these downloaded copies of the incorporation documents for “Ilaila Development Limited”, with any objection to be dealt with by me at a further sitting of the Court to be held on Friday 25 March 2022 but failing notification of any such objection by the appointed deadline then the copies of the incorporation documents I had circulated for “Ilaila Development Limited” to all counsel were to be admitted into evidence.
  7. Mr Amaiu did not furnish any objection to my Associate by the end of Monday 21 March 2022 to the admission into evidence of the copies of the incorporation documentation for “Ilaila Development Limited”. That documentation has accordingly been admitted by me into evidence as Exhibit “D-SS-1”. I refer to the significance of this incorporation documentation later in this decision.
  8. At the special sitting on 18 March 2022, Mr Apundamiet for the Group 1 Plaintiffs produced an updated typed List of Plaintiffs presently represented by PNG Legal Services. That List was admitted into evidence as Exhibit “PG-1”.
  9. In similar vein, Mr Lau produced an affidavit sworn by him on 17 March 2022 which at para. 6 contained an updated List of the Group 2 Plaintiffs currently represented by NiuAge Lawyers. Mr Lau’s affidavit was admitted into evidence as Exhibit “PG-2”.
  10. None of the counsel who attended the special sitting of the Court on 18 March 2022 were able to identify from their own files and records the actual date or dates on which Justice Hinchliffe conducted the trial of the assessment of damages for the 58 plaintiffs in prior proceeding WS No. 1185 of 1996. However, it is not in contest that judgment by default in that suit was entered on 24 April 1998 against the State and the police defendants cited therein, with damages to be assessed. I surmise from the affidavit material that was in evidence before me at trial in WS No. 1416 of 2011 that Justice Hinchliffe probably conducted the trial on assessment of damages in WS No. 1185 of 1996 at some point of time in either 2004 or 2005, and then delivered his reserved decision and judgment on 24 February 2006.
  11. As to the missing List of Plaintiffs and Payments Received which was supposed to follow annexure note “B2” in Vol. 1 of the Trial Book, Mr Lau for the Group 2 Plaintiffs informed the Court at the special sitting on 18 March 2022 that a further copy of that List is to be found at Vol. 1 of the Trial Book at pp. 165 to 169.

BACKGROUND


  1. This case has a long and convoluted history which goes back more than 25 years. Doing the best I can from the parties’ revised statement of agreed and disputed facts and issues filed on 9 May 2019 (Revised Statement) and by reference to the prodigious amount of conflicting affidavit material and the many sets of submissions filed for the parties at odds with each other in this proceeding, I now set out what I consider to be the essential background facts to this dispute.
  2. The police raids in question were conducted on 10 and 11 August 1995 and were in response to the criminal destruction by vandals of a pylon which was part of the electricity reticulation service which led to the Porgera gold mine. Helicopters from Tari and Mendi brought in policemen who were landed at Paijaka, Hariba, Ekanda and Tongoma villages in the Tagali (Takali) LLG area of what is now Hela Province. Reserve police stationed at the Porgera gold mine were also flown in. The police raids caused extensive damage to village houses and their contents. The resident clans who were primarily affected by the police raids were the Haya, Hambua, Heli and Tombe clans.
  3. Certain of the villagers whose houses and properties were destroyed or damaged in the police raids appointed paramount chief Malingi Tagili[3] (Chief Tagili) to represent them as plaintiffs in National Court proceeding WS No. 1185 of 1996, claiming damages in excess of K4million against the Commander of Tari Police Station, the Provincial Police Commander for Southern Highlands Province, the PNG Commissioner for Police and the State. There were 58 plaintiffs in that litigation, which were led by head plaintiff Chief Tagili.
  4. Most of the plaintiffs in WS No. 1185 of 1996 were illiterate villagers, including Chief Tagili. The exceptions to this were Mr Harabe Mangobe, Pastor Tokoya Hapokaya and several others who had been educated to Grade 10 level.
  5. The first defendant Mr Kamiali was a schoolteacher at the time of the police raids in early August 1995. He was stationed at Lumulumu High School, which is located about 10 kilometers from Paijaka Village in the Tagali LLG area.
  6. Mr Kamiali was not a member of any of the four clans whose properties were damaged or destroyed in the police raids. Mr Kamiali said in various of his affidavits that he came from the Libura/Rugurea Clan[4] of Hoeabia Village (also known as Hoiebia Village) in the Tebi LLG area, Tari-Pori District in what is now Hela Province. Hoeabia Village is more than 50 kilometers away from where the police raids were conducted at Paijaka, Hariba, Ekanda and Tongoma Villages.[5]
  7. In or about mid-August 1995 Chief Tagili and Pastor Hapokaya engaged Mr Kamiali to be the consultant to pursue compensation claims against the Police and the State for those villagers whose properties had been destroyed or damaged in the police raids. This was because Mr Kamiali was a well-educated schoolteacher who was considered at the time by Chief Tagili and Pastor Hapokaya to be the most competent person then available in the Tagali LLG area to instruct lawyers to act on behalf of the villagers aggrieved by the police raids.
  8. At the time of Mr Kamiali’s acceptance of his role as consultant to pursue the villagers’ compensation claims, Mr Kamiali held himself out as being the owner of a company named Ilila Development Corporation which, it has transpired, was never incorporated under that name at all. Mr Kamiali did cause a company named “Ilaila Development Limited”, which had a corporate existence separate from himself, to be incorporated on 19 October 1999 as evidenced by Exhibit D-SS-1. Mr Kamiali was the sole shareholder and sole director of that company. But Mr Kamiali never caused any company to be incorporated under the name “Ilila Development Corporation Limited” or “Ilaila Development Corporation Limited”.
  9. In late August 1995 Mr Kamiali prepared a short document styled “Contract Agreement” which had only two operative sentences. This brief document appointed Mr Kamiali’s unincorporated business known at the time as Ilila Development Corporation to be the consultant for the purpose of pursuing the claims of the villagers whose properties had been destroyed or damaged in the police raids which had occurred earlier that month. The consultancy agreement, such as it is, was dated 30 August 1995. It bears the thumb print of Chief Tagili and the signature of Pastor Hapokaya. It was countersigned by Mr Kamiali on behalf of Ilila Development Corporation.
  10. Mr Kamiali initially instructed Patterson Lawyers of Port Moresby to represent Chief Tagili and other villagers who were aggrieved by the police raids conducted on 10 and 11 August 1995. Patterson Lawyers initiated litigation against the Police and the State. A writ of summons and statement of claim was filed by Patterson Lawyers in WS No. 1185 of 1996 on 4 December 1996 and served on police authorities on 27 January 1997. The Solicitor-General’s Office filed a notice of intention to defend on behalf of all police defendants and the State on 1 May 1997. However, a defence in WS No. 1185 of 1996 was never filed by the State and judgment by default with damages to be assessed was entered against the State and all police defendants on 24 April 1998.
  11. The evidence of the parties in the present case before me is silent as to the date or dates when the trial for assessment of damages in WS No. 1185 of 1996 was conducted by Justice Hinchliffe. As noted in the prefatory remarks to this decision, I presume that the trial for assessment of damages in WS No. 1185 of 1996 took place before his Honour at Mt Hagen on a date or series of dates in 2004 or 2005. I say this because Vol. 1 of the Trial Book at pp. 400 to 403 contains a copy of a list of the 58 claimant plaintiffs in WS No. 1185 of 1996 which was prepared by Kuwimb Lawyers. That list is dated 5 April 2004 and it gives the names of each of the 58 plaintiffs, including the name of Mr Kamiali, as well as the amounts claimed by each of the 58 plaintiffs and the dates of swearing and filing of their respective affidavits in support of their respective compensation claims in WS No. 1185 of 1996. The dates of those affidavits cover a date range from 13 April 2002 to 8 April 2004. This list is replicated on pp. 6 and 7 of the decision of Justice Hinchliffe.[6] Logically, it follows that Justice Hinchliffe’s trial for the assessment of damages must therefore have taken place on some date or dates after 8 April 2004 but before the end of 2005, several months before his Honour delivered his reserved decision on 24 February 2006. His Honour’s decision does not state the date or dates on which the trial was conducted by him at Mt Hagen.
  12. What is clear from the evidence is that by the time the assessment for damages came on for trial by Justice Hinchliffe, Mr Kamiali had already terminated the legal services of Patterson Lawyers. The plaintiffs in WS No. 1185 of 1996 were represented at trial by Mr John Kuwimb of the Mt Hagen law practice of Kuwimb Lawyers.
  13. When Justice Hinchliffe delivered his reserved decision on assessment of damages in WS No. 1185 of 1996 on 24 February 2006, his Honour awarded the 58 plaintiffs separate amounts of compensation which in total came to K3,854,995.15, together with interest thereon of K1,156,498.55 which was awarded at the rate of 3% per annum from 28 December 1996, the day after date of service of the writ on 27 December 1996, to date of judgment on 24 February 2006. His Honour also ordered that the 58 plaintiffs’ costs of that proceeding were to be paid by the State, the costs to be taxed if not agreed.
  14. I note that the minute of the judgment pronounced by Justice Hinchliffe on 24 February 2006 was filed by Paulus M. Dowa Lawyers of Mt Hagen.[7] This obviously means that at some point between the trial of the assessment of damages in 2004 or 2005 and when Justice Hinchliffe delivered his reserved decision on 24 February 2006, Mr Kamiali had changed lawyers acting for the 58 plaintiffs in WS No. 1185 of 1996 from Kuwimb Lawyers to Paulus M. Dowa Lawyers.
  15. Justice Hinchliffe’s reserved decision in WS No. 1185 of 1996 refers to the affidavits which had been filed by all 58 plaintiffs who averred that they were victims of the police raids. Most of the plaintiffs had claimed for hoarded cash and loss of gold said to have been collected during the earlier gold rush period at Mt Kare but which allegedly parted company from them in the police raids. As gold is the one metal that is virtually indestructible, I observe that it is highly unlikely that any gold was actually “destroyed” in the police raids.
  16. His Honour’s reserved decision refers to two sets of valuations which gave different estimated values for each of the special damages claims of the 58 plaintiffs in WS No. 1185 of 1996. The first set of valuations is contained in a table compiled by a valuer with the Office of the Valuer-General which gave estimated values for the destroyed or damaged properties of the plaintiffs, with upward adjustments made by counsel for the plaintiffs for the increase in the value of gold between the police raids in 1995 and the intervening period of 9 or 10 years before the trial for assessment of damages in WS No. 1185 of 1996 took place in 2004 or 2005. This first set of valuations produced in evidence before Justice Hinchliffe had an aggregate total of K4,818,743.93. The second set of valuations in evidence was prepared by a private valuer from Moody Real Estate Ltd of Mt Hagen. The second set of valuations was more conservative and had an aggregate total of K2,374,536.00. In the result, Justice Hinchliffe struck a balance between these two sets of valuations and awarded the 58 plaintiffs a total of K3,854.995.15 by way of compensation for the loss of their properties, this amount having been based on a 20% deduction from the values given for each of the claims in the Valuer-General’s set of valuations, as revised, to allow for the increase in the value of gold since 1995.
  17. In the case of Chief Tagili, his revised claim for special damages at item 54 in the table at page 16 of his Honour’s judgment was for K44,365.[8] This was reduced by Justice Hinchliffe by a factor of 20%, which gave Chief Tagili an award of special damages of K35,492 in WS 1185 of 1996, being K44,365 less K8,873 (20%) = K35,492.
  18. Pastor Hapokaya was awarded K178,000, being his revised claim for special damages of K222,500 at item 51 in the abovementioned table less K44,500 (20%) = K178,000.[9]
  19. There is one unusually high award of special damages made in WS No. 1185 of 1996 which conspicuously stands out above all others. This is the award of special damages for K1,601,320 which was assessed for Mr Kamiali, the plaintiffs’ own consultant. Mr Kamiali, the first defendant in this present proceeding WS No. 1416 of 2011, had inserted himself as one of the plaintiffs in WS No. 1185 of 1996. In an affidavit sworn by Mr Kamiali on 15 March 2002 and filed in that proceeding by Kuwimb Lawyers on 23 May 2002,[10] Mr Kamiali deposed that he had sustained losses amounting to K2,001,650 as a result of the subject police raids in 1995 which had allegedly destroyed a trade store business he had been operating and an expensive vehicle. As the State inexplicably did not contest Mr Kamiali’s sworn evidence as to the value of his losses, Mr Kamiali was awarded special damages of K1,601,320 in WS No. 1185 of 1996, being his claim for K2,001,650 at item 31 in the abovementioned table[11] less K400,330 (20%) = K1,601,320.
  20. The next highest amount of special damages in WS No. 1185 of 1996 was that which was awarded to Mr Henry Agu (also known as Mr Henry Aku), the co-plaintiff in this present proceeding WS No. 1416 of 2011, who received an award of K287,860, being his revised claim for special damages of K359,825 at item 21 of the abovementioned table[12] less K71,965 (20%) = K287,860.
  21. This means that Mr Kamiali’s award of special damages of K1,601,320 in WS No. 1185 of 1996 was more than K1.3million above Mr Agu’s claim, the latter having the next highest quantum of special damages awarded by Justice Hinchliffe to the remaining 57 plaintiffs in WS No. 1185 of 1996.
  22. It is asserted by the lead plaintiffs in this present proceeding WS No. 1416 of 2011, Mr Mangobe and Mr Agu, that they and the other plaintiffs they represent had no knowledge at the time of the trial of assessment of damages which was conducted by Justice Hinchliffe in WS No. 1185 of 1996 that Mr Kamiali had inserted himself as one of the claimants. They deny that Mr Kamiali had any trade store business which was operating at any of the 4 villages which were the target of the police raids in August 1995 or indeed elsewhere. They assert that Mr Kamiali was simply a schoolteacher at Lumulumu High School at the time and that he had no property of any value which was destroyed or damaged as a result of the police raids.
  23. A certificate of judgment was issued in WS No. 1185 of 1996 by the Assistant Registrar of the National Court at Mount Hagen on 11 April 2006[13] which certified that on 24 February 2006 the plaintiffs had been awarded damages of K3,854,995.15, with pre-judgment interest thereon of K1,156,498.5, and with costs to be taxed if not agreed. The total of the judgment sum in WS No. 1195 of 1996, inclusive of pre-judgment interest but exclusive of the award of costs payable by the State, came to K5,011,493.70.
  24. The judgment that was delivered by Justice Hinchliffe in WS No. 1185 of 1996 on 24 February 2006 did not apportion the global sum of damages of K3,854,995.15 to specific amounts payable to each of the 58 plaintiffs. That exercise was left to the parties to calculate for themselves, with each plaintiff’s claim being based on the Valuer-General’s table for the 58 claims, as adjusted by counsel for the plaintiffs Mr Kuwimb to allow for the increase in the value of gold for certain of the plaintiffs, and with each individual claim then discounted by 20% per annum.
  25. A schedule of the amounts awarded to each of the 58 plaintiffs in WS No. 1185 of 1996 is set out at para. 31 of the affidavit of Mr Mangobe sworn and filed in WS No. 1416 of 2011 on 13 December 2017.[14] I have cross-checked the information contained in that schedule with the Valuer-General’s table for the 58 plaintiffs set out in Justice Hinchliffe’s decision and the adjustments adopted by his Honour as reflected in his decision. I have found the schedule in Mr Mangobe’s affidavit to be generally correct except that the amount of damages to which plaintiff no. 36, Putaya Pepe, was entitled in Mr Mangobe’s schedule required correction from K6,761.60 to K67,061.00 (an obvious typographical error); and the amount of damages to which plaintiff no. 57, Thomas Tigi Para, was said to have originally claimed in WS No. 1185 of 1996 needed correction in Mr Mangobe’s schedule from K39,069.00 to K195,345. Other than those two amendments, the schedule of quantum of awards to each of the 58 plaintiffs, including Mr Kamiali’s award of K1,601,330, set out at para. 31 of Mr Mangobe’s affidavit appears to be correct.
  26. In or about early July 2009 Mr Kamiali changed lawyers for the 58 plaintiffs in WS No. 1185 of 1996 yet again and this time he instructed Michael Wagambie of M.S.Wagambie Lawyers to act for Chief Tagili and the other plaintiffs in WS No. 1185 of 1995 in lieu of Paulus M. Dowa Lawyers.
  27. On 28 September 2009 Mr Wagambie filed a notice of change of lawyers for the plaintiffs in WS No. 1185 of 1995, stating in that notice that M.S.Wagambie Lawyers had instructions to act “on behalf of the Plaintiff [sic] in place of Paulus M. Dowa Lawyers”.[15]
  28. On 26 October 2011 Western Pacific Legal Services, on instructions from Mr Kamiali, issued writ of summons WS No. 1396 of 2011: Ilila Development Corporation Ltd v. Malingi Tagili & Ors for and on behalf of Heli, Hambua, Haya, Gawi and Tombe Clans.[16] The statement of claim in WS No. 1396 of 2011 pleaded to the effect that Chief Tagili and all other plaintiffs in WS No. 1185 of 1996 had, with the assistance of Ilila Development Corporation Ltd, been paid out their respective claims from the judgment monies of K3,854,995.15 after that case had been completed. The company pleaded in its statement of claim that its consultancy fees and costs for assisting Chief Tagili and the villagers he represented over a 12-year period from August 1995 to April 2007 amounted to more than K24million, an astonishing K24,539,900. Of that amount, Ilila Development Corporation Ltd sought an order that Chief Tagili and others pay to the company the sum of K700,000 which was “parked in the Trust Account of Wagambie Lawyers”.
  29. The whole of the proceeding in WS No. 136 of 2011 was dismissed on the application of Chief Tagili by Justice Murray at Mt Hagen on 31 July 2014. Her Honour gave her reasons for the dismissal at para. 14 of her judgment as follows:

“The evidence before this court is that, at the time the plaintiff claimed to have signed the agreement which it relies upon, no such company as named herein as the plaintiff existed. The company that is registered is called, Ilaila Development Ltd. It was incorporated in October of 1999. If the plaintiff, named herein as Ilila Development Corporation Ltd is meant to be Ilaila Development Ltd, the proceeding herein has been instituted by a party that does not exist. In the circumstances, it is a sham and must not be allowed to continue.”[17]


  1. The formal terms of her Honour’s order in WS No. 136 of 2011 dated 31 July 2014 were these:

“The application for dismissal of proceedings pursuant to Order 8 , rule 27 and Order 12, rule 40 of the NCR is granted with costs of and incidental to the application to be paid by the plaintiff.”[18]


  1. The company purporting to be Ilila Development Corporation Ltd apparently lodged a notice of appeal in the Supreme Court against the decision of Justice Murray to dismiss WS No. 1396 of 2011, but that appeal was never pursued. Her Honour’s order for the dismissal of that proceeding has accordingly remained in full force down to the present time.
  2. On 28 October 2011 the present proceeding WS No. 1416 of 2011 was filed by PNG Legal Services as a class action initially for 52 of the plaintiffs in WS No. 1185 of 1996, who pleaded in their statement of claim that Mr Kamiali had falsely held himself out in the latter prior proceeding as having lost a trade store business and vehicles worth K2million as a result of the police raids on 10 and 11 August 1995. The plaintiffs also pleaded in their statement of claim in WS No. 1416 of 2011 to the effect that Mr Kamiali had, in addition to his fraudulent claim in WS No. 1185 of 1996, also defrauded the plaintiffs by unjustly enriching himself from alleged consulting fees to the extent of K2,213,330 from monies held for the plaintiffs in the trust accounts of various lawyers, including the trust account of M.S.Wagambie Lawyers, and that there had been a failure by Mr Kamiali to inform the plaintiffs of his alleged consulting fees.
  3. On 18 April 2012 Western Pacific Legal Services filed the first and second defendants’ notice of intention to defend the plaintiffs’ claims in WS No. 1416 of 2011. On that date Western Pacific Legal Services also filed out of time and without leave of the Court a late defence for the defendants, which in essence was a general denial.
  4. Thereafter there was a multiplicity of contested interlocutory motions. However, it is relevant to this chronology to mention at this juncture that Mr Wagambie was subsequently joined as third defendant to this present proceeding WS No. 1416 of 2011 as a direct consequence of the order of this Court which was made by Justice Kandakasi (as he then was) on 6 October 2015, and which order granted leave to the plaintiffs to file an amended statement of claim which named Mr Wagambie and his law firm as third defendant so that interim orders freezing certain monies in the trust account of M.S.Wagambie Lawyers could be made.
  5. The amended statement of claim of the plaintiffs in WS No. 1416 of 2011 was duly filed on 16 October 2015 by PNG Legal Services and served on the defendants’ lawyer Mr Amaiu of Western Pacific Legal Services on 19 October 2015. No amended defence to the plaintiff’s amended statement of claim has ever been filed by the defendants.
  6. Between October 2015 to August 2018 numerous further interlocutory motions were heard and interim orders made in this present proceeding WS No. 1416 of 2011. However, I consider those time-wasting matters to be no longer relevant to the prolix background for this reserved decision.
  7. The next event of significance which occurred is that an order was made by Justice Kandakasi on 6 September 2018 which transferred this proceeding to me to issue directions to progress the case to trial.
  8. On 19 December 2018 I ordered that 15 clients of NiuAge Lawyers who had consulted NiuAge Lawyers back in March 2016 requesting that law firm to represent them be expressly joined as plaintiffs in WS No. 1416 of 2011 as their presence in this current suit had been objected to by many of the plaintiffs represented by Mr Kari of PNG Legal Services. The terms of my order of 19 December 2018 provided that notwithstanding the joinder, any person who is a plaintiff in this proceeding could be removed as a party if the Court, on application by another party, could be satisfied that on balance the party objected to has insufficient right and/or interest to remain as a plaintiff in this proceeding. No such further application was made prior to or at trial. This explains my opening remarks in this decision that there are 33 plaintiffs in WS No. 1416 of 2011 represented by PNG Legal Services, which I have termed the Group 1 Plaintiffs; and 15 plaintiffs represented by NiuAge Lawyers, which I have termed the Group 2 Plaintiffs.
  9. On 19 December 2018 I also issued an order which directed Mr Wagambie to forthwith pay the balance of all monies then standing in his law firm’s trust account for the benefit of the plaintiffs in WS No. 1185 of 1996, a sum of K696,568, into the National Court Registrar’s trust account. The order directed that these monies were to be held in the National Court Registrar’s trust account pending the final determination of this proceeding and any related proceedings.
  10. Mr Wagambie complied with the order of 19 December 2018 by payment the same day from his law firm’s trust account of the sum of K696,568 into the National Court Registrar’s trust account no. 1000583618 with the Waigani branch of the Bank of South Pacific Ltd. The sum of K696,568 continues to be held in the National Court Registrar’s trust account.
  11. Mr Wagambie was removed as third defendant in this proceeding WS No. 1416 of 2011 by order of this Court on 25 February 2019 as I was satisfied that Mr Wagambie had fully complied with his obligations under the prior order made on 19 December 2018 and because no substantive cause of action had been pleaded against him in the plaintiff’s amended statement of claim filed on 16 October 2015.
  12. On 8 April 2019 I issued directions for Mr Makeu, counsel for the Group 2 Plaintiffs represented by Niuage Lawyers, to file and serve by 10 May 2019 the parties’ Revised Statement which was to be duly settled and certified correct by himself in his capacity as counsel for the Group 2 Plaintiffs, by Mr Kari as counsel for the Group 1 Plaintiffs represented by PNG Legal Services, and by Mr Amaiu, counsel for the first and second defendants represented by Western Pacific Legal Services.
  13. The parties’ Revised Statement was duly filed by Niuage Lawyers on 9 May 2019 (Court document no. 157) with the consent of all parties. Page 6 of the Revised Statement has a consent endorsement clause which bears the signatures of counsel Mr Makeu, Mr Kari and Mr Amaiu for their respective clients.
  14. On 15 May 2019 I gave detailed directions and a timetable for the parties to file a Trial Book in view of all the strenuously contested issues and the many affidavits filed by the parties in this proceeding. After further directional orders, the parties filed their Trial Book consisting of 3 volumes and 647 pages on 4 October 2019.
  15. Further directional orders were then necessary but on 21 May 2020 the state of the proceedings was such that I was finally able to order that this proceeding be set down for trial on 10 June 2020, the trial to be on affidavit evidence subject to the parties’ rights of cross-examination.
  16. The trial commenced before me at Waigani on 10 June 2020 with cross-examination of witnesses, then adjourned part-heard to 23 June 2020 for cross-examination of the remaining witnesses, then further adjourned to 6 November 2020 for the parties to make their submissions. On completion of submissions on 6 November 2020, I reserved the Court’s decision.

LEGAL ISSUES


  1. The legal issues which the parties by their counsel agreed in their Revised Statement should be determined by the Court in this proceeding are set out below, without editorial correction:

“1. Whether or not the Defendants have a Defence.

2. If so what is the Defence and the basis for that.

  1. Whether or not the Defendants have any contractual obligations to the named Plaintiffs in the current proceedings other than Malingi Tagili.
  2. Whether or not the Plaintiffs’ action are an abuse of the court process.
  3. Whether or not the current Plaintiffs have standing to bring an action in WS No. 1185 of 1996 against the Defendant.”
  4. Having perused the Revised Statement in the context of the pleadings and the voluminous affidavit material, I consider that the core legal issues for determination by the Court in this proceeding can more properly be addressed as follows:

1. Does this proceeding WS No. 1416 of 2011 constitute an abuse of process?

2. If not, is the defence which was filed out of time by the defendants on 18 April 2012 a valid defence?

3. If the defence is invalid, are the plaintiffs entitled to judgment by default?

  1. If yes, what is the quantum of damages to which the plaintiffs are entitled?
  2. Insofar as various factual and legal issues which were summarised in the Revised Statement signed by all three counsel have any bearing on the legal issues I have identified, certain of the parties’ issues outlined in their Revised Statement which I consider are relevant have been addressed by me below.

CONSIDERATION


Issue 1: Does this proceeding WS No. 1416 of 2011 constitute an abuse of process?


  1. The plaintiffs’ initial statement of claim is contained in their writ of summons which was filed by PNG Legal Services on 28 October 2011 for 52 plaintiffs, including Mr Mangobe and Mr Agu as lead plaintiffs.[19] The plaintiffs’ initial statement of claim contained 19 paragraphs, excluding the plaintiffs’ prayer for relief. The statement of claim alleged facts which lay the basis for two distinct causes of action, namely fraud on the part of the defendants and the equitable cause of action known as unjust enrichment. These two causes of action were alleged to have arisen from the first defendant’s inclusion of a fraudulent compensation claim in WS No. 1185 of 1996, overcharging of consultancy fees and failure to have accounted to the plaintiffs for monies had and received by the defendants which were held in the trust accounts of various lawyers on behalf of the plaintiffs and accessed by the defendants. Particulars of loss and damage sustained by the plaintiffs arising from the alleged misfeasance of the defendants were pleaded.
  2. There is no dispute that when the defendants filed their defence to the plaintiff’s initial statement of claim on 18 April 2012, the defence was filed out of time. The late-filed defence was a general defence.[20] It pleaded the general issue. The defence contained 14 paragraphs. The defence simply pleaded that facts set out in paragraphs in the statement of claim were either denied in whole or in part or that those facts were neither admitted nor denied. No facts were pleaded in the defence in answer to the allegations set forth in the plaintiffs’ initial statement of claim.
  3. The plaintiffs’ statement of claim was subsequently amended pursuant to leave granted to the plaintiffs by Justice Kandakasi on 6 October 2015. The amended statement of claim was duly filed by PNG Legal Services on 16 October 2015 (Court document no. 42).[21] The amended statement of claim was expanded to 21 paragraphs, excluding the prayer for relief.
  4. The amended statement of claim cited M.S.Wagambie Lawyers as third defendant in this proceeding WS No. 1416 of 2011, thereby enabling the plaintiffs to apply for interim restraining orders in connection with monies paid into the trust account of that law firm derived from payments made by the Department of Finance on behalf of the State in satisfaction of the judgment monies, mainly accrued interest and costs, which were awarded by Justice Hinchliffe to the plaintiffs in WS No. 1185 of 1996.
  5. The substantive relief sought by the plaintiffs and pleaded in the amended statement of claim in WS No. 1416 of 2011 can be paraphrased as set out below. The plaintiffs claimed:

(a) Special damages in the sum of K1,604,650.

(b) General damages against Ilila Development Corporation Ltd for the losses and damage suffered by the plaintiffs.

(c) Interest on damages at 22% per annum pursuant to the Judicial Proceedings ( Interest on Debts and Damages) Act from when monies were received by Mr Kamiali and Ilila Development Corporation Ltd.

(d) Costs

  1. The amended statement of claim also sought interim orders to the effect that various bank accounts of the defendants be frozen pending final determination of the substantive claims of the plaintiffs, that M.S.Wagambie Lawyers release records of all monies received and disbursed on behalf of the plaintiffs and that M.S.Wagambie Lawyers pay the balance of monies held in their trust account for the plaintiffs into the Registrar of the National Court’s trust account.
  2. After reciting the basic facts in connection with the police raids and correcting an erroneous reference to WS No. 1282 of 1996 in the initial statement of claim, the amended statement of claim in WS No. 1416 of 2011 then included several paragraphs specific to M.S.Wagambie Lawyers. The remainder of the plaintiffs’ amended statement of claim is set out below, with certain editorial omissions for brevity:

“7. On or about November/December 1996 the First Defendant was verbally appointed as a consultant in order to liaise with the lawyers in Mt Hagen and Port Moresby and file a claim on behalf of the Plaintiffs most of whom were illiterate ...


  1. The First Defendant also drafted a consultancy agreement and had the then and current Plaintiffs sign that without showing or explaining what the contents were...
  2. The First Defendant then instructed Pat[t]erson Lawyers on behalf of the Plaintiffs which firm on the 4th of December 1996 filed a claim [in WS No. 1185 of 1996] against the State of Papua New Guinea on behalf of the Plaintiffs which included himself .
  3. The First Defendant then withdrew [from Patterson Lawyers] and engaged Kuwimb Lawyers who conducted the trial and did [the] bulk of the work up to judgment and after that engaged Paulus Dowa Lawyers and then Koneyala Lawyers and finally Wagambie Lawyers to continue to pursue the claim.
  4. Unbeknown to the Plaintiffs in this and the original proceedings the First Defendant had included his own name as a Plaintiff claiming some K2 million for trucks and trade store business destroyed in the raid and loss of business and was the highest of the claims.
  5. Such an inclusion of his name was falsely and fraudulently done and the particulars of such are that the First Defendant[:]

12.1 Falsely held himself out as a member of the tribes that the raid was conducted when his tribal territory and village was some 50 km away from the villages where the raid was conducted and not affected by such raid.


12.2 His village nor his properties, if any, were affected by such a raid as he is from the Lipura Clan from Hangapo Village.


12.3 Falsely held himself out as having come from the villages that were raided and as having lost property valued at K503,000.00.


12.4 Falsely claiming to have been a businessman whose property was worth that much monies when in fact he was not and [was instead] a high school teacher.


12.5 Filing [a] false affidavit and misleading the Court.


12.6 Giving false evidence in Court when assessing damages.


12.7 Falsely held himself out to be a person whose properties were destroyed claiming K2million ...


12.8 Falsely holding himself out as being from the clan and the villages of the Plaintiffs ...


13. The First Defendant had also further schemed up to unjustly enrich himself ... charging excessive consultancy fees.


14. That the First Defendant has been instrumental in holding himself out as an original customary landowners and has ... paid himself monies he claimed as a Plaintiff and has also paid himself as a consultant some K1,604,650 without giving details of charges and invoices to the Plaintiffs and when he was also a Plaintiff and was pursuing his own interest as well.


Item #
Amount received
Date/Year
Firm from whom received
1
K1,337,330.00
2007
Paulus Dowa Lawyers
2
K100,000.00
2008
Paulus Dowa Lawyers
3
K83,000.00
2009
Paulus Dowa Lawyers
4
K611,255
2011
Wagambie Lawyers
5
K82,000.00
July 2011
Wagambie Lawyers
Total
K2,213,330.00


The above payments will be confirmed through discovery and other interrogatories




15. That the First Defendant then incorporated the Second Defendant company through which all such monies were channeled to conduct businesses and have been conducting business through that company and the company has also unjustly enriched itself.

16. The First and Second Defendants have failed to advise the Plaintiffs details of their charges and when asked for has stated that his bills total some K22million and crave leave to refer to the contents of such statements as though fully set out and pleaded herein.

17. The First Defendant has through such consultancy services moved the file from various law firm[s] and the Plaintiffs have lost monies from such through fees charged by those firms the particulars were from Pat[t]erson Lawyers to Kuwimb Lawyers to Dowa Lawyers to Koneyala Lawyers to now Wagambie Lawyers.


18. That the Plaintiffs have not been provided details of all payments made to these firms and the firms have not contacted the Plaintiffs and have received monies on behalf of the Plaintiffs the sums to which are not known and have not been made known especially to Wagambie Lawyers who has refused to release all monies currently held on behalf of the Plaintiffs as the firm has acted personally for the First Defendant in a claim against one of the Plaintiffs in the original proceedings and thus has a conflict of interest.


19. The First Defendant has been instrumental in stopping the monies currently held in Wagambie [Lawyers] Trust Account to be released to the Plaintiffs despite the Plaintiffs having instructed Wagambie Lawyers to release those monies.


20. That by such fraudulent and dishonest activities of the First and Second Defendants the Plaintiffs have suffered loss and damages.


  1. PARTICULARS OF LOSS AND DAMAGES

(a) The loss of monies through excessive fees for consultancy claims when he was also pursuing his own claim as well being K1,604,650.

(b) Tickets and airfares and bus fares, phone calls and accommodation from the day the cheques were fraudulently negotiated to present at the same rates as the normal daily allowance paid by the State for duty travel.

(c) Legal costs for hiring lawyers.

(d) Tickets to Tari and back and other cash expenses when consents had to be obtained.”

  1. The defendants by their counsel Mr Amaiu have submitted that the plaintiffs’ pleadings lack substance and that no cause of action has been pleaded which can be sustained against the defendants. It is said that the plaintiffs have failed to plead specific facts of alleged fraud or the commission of any tort or breach of contract on the part of the defendants or other cause of action which could give rise to a claim for damages and that this has prevented the defendants from pleading a proper defence to the plaintiffs’ claims. The defendants assert that this is why they only filed a general defence to the plaintiff’s initial statement of claim. The defendants argue that the whole of the proceeding in WS No. 1416 of 2011 is an abuse of process and that it should be dismissed with costs.
  2. I observe that the defendants at the trial conducted on 10 and 23 June 2020 and on 6 November 2020 gave no explanation at all as to why, when given every opportunity to do so, the defendants failed to file an amended defence to the plaintiffs’ amended statement of claim or to seek leave to do so.
  3. Given the nature of the pleadings, is WS No. 1416 of 2011 an abuse of process as submitted by the defendants, such that it should be dismissed at this late stage?
  4. Order 4 r 2(1) National Court Rules (NCR) states:

2. Where writ of summons required

(1) Proceedings shall be commenced by writ of summons –

(a) where a claim is made by the plaintiff for any relief or remedy for any tort; and

(b) where a claim made by the plaintiff is based on an allegation of fraud.

  1. A plaintiff pleading fraud must commence suit by writ of summons: Andakelka Ltd v Petronas Ltd (2010) N3976, Davani J.
  2. As the plaintiffs’ claims include allegations of fraud, I observe that the plaintiffs chose the correct form of originating process when they commenced this proceeding WS No. 1416 of 2011 by writ of summons instead of originating summons.
  3. Order 8 r 30 NCR states:

30. Fraud, etc.

A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.

  1. Where a defendant is served with an amended statement of claim filed by a plaintiff, O 8 r 51(2) NCR provides:

51. Amendment of pleading without leave

...
(2) Where a plaintiff amends his statement of claim –

(a) if the defendant has filed his defence, he may amend his defence;

(b) the time for filing his defence or amended defence, as the case may be, shall be either the time fixed by or under these Rules for filing his defence or 14 days after service on him of a notice or document under Rule 58, whichever expires later.


  1. O 8 r 58 NCR relates to the different forms of notices which can be served on a party when amendments to a pleading are made. In general, a defendant on whom an amended statement of claim is served thereafter has 14 days pursuant to O 8 r 51(2) within which to file an amended defence, failing which application should be made for leave of the Court to file an amended defence out of time.
  2. I am satisfied that in the present instance the plaintiffs’ amended statement of claim does plead sufficient facts, matters and circumstances which, if proven on the civil standard, could substantiate causes of action based on fraud and unjust enrichment. In my view, the common law cause of action known as ‘account for monies had and received’ and the equitable remedy of ‘account for profit’ under the rubric of restitution could also apply to the facts set forth in the amended statement of claim but these additional causes of action were not expressly pleaded by the plaintiffs.
  3. Paragraph 12 of the plaintiffs’ amended statement of claim asserts, among other things, to the effect that Mr Kamiali falsely held himself out as a person who was affected by the police raids and that he had claimed he had property valued at K503,000 destroyed in those raids which gave rise to his claim for business losses of in excess of K2million. Paragraphs 13 and 14 of the amended statement of claim plead to the effect that Mr Kamiali was unjustly enriched when he caused himself to be paid consultancy fees of K1,604,650 without invoicing or giving details of his charges to the plaintiffs.
  4. I find that although the plaintiffs’ amended statement of claim could have been drafted with more clarity and with inclusion of additional particulars, nevertheless sufficient facts to establish causes of action based on fraud and unjust enrichment have been sufficiently pleaded by the plaintiffs to have enabled the defendants the opportunity to respond by seeking leave to file a defence to the plaintiff’s amended statement of claim pursuant to O 8 r 51(2) and, if minded to do so, to seek further particulars. Instead the defendants chose not to do so and have relied solely on their defence filed out of time on 18 April 2012 and which merely pleaded the general issue. I find that the plaintiffs’ amended statement of claim in WS No. 1416 of 2011, and therefore the plaintiffs’ pleadings, are not an abuse of process. The plaintiffs’ amended statement of claim is clearly a valid pleading. The defendants well knew what was being alleged against them and were given every opportunity to respond by taking steps to obtain leave to file an amended defence, but they failed to do so. Issue 1 is resolved in favour of the plaintiffs.

Issue 2: Do the defendants have a valid defence notwithstanding that their defence was filed out of time?


  1. The plaintiffs filed their writ of summons with endorsed statement of claim in this proceeding WS No. 1416 of 2011 on 28 October 2011.
  2. According to an affidavit of service sworn by Mr Mangobe on 12 March 2012 and filed on 28 March 2012 (Court document No. 9), Mr Mangobe and Senior Police Constable Philip Poko personally served a copy of the writ on Mr Kamiali at the National Court at Mt Hagen on 9 December 2011 at 9.12 am. Mr Mangobe deposes in his affidavit to the effect that a copy of the writ was subsequently served by him and by Police Constable Owen Olagua on the registered office of Ilila Development Corporation Ltd (sic) at Allotment 4 Section 2, Town of Tari, Southern Highlands Province (as it then was) on 5 January 2012 at about 10.00 am. Putting aside the fact that there is no company which has ever been incorporated under the name Ilila Development Corporation Ltd, there is no evidence before the Court that the dates and times of service of copies of the writ in WS No. 1146 of 2011 o. n the two defendants as deposed to by Mr Mangobe were ever disputed by Mr Kamiali
  3. As already observed, on 18 April 2012 a notice of intention to defend the writ and a defence to the writ was filed for Mr Kamiali and the company purporting to be named Ilila Development Corporation Ltd by Western Pacific Legal Services (Court documents nos. 10 and 11 respectively).
  4. Order 7 r 2 NCR states that a defendant may not, except by leave of the National Court, take any step in proceedings in the National Court unless a notice of intention to defend has been filed.
  5. O7 r 6(1) NCR provides that a defendant may give notice of intention to defend at any time without leave of the Court.
  6. However the situation is very different for the filing of a defence. Order 7 r 6(2) NCR provides:

6(2) Where a defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time.


  1. Order 8 r 4 NCR states:

4(1) Subject to Sub-rule (2), a defendant shall file and serve on the plaintiff his defence in Form 16 –

(a) where the statement of claim is endorsed on the writ – before the expiry of 14 days after the date of expiry of the time limited for him to give notice of intention to defend; ...

4(2) Where before the date on which a defendant files his defence, a plaintiff serves on that defendant notice of a motion under Order 12 Rule 38 for summary judgement on any claim for relief or part of any claim for relief –

(a) Sub-rule (1) shall not apply to that defendant; but

(b) if, on the motion for summary judgement, the Court does not dispose of all the claims for relief against the defendant the Court may order him to file and serve his defence before the expiry of a time fixed by the Court.

  1. The Rules also provide that if the time limit for the filing of a pleading such as a defence includes a period of time when the Court is on its annual vacation, then the Court’s vacation time must be excluded from the calculation of the time for the filing of the pleading unless the Court orders otherwise. Order 2 r 3 NCR states:

3(1) There shall be a vacation in each year from 20 December to the following 31 January, both inclusive.

...

3(3) The time of the vacation shall not be reckoned in the times appointed or allowed by these Rules for filing, delivering or amending any pleading unless so directed by a Judge nor shall a pleading be delivered or amended, nor judgment be entered in default, unless under the direction of a Judge.

  1. As the time limited for a defendant to file a notice of intention to defend is part of the calculation of the time for filing of a defence, it is part of the time allowed for the filing of a pleading under O 2 r 3(3) NCR, i.e. in this instance 30 days for the filing of a notice of intention to defend then 14 days thereafter for the filing of a defence, a total of 44 days. However the time of the Court’s vacation must be excluded from the reckoning of the time for the filing of a defence or other pleading by operation of O2 r 3(3) NCR: Life Insurance Corporation (PNG) Ltd v Bank of South Pacific Ltd (2012) N4740, Hartshorn J.
  2. In the present case the Court’s vacation period was from 20 December 2011 to 31 January 2012.
  3. Therefore, as no Judge had directed otherwise for the purposes of O 2 r 3(3) and as no motion for summary judgment was served on the defendants before the expiration of the time limited by the Rules for the filing of a defence, the first defendant Mr Kamiali had 44 days from date of service of the writ on him on 9 December 2011, excluding the Court’s vacation period, within which to file his defence. That period expired on 5 March 2012:

9 to 20 December 2011: 11 days

1 February 2012 to 5 March 2012: 33 days

44 days


  1. The second defendant, having been misleadingly named by Mr Kamiali as Ilila Development Corporation Ltd (instead of Ilila Development Limited), had 44 days from date of service of the writ on its purported registered office at Tari township on 5 January 2012, but excluding any portion of the Court’s vacation period, within which to file its defence. The 44-day period for the filing of the purported second defendant’s defence therefore commenced on 1 February 2012 and expired on 16 March 2012:

1 February 2012 to 16 March 2012: 44 days


  1. There is no dispute by the defendants that when their joint defence together with their notice of intention to defend was filed by Western Pacific Legal Services on 18 April 2012, their defence was filed out of time in circumstances where no application at all had been made by them under the proviso in O 7 r 6(2) NCR for leave to file their defence out of time.
  2. The filing by Western Pacific Legal Services on 18 April 2012 of a joint notice of intention to defend for the defendants was in itself evidence that the writ had been duly served on the defendants. This is because O 6 r 2(3) NCR (Service of Originating Process) states:

2(3) Where a defendant to any originating process serves a notice of intention to defend under Order 7, the original process shall be taken to have been served on him personally on the date on which that notice is filed or on such earlier date as may be proved.


  1. I am satisfied on the undisputed evidence presented at trial that it has been proven beyond the balance of probabilities that a copy of the writ was personally served on Mr Kamiali at Mt Hagen on 9 December 2011 and that a further copy of the writ was served on the purported registered office of the company mistakenly cited in this proceeding as Ilila Development Corporation Ltd as second defendant at Tari township on 5 January 2012.
  2. I have already observed that the statement of claim in the writ was subsequently amended pursuant to leave which was granted to the plaintiffs by Justice Kandakasi on 16 October 2015. The plaintiffs filed their amended statement of claim on 16 October 2016 (Court document no. 42). The amended statement of claim cited M.S.Wagambie Lawyers as third defendant in this proceeding WS No. 1416 of 2011, thereby enabling the plaintiffs to apply for interim restraining orders in connection with monies held in the trust account of that law firm for the plaintiffs. But I note that the amended statement of claim continued to seek without change exactly the same substantive relief which the plaintiffs had been seeking against the first and second defendants in their original statement of claim.
  3. I repeat that the defendants have not sought to file or to seek leave to file any amended defence to the plaintiffs’ amended statement of claim.
  4. What therefore is the present status of the defendants’ defence, given that it was irregularly filed out of time on 18 April 2012 and without any prior or subsequent leave application having been made for extension of time to file that defence or any amended defence?
  5. The principles relating to the situation where a defence is filed out of time are well settled. In Kenuai v Puri (2010) N3906 David J said this at para. 20:

“Order 7 rule 6(2) of the NCR provides that where a defendant gives a notice of intention to defend out of time, no defence can be filed without leave of the Court. It is a mandatory requirement: see Thomas Koral v Alex Kavie and Petrus Alex (1999) Unreported and Unnumbered Judgment of Kirriwom J – WS 286 of 1998; Luke Tai v Australia & New Zealand Banking Group (PNG) Limited (2000) N1979; Robin Kipane v. Felix Anton and PNG Waterboard (2003) N2429 and Tiaga Bomson v. Kerry Hart (2003) N2428.”


  1. Where a defence has been filed late and without leave, it is the same as if no defence has been filed and default judgment may be entered: Kipane v Anton (2003) N229, Kirriwom J.
  2. Outside the usual 44 days for the filing of a defence, a defendant has no right to file and serve a defence without leave of the Court: Takori v Yagari (2008) SC905, Kirriwom J, Gavara-Nanu J, Kandakasi J.
  3. However, where formal application is made by a defendant pursuant to O 7 r 6(2) NCR to seek leave of the Court to file a defence out of time, the Court nevertheless has an overriding discretion under O 1 r 7 NCR whether to grant or refuse such leave:

7. Relief from Rules

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.


  1. The Court has further discretionary power to grant relief to extend time limits prescribed by the Rules under O 1 r 15, which provides:

15. Extension and abridgement

(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.

(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.

  1. In Tipaiza v Yali (2005) N2971 Cannings J referred to four considerations which the Court should take into account when application has been made by a defendant under O 7 r 6(2) for leave to file a defence out of time:

(1) what is the extent of the delay in making the application for leave?

(2) what are the reasons for the delay?

(3) does the defendant appear to have a good defence?

(4) where do the interests of justice lie?


  1. My perusal of all 3 volumes of the Trial Book, which were certified correct by Mr Kari, Mr Makeu and Mr Amaiu, establishes that at no time prior to October 2019 did the defendants file any application seeking leave of the Court pursuant to the proviso in O 7 r 6(2) NCR for extension of time to re-file their defence which had been irregularly filed without leave on 18 April 2012, nor did the defendants subsequently file any application for extension of time to file an amended defence in answer to the plaintiffs’ amended statement of claim filed by PNG Legal Services on 16 October 2015 pursuant to leave granted by Justice Kandakasi on 6 October 2015.
  2. I observe that the defendants by their counsel Mr Amaiu agreed in the Revised Statement filed on 9 May 2019 to the effect that one of the core issues which the Court should address at trial is whether the first and second defendants have a valid defence and if so, what is the basis for their defence.
  3. As I have already stated, the usual consequence of a defendant failing to seek leave pursuant to O 7 r 6(2) NCR to file a defence out of time is that an irregularly filed defence is invalid. It has no legal effect whatsoever unless steps are taken by a defendant to obtain an order to rectify the nullity by obtaining leave of the Court for an extension of time to file a defence or amended defence.
  4. It is not in dispute in this proceeding that no consent was ever given by any of the plaintiffs to the defendants’ late filing of their defence on 18 April 2012. Therefore O 1 r 15(2) NCR, which allows for the late filing of a defence by consent without an order for extension, has no relevance to the circumstances of this case.
  5. Mr Mangobe in his affidavit filed in this proceeding on 5 May 2015 drew the attention of the Court and the defendants to the irregularities surrounding the defendants’ defence. Mr Mangobe states at para. 10 of his affidavit:[22]

“10. The Defendant[s] did not file any defence, or if filed it was filed outside of the time period and so they should restrict themselves to the changes made in filing any defence.”

  1. The first and second defendants had more than 8 years prior to trial to file an application pursuant to O7 r 6(2) NCR seeking leave of the Court for grant of an extension of time to file a valid defence to the primary plaintiffs’ initial statement of claim filed on 28 October 2011.
  2. The first and second defendants had more than 5 years prior to trial to file a similar application for leave of the Court pursuant to O 7 r 6(2) NCR for grant of an extension of time to file a valid defence to the plaintiffs’ amended statement of claim filed on 16 October 2015.
  3. As no application by the defendants for leave for extension of time to file a defence or amended defence came before the Court prior to trial, the first and second defendants have continued to be in default for the filing of any valid defence in this proceeding, whether by way of defence to the plaintiffs’ initial statement of claim or by way of defence to the plaintiff’s amended statement of claim. No explanation for that continuing default was given by the defendants at trial. The inescapable conclusion is that the defendants’ defence was already invalid when it was filed on 18 April 2012. The defence has continued to be invalid right down to the present time as the defendants have taken no steps at all to remedy the initial invalidity of their defence.
  4. I accordingly find that the defence filed by the first and second defendants on 18 April 2012 was and is a nullity. It is invalid because it was a late defence filed without leave of the Court. No steps have been taken by the first and second defendants to rectify that otherwise fatal defect, a matter referred to at paras. 6 and 7 in the plaintiffs’ supplementary submissions filed in this proceeding on 22 June 2020 (Court document no. l89). Procedurally and substantively the situation is as if no defence at all was filed by the first and second defendants. I rule that the defendants’ defence filed on 18 April 2012 is invalid and is of no lawful effect in this proceeding.

Issue 3: As the defence is invalid, are the plaintiffs entitled to judgment whether by default or otherwise?


  1. The defendants, having failed to comply with the rules of Court relating to the filing of their defence, have exposed themselves to judgment by default being entered against them.
  2. Division 3 of O 12 NCR relates to the procedure whereby the National Court can order that judgment be entered against a defendant in default. The default judgment procedure applies only to proceedings commenced by writ of summons: O 12 r 24. The procedure does not apply to proceedings commenced by originating summons: Magiten v Beggie (2005) N2880, Cannings J.
  3. Order 12 r 25 NCR provides:

25. Default

A defendant shall be in default for the purposes of this Division –

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.

[underlining added]

  1. However, entry of judgment based on proof of a defendant’s default in compliance with O 12 r 25 NCR is not automatic. The Court has a discretion when determining whether in the particular circumstances of a case judgment by default should be entered.
  2. It was held by the Supreme Court in Kunton v Junia (2006) SC 929 (Los, Jalina, Cannings JJ) that entry of default judgment is not a matter of right. There are certain preconditions that need to be satisfied but that even when all are satisfied, the decision whether to enter default judgment is still a matter for the discretion of the primary judge.
  3. The Supreme Court in Kunton v Junia refers at para. 21 of its decision to the following cases which show that when deciding how to exercise its discretion whether to enter default judgment, a Court can take into account a wide range of considerations, including:

(1) whether the statement of claim raises serious allegations of fraud or deceit, in which case the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits (Kitipa v Auali (1998) N1773);

(2) the extent of the default by the defendant (Kunkene v Rangsu (1999) N1917);

(3) whether the defendant appears to have a good defence (Kunkene v Rangsu);

(4) whether the statement of claim amounts to an abuse of process (Laki v Alaluku (2000) N2001);

(5) whether the pleadings are vague, i.e. whether the statement of claim discloses a reasonable cause of action (Laki v Alaluku; Giru v Muta (2005) N2877);

(6) whether the plaintiff has prosecuted his case diligently (Bomson v Hart (2003) N2428);

(7) whether the entry of judgment would prejudice the rights of co-defendants (Mininga v The State (1996) N1458; Beecroft No 51 Ltd v Seeto (2004) N2561);

(8) whether the interests of justice would be served by the entry of default judgment (Giru v Muat).


  1. I now apply these considerations to the present case.
  2. As to whether the amended statement of claim raises serious allegations of fraud or deceit? Yes, and these allegations must be proven on the evidence that was given at trial.
  3. As to the extent of the default by the defendants, I have already found that the defendants were clearly in default when their defence was filed on 8 April 2012. The defendants had by that time already failed to obtain leave of the Court to file their defence out of time. The defence was and is a nullity.
  4. As to whether the defendants appear to have a good defence, they do not. The defence filed for the defendants on 8 April 2012 out of time and without leave to do so simply pleaded the general issue by way of defence to the plaintiffs’ initial statement of claim which was endorsed on the plaintiffs’ writ filed on 28 October 2011. No facts were alleged in the defendant’s defence filed on 8 April 2012 to counter the allegations contained in the plaintiffs’ initial statement of claim. When the plaintiffs subsequently filed their amended statement of claim on 16 October 2015 pursuant to leave of the Court granted on 6 October 2015, the defendants had every opportunity to file a defence to the amended statement of claim. The defendants conspicuously failed to do so.
  5. As to whether the plaintiff’s amended statement of claim amounts to an abuse of process, I have already ruled that it is not. The plaintiffs’ amended statement of claim is competent.
  6. As to whether the pleadings are vague, I have already ruled that the plaintiffs’ amended statement of claim discloses allegations of facts which, if proven, support causes of action in fraud and unjust enrichment. It is the defendant’s defence, a nullity in itself, that is vague and unsubstantiated by the absence of any alleged facts pleaded in rebuttal.
  7. As to whether the plaintiffs have prosecuted their case diligently, the Court’s record for this proceeding WS No. 1416 of 2011 going back almost 10 years before commencement of trial in June 2020 shows that all parties have at times been slow to prosecute their respective cases, so lack of diligent prosecution by one party to my mind has largely cancelled out lack of diligent prosecution by the other parties.
  8. As to whether the entry of judgment would prejudice the rights of co-defendants, no such prejudice exists. The second defendant is a purported company which Mr Kamiali as first defendant has claimed is his own company but which I have already ruled does not exist and is to be struck out as a party to this proceeding.
  9. As to whether the interests of justice would be served by a finding that the entry of default judgment against the defendants would be warranted in this case, I consider that the interests of justice do indeed require such a finding in view of the preponderance of the foregoing matters.
  10. In the result, I am compelled to find that Mr Kamiali is liable to the plaintiffs for the two causes of action which are apparent from the plaintiffs’ amended statement of claim. This is not only because the defendants’ defence to the plaintiff’s initial statement of claim is itself a nullity for having been filed out of time without leave but also because my perusal of the voluminous affidavit material filed by the defendants has failed to show that the defendants adduced any evidence of substance at trial to rebut the matters pleaded in the plaintiffs’ amended statement of claim.
  11. I accordingly find in the exercise of the Court’s discretion that judgment is to be entered for the plaintiffs in this suit in view of the defendants’ default in having filed a defence which is a nullity and in view of the defendants’ failure to have taken any steps to rectify their own default.
  12. As I have determined that the plaintiffs are entitled to a finding of liability on the part of Mr Kamiali for their causes of action, I now turn to assessment of quantum of damages in respect of Mr Kamiali’s liability to the plaintiffs.

Issue 4: What is the quantum of damages to which the plaintiffs are entitled?


  1. If damages are to be awarded to the plaintiffs, then the evidence must establish on the civil standard of proof that actionable fraud, otherwise known as the tort of deceit, has been committed by Mr Kamiali and that he unjustly enriched himself by his fraudulent conduct.

Law on Fraud

  1. Fraud is defined in the Shorter Oxford English Dictionary as “the using of false representations to obtain an unjust advantage or to injure the rights or interests of another.”[23]
  2. The Macquarie Concise Dictionary defines fraud as meaning “deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.”[24]
  3. Fraud in civil law is based on the English common law action of deceit in tort: Derry v Peek (1888) LR 14 App Cas 337; Magill v Magill [2006] HCA 51.
  4. In Welham v Director of Public Prosecutions [1960] AC 103 at p.133 Lord Denning said, with reference to the term “intent to defraud”, that “if anyone may be prejudiced in any way by the fraud, that is enough.”
  5. The classic formulation of fraud for the purposes of actionable deceit is to be found in the judgment of Lord Herschell in Derry v Peek (supra) at p. 374:

“First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.”

  1. This statement of Lord Herschell has been cited and approved in numerous Papua New Guinea cases: see Post PNG Ltd v Hubert (2004) N2656; In re O’Dwyer (2007) N3226; Pololi v Wyborn (2013) N5253; Esso Highlands Ltd v Willie (2018) N7685.
  2. In Maki v Pundia [1993] PNGLR 337 the plaintiffs alleged that the defendants’ certificate of title to a portion of land near Mount Hagen was obtained by fraud. The defendants countered that the pleadings were deficient and should be struck out because insufficient facts to establish fraud had been set out in the plaintiffs’ amended statement of claim. Woods J said this at pp. 338, 339:

“Courts have required that a person pleading fraud should set out the facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularised.

... The amended statement of claim clearly does not plead any facts, matters or circumstances. It merely asserts that the first defendant fraudulently obtained title, without giving any details ... it provides no facts to support that allegation.”


His Honour struck out the amended statement of claim for non-compliance with O 8 r 30 NCR and stayed the case generally to enable the plaintiffs to take steps to repair the situation, one option being for the plaintiffs to seek leave to file a further amended statement of claim containing the necessary degree of detail to support the allegation of fraudulent conduct.

  1. As a charge of fraud is a serious matter, the standard of proof required at trial is the preponderance of probability. However, where actionable fraud is alleged, a civil court will usually require a higher degree of probability than that which is required to establish proof in the tort of negligence. A civil court does not adopt so high a degree of proof as a criminal court, but it does require a degree of probability commensurate with the occasion: Bater v Bater [1951] P 35; Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247; Blyth v Blyth [1966] A.C. 643 (HL).
  2. In Alman v Bank of South Pacific Ltd (2010) N6639, Hartshorn J stated at para. 10:

“This standard of proof was considered by Sheehan J in Haiveta v. Wingti (No. 1) [1994 PNGLR 160, when he said:

“This standard of proof is the civil standard of proof on the balance of probability. Though not as onerous as the standard in criminal cases, the evidence must nevertheless be convincing commensurate with the seriousness of the matter in question. The evidence must therefore be real and substantial.” ”

  1. As to the measure of damages where fraud is proven to have occurred for the purposes of the tort of deceit, I cite McGregor On Damages (2014) 19th Ed. at p. 1805 para. 47-002:

“The correct measure of damages in the tort of deceit is an award which serves to put the claimant into the position he would have been in if the representation had not been made ...”


Law on Unjust Enrichment

  1. The cause of action known as ‘unjust enrichment’ is a specie of the equitable remedy of restitution. Restitutionary claims involve enrichment of a defendant at the expense of a claimant in circumstances where it is unjust for the defendant to retain that enrichment: see generally Goff & Jones, The Law of Restitution (7th edn, 2007), Chap. 1.
  2. In Koroguen v Wagen (2008) N3422, Cannings J identified the elements of a claim for unjust enrichment as being threefold. For a claim of unjust enrichment to be successful, a plaintiff must prove, on the balance of probabilities:

1. that the defendant has been enriched by the receipt of a benefit; and

2. that the defendant has been enriched at the plaintiff’s expense; and

3. that it would be unjust to allow the defendant to retain that benefit.

  1. These three elements, which require proof on the civil standard to constitute a claim for unjust enrichment, have been applied in Turik v Gubag (2013) N5132; Gaua v Amir (2010) N3891; and by the Supreme Court in Laka v Nui (2013) SC1233 (Salika DCJ, Hartshorn J, Kariko J).

Evidence of Fraud and Unjust Enrichment

  1. There are two distinct areas of fraudulent or deceitful conduct on the part of Mr Kamiali which have been pleaded in the plaintiffs’ amended statement of claim:

(1) It is alleged by the plaintiffs that Mr Kamiali’s compensation claim against the State in WS No. 1185 of 1996 was fraudulent in that he falsely claimed and gave false evidence in that proceeding that he lost property worth K2million in the subject police raids when he had no such property which was destroyed or lost.

(2) It is further alleged by the plaintiffs that Mr Kamiali unjustly enriched himself when he fraudulently caused himself to be paid as a consultant an amount of K1,604,650 from monies held on behalf of the plaintiffs by various law firms, including MS Wagambie Lawyers, in circumstances where no details of consultancy charges or accounting for these monies had been given by Mr Kamiali or his company to his co-plaintiffs in WS No. 1185 of 1996.

  1. I deal first with the plaintiffs’ assertion that Mr Kamiali’s claim in WS No. 1185 of 1996 for compensation was fraudulent. This was a claim by Mr Kamiali which was squarely targeted at the State.
  2. A copy of an affidavit sworn by Mr Kamiali on 15 March 2002 and filed in WS No. 1185 of 1996 on 23 May 2002 in support of his compensation claim as a result of the police raids at the plaintiffs’ villages is annexure “C” to the affidavit of Mr Hangobe sworn on 3 November 2015 and filed in WS No. 1416 of 2011 on 4 November 2015.[25] This affidavit from Mr Kamiali is one of 58 affidavits from the plaintiffs in WS No. 1185 of 1996 which set out details of each of those plaintiffs’ respective claims for compensation. Mr Kamiali’s subject affidavit claimed that he had sustained loss of assets and business profit of K2,001,650. He also claimed in his affidavit for past medical expenses of K40,000, future costs of medical treatment, general damages for loss of quality of life and the costs of his claim.
  3. Mr Kamiali said in his affidavit that that he held two degrees from the University of Papua New Guinea, a Bachelor of Arts degree and a degree in theology, and that he was a former minister of the United Church. Mr Kamiali deposed in that affidavit that he came from Hangapo Village near Tari and that he used to have a ‘thriving business including a large trade store and a motor vehicle [which] were completely destroyed by police in the raid.” Mr Kamiali further deposed to the effect that as at 2002 he was still recovering from the devastation caused to his business operations by the police raids back in August 1995. He deposed that his health had been affected by the police raids and that it had deteriorated to such extent that he had had to undergo heart surgery in Australia in November 2001.
  4. Mr Kamiali briefly deposed at paragraphs 4 and 5 of his affidavit as to the alleged losses he sustained as a result of the police raids in August 1996 as follows:

“4. As soon as my properties were destroyed, I asked an accountant to compile a report of all that I have lost in the raid. His report is as follows:

Current Assets

Cash K 10,000.00
Stock K140,000.00

Fixed Assets

Land K 3,000.00
Building K120,000.00
Vehicle K230,000.00

Total Assets K503,000.00

Creditors K100,000.00

Annual Profit was: K249,775.00

5. In 6 years I would have made K1,498,650.00. I have lost assets worth K500,000 and the profit I would have made. My claim therefore is a total of K2,001,650 plus costs and medical expenses of about K40,000.00 and including ongoing costs for medical treatment and general damages for lost of quality of life.”

  1. Mr Kamiali did not give any indication in this affidavit as to where Hangapo Village is situated in relation to the four villages of Paijaka, Hariba, Ekanda and Tongoma which were the subject of the police raids on 10 and 11 August 1995. However the parties’ Revised Statement filed in this proceeding WS No. 1416 of 2011 on 9 May 2019 states the following facts at items 4, 5, 11, 12 and 13, facts which were all agreed by Mr Kamiali:
No.
Facts
Remarks (Agreed or Disputed)
4.
The [police] raid was conducted in the various villages in Tagali LLG and were:
I. Paijaka village in Tagali LLG
II. Hariba village in Tagali LLG
III. Ekanda village in Tagali LLG
IV. Tongoma village in Tagali LLG
The affected clans were:
I. Haya Clans in Tagali LLG
I. Hambua Clans in Tagali LLG
II. Heli Clans in Tagali LLG
III. Tombe Clans in Tagali LLG
[IV] Toma Clans in Tabali LLG
Agreed
5.
There were no other Police raids conducted elsewhere in Tari on the 11 and 12 August 1995 in the Hela Province i.e. Hayapuka LLG, Tebi LLG, Tari Urban LLG
Agreed
...
...
...
11.
When the Police conducted an illegal raid, the villages as mentioned above on the 10th and 11th August 1995, the First Defendant was a high school teacher at Lumulu [sic] High School and hails from the Tugurea clan of Hoeabia [Village] in the Tebi LLG of Tari-Pori District in Hela Province.
Agreed
12.
The First Defendant’s village is about 50 to 60 kilometres away from the affected villages of Paijaka, Ekanda and Hariba.
Agreed
13.
At the relevant time between 1995 and 1996, the First Defendant was teaching at Lumulumu High School which school is situated about 10km from Paijaka Village.
Agreed

  1. Mr Kamiali’s affidavit which sets out his compensation claim and filed in WS 1185 of 1996 on 23 May 2002 unequivocally states that he had a large trade store business and motor vehicle which were completely destroyed in the police raids which took place in August 1995. However, Mr Kamiali’s affidavit gives no indication at all as to where his alleged large trade store and motor vehicle were located immediately prior to their purported destruction in the police raid.
  2. Mr Kamiali was asked by counsel Mr Kari during cross-examination at trial in WS No. 1416 of 2011 on 23 June 2020 to identify where his trade store business and vehicle were situated before these alleged assets of his were obliterated by the police raids. Mr Kari produced a map to Mr Kamiali showing the Tagali LLG, Tebi LLG, Tari LLG and Hayapuga LLG areas in Hela Province. Mr Kamiali was asked by Mr Kari to mark on that map, exhibit “D1” at trial, where his trade store was situated. Mr Kamiali indicated on that map the location of the trade store he said he was operating and which he said was destroyed in the police raids. He did this by highlighting in yellow on the map a place name “Kaundi”, which he pronounced as “Kuandi”, and by then drawing a circle around that place name on the map using a blue-coloured pen. Mr Kamiali said in evidence that this was his village, his tribal ground, which I note on the map is located not far from Hangapo Villages 1 and 2 and Hoeibia Village, all of which villages are shown on the map as being close together and all within the Tebi LLG area, not the Tagali LLG area of Hela Province. In the Revised Statement, Mr Kamiali had already agreed as a fact that he came from Hoeabia Village in the Tebi LLG.
  3. When Mr Kamiali was challenged during cross-examination by counsel Mr Kari for the Group 1 Plaintiffs and then by counsel Mr Makeu for the Group 2 Plaintiffs that he did not have a trade store that was destroyed, Mr Kamiali said that the police raids were carried out all over the Tari area. The transcript of the proceeding on 23 June 2020 at p. 155 gives this exchange between Mr Makeu and Mr Kamiali:

“Mr Makeu:

Q: There are about 58 or 59 plaintiffs [in WS No. 1185 of 1996] and all of them claim to come from Ekanda, Paijaka, Hariba, Tongoma and no other places. You were the only one from another village that was included in this claim, is that ---

A: No, no. there were - there are only few places mentioned then. The police raid happened wider than the name of places located there.”

  1. I observe that other than Mr Kamiali’s sweeping statement that the police raids were conducted at places other than at Ekanda, Paijaka, Hariba and Tongoma Villages, which are all within Tagali LLG, there is absolutely no evidence in this present proceeding WS No. 1416 of 2011 to support the proposition that the subject police raids were conducted anywhere within the Tebi LLG or the Tari LLG areas, nor is there any reference in Justice Hinchliffe’s decision in WS 1185 of 1996 to the police raids having been carried out in villages other than at Ekanda, Paijaka, Hariba and Tongoma. If more distant villages had been destroyed in the police raids, including Mr Kamiali’s reputed village at Kaundi more than 50 kilometres away from the four affected villages in the Tagali LLG, I consider that evidence to corroborate Mr Kamiali’s assertion that he had a trade store at Kaundi destroyed in the police raid would have surfaced in these two proceedings long ago. There is no such evidence.
  2. Mr Kamiali was also extensively questioned during cross-examination as to his business records for his trade store business. Reproduced below is an extract from p.127 of the transcript for the hearing on 23 June 2020 which gives Mr Kamiali’s evasive responses to cross-examination on this crucial issue by Mr Kari, counsel for the Group 1 Plaintiffs:

“Mr Kari:

Q: Where was the trade store?

A: That was located in Tepi [LLG] and in Kuandi, both places.

Q: That was located in Tepi [LLG] and Kuandi?

A: Yes.

Q: Okay, you also had a large truck almost [K]300,000?

A: No, I had no truck. I normally hire other people’s car to get my store goods.

Q: When you claim in the ---

A: I never claimed any quote for a damaged large tuck.

Q: In the writ of summons [proceedings in WS No. 1185 of 1996] ---

A: I never owned anything.

Q: In the writ of summons [proceedings] you said, I had a trade store, was about K150,000 turnover and you had a truck worth K230,000. Where was the truck operating?

A: Did I claim that I had a truck?

Q: You had a truck.

A: I never told you that I had a truck.

Q: But in the original claim, 1185 – WS 1185, you said the properties destroyed were this, your land was destroyed.

A: Yes.

Q: Trade store was destroyed. I am asking you where were those things”

A: They were in Kuandi.

Q: Kuandi?

A: Yes.

Q: Then why are you disputing that you do not have a truck?

A: I did not say I did not own the truck. I owned a business. I hired other people’s car to get the goods.

Q: Can you advise the court whether you were running a business or you were teaching?

A: I was doing both. I was a businessman.

Q: Do you have any business records to show that you were running a business?

A: Yes.

Q: Do you have any business records to show you were running a business?

A: It was all burnt down by the raid so how I get the raid – records.

Q: No, but you stated ... that an accountant prepared the accounts for you. Do you even have that account? You stated that an accountant prepared those material for you, do you have a report of the accountant?

A: I did not say that an accountant prepared ---

Q: It was prepared after the raid.

A: I never made that statement.

Q: Do you have any bank statement to show that you were operating a large business? Bank was not burnt down by the raid. Do you have any bank statements to show that you were operating a ---

A: I did not do deposit. I did not do deposit in the bank. There was a tribal fight that was closing the gaps between Tari and Mendi. We did not have any bank.

Q: At that time there was a PNGBC bank in Tari. Did you ---

A: I am not sure, that is so long ago.

Q: No, did you make any attempt to deposit or is there any record of deposit?

A: No, most of the money I was getting I was increasing my stock. I did not get into any banking. I had to go and buy goods in order to ---

Q: [K]2 million is a large property and business to be destroyed. Are you able to tell the court whether you have any record to show that were running the – or is this a ---

A: Part of my claim is – the business loss, I would have business loss. I have calculated into the loss. If I had this much then I would have this for the period of time that they had lost. So it is a calculated loss that has been weaved into the claim.”


  1. The upshot of Mr Kamiali’s evidence on this line of questioning by Mr Kari, when taken in the context of what was agreed by Mr Kamiali in the parties’ Revised Statement, is that when Mr Kamiali was engaged by the Dept of Education as a teacher at Lumulumu High School some 10 kilometres from Paijaka Village in Tagali LLG, he contends that he was at the same time also operating a “thriving” trade store at Kaundi Village, which he referred to as Kuandi Village, in his tribal territory in Tebi LLG when the police raids occurred in August 1995.
  2. Mr Kamiali denied under cross-examination by Mr Kari that he owned a large truck worth K230,000 which was destroyed in the police raids. He denied that this amount of K230,000 formed part of his compensation claim in WS No. 1185 of 1996. Mr Kamiali repeatedly said in cross-examination that he did not own a large truck and that he instead hired other people’s cars to transport goods needed for his trade store businesses.
  3. As can be seen from the transcript extracts, Mr Kamiali also said in evidence during cross-examination that he did not deposit any monies from his trade store businesses in any bank. His trade store business or businesses operated on a cash only basis. He said that any business records he had for his trade store business operations were destroyed in the police raids. He had no business records or banking records he could produce to this Court to substantiate his trade store business operations or that his trade store at Kaundi Village even existed.
  4. The matters pleaded in the plaintiffs’ amended statement of claim in WS No. 1416 of 2011 put Mr Kamiali on notice that if he was to defend allegations of fraudulent conduct on his part, he would need to adduce cogent evidence in support of his general denial of the plaintiffs’ allegations that he had committed fraud against the State and fraud against the plaintiffs.
  5. The affidavit material of the Group 1 Plaintiffs and the Group 2 Plaintiffs adduced in this proceeding has consistently maintained that Mr Kamiali never operated a trade store in any of the villages affected by the police raids, that he had no property of any value that was destroyed or lost in those police raids and that he falsely inserted himself as one of the claimant plaintiffs in WS No. 1185 of 1996. I refer in this regard to these affidavits:

“7. Mokola Kamiali did not have any properties in the villages raided as he was a high school teacher as he is from the Libura and Tugurea Kili Clans of Hoeyabia Village within Tepi LLG.” [26]

“22. The First Defendant claimed he was a businessman with trade store and cars and other properties which are lies.” [27]

“7. The victims of the raid whom were aggrieved collectively pursued the matter to court in 1996. We were fifty-seven (57) plaintiffs in number but Mokola Kamiali secretly included himself as one and increased the number to fifty-eight (58) plaintiffs. We have filed the proceedings styled WS 1185 of 1996 and sued the State.” [28]


“9. The First Defendant is not from the affected villages and as such never owned any property in those affected villages from which he could claim any loss. In fact he is from the Tebi Local Level Government Area. His engagement by the Plaintiffs was to assist Ekari Haiagu collate information and engage a law firm.” [29]

“13. I verily confirm that the First Defendant, Mogola Kamiali, does not come from the affected villages but hails from the Tepi LLG which is more than 7 hours walk from our villages.

  1. Mr Mogola Kamiali was only engaged by our people as a consultant to assist in pursuing our claim simply because he is an educated person and was a teacher teaching in our area, however later on he falsely represented himself as a Plaintiff.” [30]
  2. In view of Mr Kamiali’s evasive responses to Mr Kari’s questions during cross-examination, I reject Mr Kamiali’s vague assertions under oath that at the time of the subject police raids on 10 and 11 August 1995 he was operating a trade store business at Kaundi Village in his home territory close to Hangapo Villages 1 and 2 and Hoiebia Village in Tebi LLG area, more than 50 kilometers away from the affected villages in the Tagali LLG area. I consider that it is simply not credible that a schoolteacher in Mr Kamiali’s situation could maintain his teaching post at Lumulumu High School and yet either with employees or single-handedly still operate a large trade store which, 50 kilometers away, coincidentally happened to be located in an area said by Mr Kamiali to have been devastated by police raids. I accept as truthful the evidence of plaintiffs Mr Mangobe, Mr Agiru, Mr Hetabe and other of the plaintiffs that Mr Kamiali’s assertion that he operated a trade store which was destroyed by the police raids was a complete fabrication.
  3. I am reinforced in this conclusion by the fact that at trial in WS No. 1416 of 2011 in June 2000, Mr Kamiali failed to produce any business records or photographic evidence which could have verified the existence of the trade store he said he was operating at Kaundi Village at the time of the police raids. Moreover Mr Kamiali’s contention that he never deposited the proceeds of his so-called trade store businesses in any bank account but operated on a strictly cash basis for the purchase of stock is simply not credible. I reject that evidence out of hand.
  4. I observe that no report from any accountant was annexed to Mr Kamiali’s affidavit filed in WS No. 1185 of 1996. Nor was any accountant’s report produced in evidence by Mr Kamiali at the trial of this present proceeding WS No. 1416 of 2011. Yet Mr Kamiali expressly stated at para. 4 of his affidavit that as soon as his properties were destroyed, he had asked an accountant to compile a report of all that he had lost in the police raids. If that accountant’s report had truly been prepared, the only logical conclusion that this Court can make is that Mr Kamiali would have had no difficulty in producing that accountant’s report to this Court, particularly when Mr Kamiali had been challenged by the present plaintiffs that his compensation claim in WS No. 1185 of 1996 was fraudulent because it was said that he had never operated any trade store business in the area where the police raids took place and because the plaintiffs had repeatedly alleged in their affidavit material that Mr Kamiali did not have any property of value which was destroyed or lost as a result of the police raids. The absence of any accountant’s report in the evidence given by Mr Kamiali at the trial of this proceeding speaks volumes.
  5. I observe from the decision of Justice Hinchliffe in WS No. 1185 of 1996 delivered on 24 February 2006 that there is no mention in that decision of any further evidence beyond Mr Kamiali’s short affidavit filed on 23 May 2002 which was presented at the trial on assessment of damages conducted by Justice Hinchliffe in 2004 or 2005 to corroborate Mr Kamiali’s contention that he had K10,000 in cash, trade store stock worth K140,000, buildings worth K120,000 and a vehicle worth K230,000, all of which he claimed in his affidavit had been destroyed in the police raids.
  6. What is just as curious is that Mr Kamiali claimed loss of land worth K3,000. If Mr Kamiali did in fact have land at Kaundi Village, that land would still exist. There was no evidence before me, or before Justice Hinchliffe that I can ascertain from the reading of his Honour’s decision, to the effect that any portion of land on which Kaundi Village was constructed was itself permanently degraded or destroyed by the police raids in August 1995.
  7. Furthermore, no tax returns or tax assessments by the Internal Revenue Commission in respect of Mr Kamiali’s reputed trade store or business operations at Kuandi Village to substantiate Mr Kamiali’s alleged loss of stock of K140,000, loss of buildings of K120,00 loss of vehicle of K230,000, loss of creditors of K100,000 and loss of annual business profit of K249,775 were ever furnished by Mr Kamiali in evidence at the assessment of damages trial conducted by Justice Hinchliffe or in evidence before me in this present proceeding.
  8. It has long been held in Papua New Guinea that the courts cannot award any damages for loss of business income if no proper business records including tax returns have been presented in evidence. This applies even to village trade store and PMV businesses: Mappa v PNG Electricity Commission [1995] PNGLR 170, Woods J; Spirit Haus Ltd v Marshall (2004) N3630, Kandakasi J; Pawa v Yumbun (2009) N3784, Makail J.
  9. In Liwa v Vanimo (2008) N3486 Makail J said this at para. 33 in connection with claims for loss of business profits, in that instance loss of business income from PMV operations:

“There must be some independent evidence like financial statement(s) from an accountant to support the claim for loss of profit. If the accountant’s evidence and financial statement(s) are to be relied upon, then they must be based on primary documents like bank statements, receipts and invoices, contracts and other documents which would show assets acquired, income due and liabilities incurred by the business.”

  1. In similar vein, there was no evidence presented by Mr Kamiali either before Justice Hinchliffe in WS No. 1185 of 1996 or before this Court at trial in WS No. 1146 of 2011 of medical reports in respect of Mr Kamiali’s alleged health issues or of receipts or other documentary evidence in connection with his alleged past and estimated future medical expenses which he claimed to have sustained as a result of the deterioration of his health because of the police raids.
  2. As to the present proceeding WS No. 1416 of 2011, there was not one shred of evidence that was adduced at trial by Mr Kamiali to support his contention that he owned and operated a trade store business at Kaundi or elsewhere in the Hela Province immediately prior to the police raids on 10 and 11 August 1994, or that any vehicle and other property of his was destroyed or lost in those police raids.
  3. I find that the only reason Mr Kamiali was able to get away with his fraudulent claim for compensation in WS No. 1185 of 1996 was because, as Justice Hinchliffe observed at pp. 4 and 5 of his decision, in reference to the judgment by default which had been entered against the State and the police defendants:

“The plaintiffs also submitted that their figures should be accepted because the defendants have not disagreed with them. I should say that this is somewhat unusual ... This case has not been made any easier for me by the fact that the defendants, apart from filing a Notice of Intention to Defend, have shown no interest in the case even though it is blatantly obvious that there is a considerable amount of money involved. There is not just one plaintiff. There are in fact fifty-eight. The plaintiffs are claiming in excess of four million kina and for reasons unknown to me [the defendants] have not even filed submissions regarding the quantum of damages.”

  1. I have no doubt that if the State had challenged Mr Kamiali’s insupportable compensation claim in WS No. 1185 of 1996 and if that claim been tested on the strength of existing law as it then stood as pronounced by Woods J in Mappa v PNG Electricity Commission, a case decided in 1995, Mr Kamiali’s claim would have been shown to be what it was, a fraudulent sham, inserted into the proceeding in WS No. 1185 of 1996 by an opportunistic Mr Kamiali as consultant to the plaintiffs.
  2. I accept that the majority of the other 57 plaintiffs in WS No. 1185 of 1996 were not aware that Mr Kamiali had inserted himself as one of the aggrieved plaintiffs in that proceeding until after Justice Hinchliffe had delivered his reserved decision on 24 February 2006, by which stage it was too late for anyone to contest the extraordinarily high award of special damages amounting to more than K1.6 million which Mr Kamiali had received.
  3. I am satisfied that the plaintiffs have proven fraud by Mr Kamiali against the State. However, the fraud which I have retrospectively found was committed by Mr Kamiali against the State in WS No. 1185 of 1996 is not compensable in any way in this current proceeding. This is because the State has not been joined as a party in WS No. 1146 of 2011. In any event the State forfeited any right it may have had to contest Mr Kamiali’s fraudulent K2million claim for compensation when the State failed to defend or to otherwise challenge Mr Kamiali’s spurious claim in WS No. 1185 of 1996.
  4. The reason I have dwelt at length in this decision on the evidence which establishes to my mind, well beyond the balance of probabilities, even beyond reasonable doubt, that Mr Kamiali’s compensation claim against the State in WS No. 1185 of 1996 was fraudulent is because I consider that the evidence in that regard is indicative of Mr Kamiali’s similar lack of probity when he accessed monies held for the benefit of his co-plaintiffs in WS No. 1185 of 1996 in the trust account of M.S.Wagambie Lawyers.
  5. The fraud alleged by the plaintiffs to have been perpetrated against them by Mr Kamiali relates to his accessing and unjust payment to himself and/or of his company of monies paid by the State via the Department of Finance which were largely on account of costs and post-judgment interest arising from Justice Hinchliffe’s judgment in WS No. 1185 of 1996 and which monies were paid into or ended up in the trust account of W.S Wagambie Lawyers. Those monies are said by the plaintiffs to have belonged to them, not to Mr Kamiali.
  6. The plaintiffs have pleaded in their amended statement of claim to the effect that they sustained loss and damage when Mr Kamiali by his fraudulent and dishonest activities caused monies totalling K1,604,650 held by Paulus M. Dowa Lawyers and M.S.Wagambie Lawyers to be paid out to himself. These monies were claimed by Mr Kamiali to be consultancy fees allegedly owed to him by the plaintiffs on account of services performed by him in pursuing the plaintiffs’ successful claims in WS No. 1185 of 1996, which of course included Mr Kamiali’s own claim awarded to him in that proceeding in the sum of just over K1.6 million – and which claim against the State I have found was in itself fraudulent.
  7. However, I have already observed that on 26 October 2011, two days before Chief Tagili filed this current proceeding WS No. 1416 of 2011, Mr Kamiali’s purported company Ilila Development Corporation Ltd, non-existent because it had not been incorporated under that name, filed proceeding WS No. 136 of 2011 as plaintiff. The writ cited “Malinga Tagili & Ors for and on behalf of Heli, Hambua, Haya, Gawi and Tombe Clans” as defendants. The statement of claim endorsed on the writ in WS No. 136 of 2011 pleaded that Chief Tagili and his co-plaintiffs in WS No. 1185 of 1996 had engaged Ilila Development Corporation Ltd to be their sole consultant “to have the carriage in the conduct of their class action case in the name of the affected villagers and their clans within the Tari area whose properties have been destroyed in the police raid as alleged in the Claim against Police and State (Malingi Tagili & Ors -vs- the State, WS No. 1185/96 and Judgment Settled”.
  8. The statement of claim in WS No. 136 of 2011 pleaded that the plaintiff company had provided consultancy services for the claimants in WS No. 1185 of 1996 and had pursued the case for them to entry of default judgment and assessment of damages, followed by settlement of the case when claims totalling K3,854,995.15 were paid by the State to all claimants “through the assistance of lawyers the Plaintiff engaged to have carriage in the conduct of the action claim”. The statement of claim in WS No. 136 of 2011 did not of course disclose that Mr Kamiali’s claim against the State awarded in the sum of K1,601,330, which I have found was fraudulent, comprised 42% of the State’s total pay-out of special damages amounting to K3,854,995.15.
  9. The statement of claim in WS No. 136 of 2011 then went on to plead at para. 4 that the plaintiff company’s fees and costs for having provided consultancy services in the class action headed by Chief Tagili in WS No. 1185 of 1996 over a 12-year period, to the point where all claimants had been paid out their awards, came to a total of K24,539,900 “including value added tax”. The statement of claim then concluded by pleading that as the defendants were not themselves in a position to pay the company anything towards consultancy fees as the defendants had spent all their award monies, the company’s consultancy fees should be “paid out from the interest component in the proceedings of WS No. 1185/96 in the sum of Seven Hundred Thousand Kina (K700,000) now parked in the trust account of Wagambie Lawyers”. In its prayer for relief in WS No. 136 of 2011, the company claimed judgment for K700,000 against the defendants in “final settlement” of its consultancy claim.
  10. In support of his purported company’s claim in WS No. 136 of 2011, on 11 November 2011 Mr Kamiali filed an affidavit[31] which attempted to justify the company’s consultancy services. Annexure “D” to that affidavit sworn by Mr Kamiali is a document setting out the company’s “costings”. I observe that these costings, which come to a total of K24,539,900, inclusive of what is erroneously referred to as VAT instead of GST, are based on hourly rates which are variously claimed at K1,000 per hour, K1,500 per hour and K2,000 per hour. Extraordinary amounts of time are claimed in the company’s “costings” document based on its varying hourly rates. For example there is a claim for 2,676 hours of consultancy services at K2,000 per hour said to have been performed by the company over a period from 31 July 2002 to 5 October 2002 to “negotiate with lawyers, Attorney General’s Office, NEC for out of court settlement”. This and many, if not all, of the other so-called items set out in Mr Kamiali’s “costings” document for his company are, I consider, grossly inflated and patently absurd.
  11. Significantly, there is no evidence at all by Mr Kamiali in his affidavit evidence in WS No. 136 of 2011, and now in this present WS No. 1146 of 2011, to establish that Chief Tagili had ever agreed on behalf of the class of persons he represented in WS No. 1185 of 1996 to pay the company’s consultancy services at the rates claimed in the “costings” document, or indeed on any other basis at all. Nor is there any evidence that Mr Kamiali’s trade store business or his company was ever registered by the Internal Revenue Commission under the Goods and Services Tax Act 2003.
  12. There is no evidence in this present proceeding WS No. 1416 of 2011 that any attempt was ever made by Mr Kamiali subsequent to the dismissal by Justice Murray of his non-existent company’s claim in WS No. 136 of 2011 on 31 July 2014 to render to Chief Tagili and his co-plaintiffs in WS No. 1185 of 1996 any invoices, bills or accounts in respect of Mr Kamiali’s alleged consultancy services in connection with WS No. 1185 of 1996, whether those services were performed by himself or by his company.
  13. Prior to trial in WS No. 1416 of 2011 Mr Kamiali gave no opportunity for the plaintiffs to agree to the quantum of his consultancy services or to challenge any aspect of Mr Kamiali’s claim for the value of his alleged consultancy services by the rendering of invoices or bills. All that can be deduced from Mr Kamiali’s own evidence is that when he instituted his non-existent company’s claim in WS No. 136 of 2011, he wanted to access whatever monies were left in the trust account of M.S.Wagambie Lawyers towards payment of what he contended he and/or his company, under whatever name he used for his company, were owed for his uninvoiced but allegedly outstanding consultancy services in connection with WS No. 1185 of 1996.
  14. On 7 March 2012 Mr Wagambie filed in this proceeding WS No. 1416 of 2011 an affidavit sworn by him on 6 March 2012[32] which deposes as to monies received into and then paid out from his law firm’s trust account between July 2009 and February 2011 in connection with monies paid by the State in settlement of its obligations under the judgment awarded by Justice Hinchliffe in WS No. 1185 of 1996. The bulk of the subject monies received into the trust account of Wagambie Lawyers for the plaintiffs relates to agreed costs and post-judgment interest owed by the State. There is however an incidental amount of K30,955 which was received into the trust account of M.S.Wagambie Lawyers from the trust account of Paulus M. Dowa Lawyers which has not been properly explained in Mr Wagambie’s affidavit filed on 7 March 2012.
  15. In para. 2 of his affidavit filed on 7 March 2012, Mr Wagambie deposes that he had been instructed by Mr Kamiali “to act on behalf of the 56 plaintiffs in WS No. 1185 of 1996 to pursue the outstanding taxed costs and interest in the sum of K1,317.00”. I am unsure as to the significance of the figure of K1,317.00. Perhaps it is a typographical error for some calculation of post-judgment interest at that juncture. Be that as it may, Mr Wagambie’s affidavit is silent as to the fact that he was not only instructed to act for Mr Kamiali as consultant to the 57, not 56, other plaintiffs in WS No. 1185 of 1996 but also for Mr Kamiali personally in his capacity as the 58th and highest paid plaintiff in WS No. 1185 of 1996.
  16. Mr Wagambie deposes in paragraph 3 of his affidavit as follows:

“3. Paulus Dowa Lawyers forwarded a cheque in the sum of K30,955.18 being balance of the monies kept in their trust under cover of their letter dated 8 July 2009. Annexed hereto and marked with the letter “A” is a true copy of the cheque.”


  1. I observe that Mr Wagambie did not annex to his affidavit a copy of the letter from Paulus M. Dowa Lawyers dated 8 July 2009 which had enclosed that law firm’s trust account cheque for K30,955.18 and which I infer may have given some explanation as to what those funds represented. Nor was any evidence adduced as trial as to the trust account ledger for monies held in the trust account of Paulus M. Dowa Lawyers before the amount of K30,955.18 was transferred to the trust account of M.S.Wagambie Lawyers on 8 July 2009. There is therefore no way that the Court can know what that “balance of monies” for K30,955.18 actually represented or how that balance was accounted for by Paulus M. Dowa Lawyers. I can only infer that this amount was excess to monies previously paid out from the trust account of Paulus M. Dowa Lawyers in connection with funds which that law firm had received from the State and which had been owing for the global award of damages made by Justice Hinchliffe in favour of Chief Tagili and his co-plaintiffs in WS No. 1185 of 1996, including the damages paid out to Mr Kamiali for his own fraudulent claim against the State, but which payment on account of judgment monies had not at that stage included the costs and post-judgment interest awarded as part of the judgment.
  2. Mr Wagambie states in paras. 4 and 5 of his affidavit to the effect that soon after receiving the cheque for K30,955.18 dated 8 July 2009 from Paulus M Dowa Lawyers, on 28 September 2009 he filed a notice of change of lawyers for the plaintiffs in WS No. 1185 of 1996 and then followed up with the Office of the Solicitor-General to pursue outstanding costs and post-judgment interest owed by the State in that proceeding.
  3. By letter dated 12 October 2009 the Solicitor-General notified M.S.Wagambie Lawyers that senior counsel for the State, Mr Graham Ellis, had calculated the combined amount payable by the State to the plaintiffs in WS No. 1185 of 1996 in respect of costs and interest at K2,330,307.90.
  4. Mr Wagambie replied by letter dated 20 October 2009 and advised that he had been instructed to accept the sum of K2,330,307.90 in settlement of the State’s obligation to pay outstanding interest and costs. Mr Wagambie did not state in his letter of reply who he had received instructions from to accept the State’s calculation of K2,330,307.90 but I infer from para. 2 of Mr Wagambie’s affidavit that those instructions came direct from Mr Kamiali as consultant or agent for the plaintiffs rather than from any of the other plaintiffs in WS No. 1185 of 1996.
  5. Mr Wagambie then accounts in his affidavit for what happened to the “balance of funds” of K30,955.18 which were received into his law firm’s trust account from the proceeds of the cheque dated 8 July 2009 drawn on the trust account of Paulus M. Dowa Lawyers. Mr Wagambie states at paras. 6 and 7 of his affidavit as follows:

“6. In respect of the sum of K30,955.18 funds transferred from Paulus Dowa Lawyers, Mr Mogola Kamiali instructed me to pay him for his own administration costs which I made the following payments:


NOS
AMOUNT
DATE
RECIPIENT
BALANCE
1.
K3,000.00 paid on
29/10/09
Mogola Kamiali
K27,455.18
2.
K7,100.00 paid on
26/05/11
Mogola Kamiali
K17,355.18
3.
K4,900.00 paid on
20/06/11
Mogola Kamiali
K12,455.18
4.
K12,200.00 paid on
27/06/11
Mogola Kamiali
K11,255.18
5.
K11,255.18 paid on
07/07/11
Mogola Kamiali
K NIL

  1. In respect of the funds being K30,955.18, I confirm from my records that upon written request from Mr Mogola Kamiali, all were paid out to him according to the breakup above.”

[underlining added]


  1. I note that there is an accounting error in Mr Wagambie’s above table. There is a discrepancy of K7,500, which can be demonstrated as shown in the table below.
NOS
AMOUNT
DATE
RECIPIENT
BALANCE

Funds received from trust account of Paulus M. Dowa Lawyers
K30,955.18
1.
K3,000.00 paid on
29/10/09
Mogola Kamiali
K27,955.18
2.
K7,100.00 paid on
26/05/11
Mogola Kamiali
K20,855.18
3.
K4,900.00 paid on
20/06/11
Mogola Kamiali
K15,955.18
4.
K12,200.00 paid on
27/06/11
Mogola Kamiali
K 3755.18
Sub-total as at 27/06/11
K27,200.00


5.
K11,255.18 paid on
07/07/11
Mogola Kamiali
- K7,500.00
Total paid as at 07/07/11
K38,455.18

  1. If Mr Wagambie’s figures are correct for payments 1 to 5 shown in his table, and there is no reason given by Mr Wagambie’s in his evidence to assume otherwise, then an amount of K7,500 which was included in the trust account cheque from M.S.Wagambie Lawyers for K11,255.18 dated 7 July 2011 which was paid to Mr Kamiali must have come from some source in the trust account of M.S.Wagambie Lawyers other than the amount of K30,955.18 which had originally come from Paulus M. Dowa Lawyers.
  2. I accordingly find as a fact that Mr Kamiali caused himself to be paid from the trust account of M.S.Wagambie Lawyers an amount of K38,455.18, not K30,955.18, by reason of the 5 payments he instructed Mr Wagambie to make to him between 29 October 2009 and 7 July 2011.
  3. The plaintiffs deny having ever been informed in advance by Mr Kamiali or by M.S.Wagambie Lawyers that any payments from funds held for the plaintiffs in the trust account of that law firm were to be made to Mr Kamiali. I accept the truth of that contention by the plaintiffs.
  4. Mr Wagambie’s affidavit indicates that quite apart from monies amounting to K30,955.18 received from the trust account of Paulus M. Dowa Lawyers, a series of much larger payments totalling K2,330,307.90 were made by the State to the trust account of M.S.Wagambie Lawyers for the benefit of the plaintiffs between June 2011 and August 2011. This amount of K2,330,307.90 comprised the following components of the judgment in WS No. 1185 of 1996, payment for which by the State had still been outstanding as at mid-2011:

Total: K 2,330,307.90

  1. There is no evidence to explain how the plaintiffs’ costs in WS No. 1185 of 1996 came to be assessed by senior counsel Mr Graham Ellis for the State at K1,630,307.90, nor how Mr Ellis had arrived at an assessment of post-judgment interest of K700,000, nor why Mr Wagambie had indicated in his reply to the State Solicitor dated 20 October 2009 that he had been instructed to accept without question the combined amount of those two components at K2,330,307.90. I surmise that earlier payments of post-judgment interest could well have been made by the State via the State Solicitor’s Office to the trust accounts of Kuwimb Lawyers and/or Paulus M. Dowa Lawyers but this was not disclosed in evidence during the trial in WS No. 1416 of 2011.
  2. The Department of Finance paid the abovementioned amount of costs of K1,630,307.90 which were owed by the State in WS No. 1185 of 1996 in three tranches. Mr Wagambie deposes in para. 8 of his affidavit that the following three payments were received into his law firm’s trust account from the office of the Solicitor-General and were held “to be disbursed on instructions”:
Nos.
Date
Amount Received
1.
25/02/2011
K 330,307.90
2.
02/05/2011
K 500,000.00
3.
17/06/2011
K 800,000.00
TOTAL
K1,630,307.90

  1. In para. 9 of his affidavit, Mr Wagambie says that he paid out the costs of K1,630,307.90 which had been received into his law firm’s trust account from the State as follows:

in WS No. 1185 of 1996 (no details provided): K 1,030,307.90

Total: K 1,630,307.90


  1. No explanation was given by Mr Wagambie in his affidavit as to the identities of the individuals who received the benefit of the above amount of K1,030,307.90 paid out from the trust account of his law firm, nor is there any indication in Mr Wagambie’s affidavit as to the individual amounts which those payees received. All that Mr Wagambie says in his affidavit in this regard is his unacceptably vague description of the payees as having been “the plaintiffs and service providers”. Mr Kamiali undoubtedly considered himself to have been the primary “service provider” to his 57 co-plaintiffs in WS No. 1185 of 1996.
  2. In para. 17 of his affidavit, Mr Wagambie states that the amount of costs of K1,630,307.90 he had received into his firm’s trust account from the State was “paid out to clients based on both written and verbal instructions”. No attempt was made by Mr Wagambie in his affidavit to annex copies of the written instructions which he says he received for disbursement of the costs of K1,630,307.90.
  3. No explanation was given by Mr Wagambie in his affidavit as to the reason why K600,000, being the balance of the costs monies after payment out of K1,030,307.90 to unidentified persons, was paid to Mr Kamiali. This is what Mr Wagambie says in para. 10 of his affidavit in respect of his disbursement of trust account monies amounting to K611,255.18 to Mr Kamiali:

“10. I was initially instructed to hold the sum of K60,000.00 for John Kuwimb [of Kuwimb Lawyers] for Administration costs. However on 7th July 2011, I was instructed by Mr Mogola Kamiali to pay him the sum of K600,000.00 plus the sum of K11,255.18 being balance carried over from Paulus Dowa Lawyers a total of K611,255.18 which I obliged and raised a cheque in the sum of K611,255.18 in favour of Mogola Kamiali and wrote a letter to the Bank as per his instructions to give clearance for the payment of the sum of K611,255.18.”

  1. Annexed to Mr Wagambie’s affidavit and marked “D” is a copy of a letter dated 7 July 2011 which Mr Wagambie wrote to Mr John Kubar, the manager of the Douglas Street, Port Moresby branch of the Bank of South Pacific Ltd. Reproduced hereunder is the text of that letter:

“Dear Sir,

RE: MALINGI TAGILI & ORS -v- THE STATE – WS No. 1185 of 1996

We refer to the above and advise that we act for M MOGOLA KAMILAI [sic], who is a Plaintiff in the above matter. We have paid our clients from the funds held in our trust account which funds were paid by the State for interest and costs in respect of the above matter.

Upon instructions we now issue our Trust Account cheque in the sum of K611,255.18 in the name of Mr Mogola Kamiali to be deposited into his account also held at BSP Douglas Street Account Number 1000904417.

Please assist him accordingly.

Please contact the undersigned with any queries.

Yours faithfully

M.S. WAGAMBIE LAWYERS

[signed]
MICHAEL WAGAMBIE

Principal” [underlining added]

  1. As to the outstanding interest owed by the State in connection with the judgment in WS No. 1185 of 1996, agreed by Mr Wagambie for the plaintiffs at K700,000, this is what Mr Wagambie says at para. 12 of his affidavit:

“12. In respect of interest component, I received a cheque of K700,000.0 from the Solicitor General on behalf of the Plaintiffs on second week of August 2011 and deposited the funds in Trust awaiting instructions.”

  1. Mr Wagambie continues at paras. 12 and 13 of his affidavit to say that from the interest monies of K700,000 paid by the State to the trust account of his law firm in mid-August 2011, on 23 September 2011 Mr Wagambie paid Mr Mangobe an amount of K1,000 because he was “instructed” by Mr Mangobe to do so; and on 21 February 2012 Mr Wagambie issued a trust account cheque for K2,432 to pay for return air tickets for Mr Mangobe and Mr Agu to travel from Mt Hagen to Port Moresby, a trip which Mr Mangobe and Mr Agu have explained in their affidavit material was occasioned when they found out that the State had made large payments of costs and accrued interest to the trust account of M.S.Wagambie Lawyers and that much of those monies, unaccounted for to the remaining 57 plaintiffs by M.S.Wagambie Lawyers and Mr Kamiali, had been accessed by Mr Kamiali.
  2. Mr Wagambie states in para. 13 of his affidavit filed on 7 March 2012 to the effect that as at that date his law firm’s trust account held an amount of K696,568 “on behalf of all the Plaintiffs, funds representing interest component”. This amount of K696,568 comprised the amount of K700,000 on account of post-judgment interest received into the trust account of Wagambie Lawyers in mid-August 2011 less the amount of K1,000 released by Mr Wagambie to Mr Mangobe on 23 August 2011 and less the amount of K2,432 released by Mr Wagambie on 21 February 2012 to pay for airfares for Mr Mangobe and Mr Agu. As at the date of Mr Wagambie’s affidavit on 7 March 2012, this then left a balance of K696,568 held for the plaintiffs in WS No. 1185 of 1996 in the trust account of M.S.Wagambie Lawyers.
  3. Mr Wagambie concludes his affidavit of 7 March 2012 by stating that he was prepared to pay the sum of K696,568 into Court, if ordered to do so.
  4. After many subsequent adjournments and interlocutory hearings, on 6 September 2018 Justice Kandakasi ordered that this proceeding WS No. 1416 of 2011 be transferred to me so that I could issue directions for the conduct of the trial.
  5. As already observed by me earlier in this decision, on 18 December 2018 I ordered Mr Wagambie to forthwith pay the sum of K696,568 from M.S.Wagambie Lawyers trust account into the National Court Registrar’s trust account, which monies formed part of the final payments made by the State for the judgment monies owed by the State in WS No. 1185 of 1996. The order directed that these monies were to be held in the National Court Registrar’s trust account pending the final determination of this proceeding and any related proceedings.
  6. Mr Wagambie complied with the order of 18 December 2018 with alacrity by payment the same day from his law firm’s trust account of the sum of K696,568 into the National Court Registrar’s trust account no. 1000583618 with the Waigani branch of the Bank of South Pacific Ltd. The sum of K696,568 continues to be held in the National Court Registrar’s trust account.
  7. By way of summary of the evidence of Mr Wagambie, I find that the total of the monies which Mr Kamiali instructed M.S.Wagambie Lawyers to pay to him from the balance of the judgment monies, accrued interest and costs paid by the State and received into the trust account of M.S.Wagambie Lawyers for the benefit of the plaintiffs in WS No. 1185 of 1996 was K638,455.18, comprised as follows:
Balance of funds transferred from trust account of Paulus M. Dowa Lawyers to trust account of M.S.Wagambie Lawyers and paid to Mr Kamiali between 29 October 2009 and 7 July 2011: K30,955.18 plus discrepancy of K7,500.00 being additional amount paid from trust account of M.S.Wagambie Lawyers to Mr Kamiali in that period and unexplained by Mr Wagambie in his affidavit:
K 38,455.18
M.S.Wagambie Lawyers trust account cheque no. 076751 dated 7 July 2011 – payee “Mogola Kamiali”:[33] K611,255.18 less K11,255.18 included in above amount of K38,455.18:
K 600,000.00
Total:
K 638,455.18

  1. Having made this finding, I am at a loss to understand why respective counsel for the Group 1 Plaintiffs and the Group 2 Plaintiffs in this suit failed to obtain through the discovery process, or by procedural orders or summonses, production at trial in June 2020 of the trust account ledgers for all monies held for the plaintiffs in the trust accounts of the various legal firms who received and disbursed those monies between date of Justice Hinchliffe’s judgment in WS No. 1185 of 1996 on 24 February 2012 and the date of my order on 18 December 2018 to Mr Wagambie to pay the balance of monies of K696,568 into the National Court Registrar’s trust account. The evidence adduced at trial shows that the law firms of Kuwimb Lawyers, Paulus M. Dowa Lawyers, possibly Koneyala Lawyers, and finally M.S.Wagambie Lawyers all held monies received from the State for the plaintiffs in WS No. 1185 of 1996 at various times. If those trust account ledgers had been produced in evidence at trial and proper explanations given for ledger entries, I would have been in a much better position to assess the totality of the monies which Mr Kamiali may have managed over the years to access from those trust accounts. Absent that evidence, the best that I can do is to find as a fact that the minimum amount of the plaintiffs’ monies which Mr Kamiali caused to be paid to himself, over and above the extraordinary amount of K1,601,330 awarded to him as a result of Justice Hinchliffe’s judgment, is the amount of K638,455.28 referred to in the preceding paragraph of this decision.
  2. From a consideration of the evidence, I find that there was no denial by Mr Kamiali that he received the following payments totalling K638,455.18 which he instructed Mr Wagambie to make to him, which total accords with my own assessment of what Mr Kamiali received from the trust account of M.S.Wagambie Lawyers:

2009 to 27 June 2011 totalling: K 27,200.00

K 638,455.18


  1. Mr Wagambie confirmed in his affidavit that the trust account cheques funded from the sum of K30,955.18 received into the trust account of his law firm from Paulus M. Dowa Lawyers were paid to Mr Kamiali “for his own administration costs”. Mr Wagambie also confirmed in his affidavit that instructions for the trust account cheque for K611,255.18 which was paid to Mr Kamiali on 6 July 2011 came from Mr Kamiali himself. Those instructions did not come from any of the 57 other plaintiffs in WS No. 1185 of 1996 who were entitled to require Mr Kamiali and the various firms of lawyers he had consulted over the years culminating in M.S.Wagambie Lawyers to account for all monies paid out by State after the State had previously settled payment of the actual awards of damages inclusive of pre-judgment interest to those 57 plaintiffs. Those additional monies paid out by the State and for which I find Mr Kamiali was accountable to his 57 co-plaintiffs included monies on account of the costs awarded by Justice Hinchliffe in WS No. 1185 of 1996 agreed at K1,630,307.90 and monies on account of post-judgment interest agreed at K700,000, which sums were paid into the trust account of M.S.Wagambie Lawyers.
  2. I find that Mr Kamiali wrongfully took it upon himself to assert that he was entitled to demand that M.S.Wagambie Lawyers release to him trust account funds amounting to a minimum of K638,455.18 which almost exclusively belonged to his 57 co-plaintiffs. He brought pressure to bear on Mr Wagambie to do so. Mr Kamiali did this in circumstances when he well knew that he had not issued any invoices or bills or had otherwise accounted for his alleged consultancy services to the other 57 plaintiffs in WS No. 1185 of 1996 apart from the scandalous and wholly unsubstantiated claim for K24,539,900 which he had made for his non-existent company Ilila Development Corporation Limited against the plaintiffs in WS No. 136 of 2011, which case was dismissed by Justice Murray on 31 July 2014.
  3. Towards the conclusion of Mr Kamiali’s oral evidence given by him under oath at the trial in WS 1416 of 2011 and during re-examination by Mr Amaiu, I expressed my concern to all three counsel, Mr Amaiu, Mr Kari and Mr Makeu, that there was no evidence as to why Mr Kamiali was claiming he was entitled to access trust account funds to pay his alleged outstanding consultancy fees and what the amount of his claim for consultancy fees was in that regard. Reproduced below are relevant extracts from pp. 162 and 163 of the transcript of the proceedings which took place in the trial before me on 23 June 2020:

“HIS HONOUR: What I am struggling with is, where do I find in Mr Kamiali’s evidence in the affidavit material a quantification of his claim [to consultancy fees] and how much does he say he is entitled to? I cannot see that anywhere.

MR AMAIU: Yes, that is right. Your Honour, what the witness is basically trying to assist the court to know is that this figure, the ----

HIS HONOUR: It seems to be just plucked out of the air. Has there been any evidence of quantification, hours spent?

MR AMAIU: No, that is only the ---

HIS HONOUR: An hourly rate, a percentage?

MR MAKEU: There is no evidence of this.

MR AMAIU: Yes, actually, there is no evidence but he would exercise his own – what he ---

HIS HONOUR: Well, how am I as a Court, expected to be able to quantify what he is entitled to, if [indeed] he is entitled to anything? How am I expected to quantify if there is no evidence on this?

MR AMAIU: Well, your Honour, that is your discretion to find out ---

HIS HONOUR: No, no. I need evidence.

MR AMAIU: Yes.

HIS HONOUR: And I am asking for the evidence right now, before your case closes.

MR AMAIU: As I have said, your Honour, the evidence is what is already filed with the court. And in relation to ---

HIS HONOUR: If it is already filed, we do not need to perpetuate this re-examination any further. I will review whatever the evidence is in the affidavit material. But I have made [the] point as clearly as I possibly can. You see, if any consultant is making a claim, he has to base it on hours or a percentage of the claim that was made. There must be some formula. Even if not agreed, there must be some formula that he was using to establish what his claim is and is he prepared to discount that by X amount. I simply do not know.”

  1. Having now reviewed Mr Kamiali’s affidavit material in this proceeding, as urged by Mr Amaiu, I find that there is no affidavit evidence at all of Mr Kamiali having rendered proper invoices or in fact any invoices or bills at all to his other 57 co-plaintiffs in WS No. 1185 of 1996 for consultancy services or “administration costs” alleged to have been rendered by Mr Kamiali or his company which would have justified him accessing monies amounting to K638,455.18 held in the trust account of M.S.Wagambie Lawyers
  2. If Mr Kamiali had a genuine claim for consultancy fees, or balance of consultancy fees, which he contended he was owed by his 57 co-plaintiffs in WS No. 1185 of 1996 when he “instructed” Mr Wagambie to release monies totalling K638,455.18 to him, why did he not file a cross-claim in this proceeding WS No. 1416 of 2011 seeking a declaration and other orders as to the quantum and validity of his consultancy fees for the Court to determine? Even if Mr Kamiali’s company’s contractual arrangements which Mr Kamiali said were entered into with Chief Tagili and Pastor Hapokaya on 30 August 1995 to provide consultancy services to the plaintiffs in WS No. 1185 of 1996, or any subsequent similar consultancy arrangements, were found by this Court to have been flawed or to have failed, which would have been highly likely, Mr Kamiali would still have had a cross-claim against the plaintiffs for consultancy fees which, if genuine, he would have been able to claim on a quantum meruit basis for services actually rendered. No such cross-claim was filed by Mr Kamiali.
  3. Furthermore, when Mr Kamiali insisted that M.S.Wagambie Lawyers pay him trust account monies of a minimum of K638,455.18, Mr Kamiali well knew that he had already massively profited from his own fraudulent claim against the State in WS No. 1185 of 1996 to the extent of the damages awarded to him of K1,601,320 and paid out to him well before 2011. Mr Kamiali similarly also well knew at that time that he had previously already received his share of pre-judgment interest thereon. It seems that Mr Kamiali was determined to keep his co-plaintiffs in WS No. 1185 of 1996 in the dark as long as possible about the fact that additional monies comprising post-judgment interest and costs totalling K2,330,307.90 had flowed from the State into the trust account of M.S.Wagambie Lawyers so that he, Mr Kamiali, could apply as much of the balance of those monies as he could towards his “administration costs”, as Mr Wagambie so euphemistically referred to them in his affidavit.
  4. It has not been possible in the absence of production in evidence of the trust account ledgers for the plaintiffs for all of the law firms who received State monies flowing from Justice Hinchliffe’s judgment in WS No. 1185 of 1996 to ascertain just what further monies beyond the above sum of K638,455.18 Mr Kamiali may have had paid to himself and to which he was not entitled for his unaccounted for so-called “administration costs”.
  5. However I am satisfied well beyond the balance of probabilities on the evidence that was presented at trial in WS No. 1416 of 2011 that Mr Kamiali in effect helped himself to the sum of K638,455.18 of the plaintiffs’ monies when he had no legitimate reason or right to do so. Mr Kamiali failed to adduce any evidence at trial of entitlement on his part to any of those monies. Mr Kamiali falsely represented to Mr Wagambie that he was entitled to those monies for his “administration costs” or his alleged consultancy fees or for some other reason which was not disclosed by Mr Kamiali in circumstances when Mr Kamiali knew he had not accounted to the plaintiffs at all for his entitlement to any of those monies.
  6. I surmise that Mr Kamiali may have extracted similar monies from the trust accounts of the law firms he had been “instructing” prior to engaging the services of M.S.Wagambie Lawyers in July 2009, which may account for the plaintiffs allegation in their amended statement of claim that Mr Kamiali had paid himself an overall amount of K1,604,650 on account of alleged consultancy fees. However that proposition is conjecture and it cannot be established on the evidence presented at trial. The evidence does however convincingly support the finding that Mr Kamiali defrauded the plaintiffs of a minimum amount of K638,455.18.
  7. In the result, I find that the plaintiffs have proved with a high degree of probability their cause of action in fraud against Mr Kamiali. I find that Mr Kamiali falsely represented to Mr Wagambie that he was entitled to monies totalling K638,455.18 in the trust account of M.S.Wagambie Lawyers and that he thereby obtained an unlawful material advantage over his co-plaintiffs in WS No. 1185 of 1996. Mr Kamiali accessed trust account monies to which he knew or ought to have known he was not entitled at that stage in the absence of his having invoiced his co-plaintiffs in WS No. 1185 of 1996 for his alleged consultancy services and in the absence of his having otherwise accounted in advance to the plaintiffs in this proceeding WS No. 1416 of 2011 for the disposition of those monies. Mr Kamiali did this knowingly or without belief in the truth of his representations to Mr Wagambie or he did this recklessly and carelessly of the truth of his representations to Mr Wagambie. I am satisfied that this constitutes fraud irrespective of whichever of the three limbs of actionable fraud as propounded by Lord Herschell’s dictum in Derry v Peek Mr Kamiali’s representations come within, which dictum has been repeatedly approved in the PNG cases I have cited in that regard.
  8. As to the plaintiff’s cause of action against Mr Kamiali based on unjust enrichment, I now address the three elements which the plaintiffs must prove according to the authority of Korogruen v Wagen (supra):

(1) Was Mr Kamiali enriched by the receipt of a benefit totalling K638,455.18?

Yes. There is incontrovertible proof of Mr Kamiali’s receipt of the benefit of monies totalling K638,455.18 from the trust account of M.S.Wagambie Lawyers.

(2) Has Mr Kamiali been enriched at the expense of his co-plaintiffs in WS No. 1185 of 1996 and the plaintiffs in WS No. 1416 of 2011?

Yes. There was no denial by Mr Kamiali that he received trust account monies totalling K635,455.18. He thereby enriched himself in circumstances where he had not rendered invoices or had otherwise not accounted for his alleged consultancy services or his “administration costs” or other expenses to his co-plaintiffs in WS No. 1185 of 1996.

(3) Would it be unjust to allow Mr Kamiali to retain that benefit of K638,455.18?

Yes. The evidence shows that it would be unjust to allow Mr Kamiali, or rather his Estate, to retain the benefit of K638,455.18 which he fraudulently obtained from the trust account of M.S.Wagambie Lawyers.


  1. I am satisfied that the plaintiffs have proved their case against Mr Kamiali on the balance of probabilities to the degree required that is commensurate with the allegations made by the plaintiffs against Mr Kamiali. Judgment in the sum of K638,455.18 by way of special damages will be entered for the plaintiffs in this suit, to be accounted for to all 57 of Mr Kamiali’s co-plaintiffs in WS No. 1185 of 1996 or their personal representatives pro rata to those co-plaintiffs’ entitlements under the judgment awarded by Justice Hinchliffe.
  2. I observe that the plaintiffs in their amended statement of claim in WS 1416 of 2011 were, in addition to special damages, also specifically seeking general damages against the second defendant, that is to say against what is now known to be the non-existent company known as “Ilaila Development Corporation Limited” and cited as the second defendant in this proceeding. As there was no evidence adduced of a company owned by Mr Kamiali having ever been incorporated under that name, no general damages can be awarded. I have already ruled in this decision that the non-existent company styled “Ilaila Development Corporation Limited” is to be removed as second defendant to this proceeding. In the circumstances, as the plaintiffs have made no claim for an award of general damages to be made against Mr Kamiali personally, no award of general damages against the Estate of the late Mr Kamiali will be made.

INTEREST ON SPECIAL DAMAGES


  1. The plaintiffs have sought in the prayer for relief in their amended statement of claim in WS No. 1416 of 2011 that interest on any damages be awarded at the rate of “22% from the day the monies were received by the Defendants from the Department of Finance pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act.”
  2. No evidence has been led by the plaintiffs to indicate why a commercial interest rate of 22% per annum should be applied to any damages awarded in this suit. The conventional rate of interest which this Court usually applies to claims of this nature, where the parties have not contractually agreed to an express rate of interest to be applied to any damages awarded by a court of competent jurisdiction, is 8% per annum.
  3. However, I am concerned that the Estate of the late Mr Kamiali should not be compelled to pay pre- or post-judgment interest on damages at the usual rate of 8% per annum. The Estate will be burdened with a judgment debt inclusive of pre-judgment interest as well as post-judgment interest that would otherwise have had to be met by Mr Kamiali had he survived this litigation. I consider that the Estate of the late Mr Kamiali is not in the same position as Mr Kamiali would have been if he were now alive to make arrangements by himself or with his bankers to pay the monies that will now fall due under the judgment of this Court in this proceeding.
  4. I note that Justice Hinchliffe in his decision in WS No. 1185 of 1996 delivered on 24 February 2006, when addressing the issue of what interest rate should be awarded in respect of special damages, was urged by counsel for the plaintiffs to award an interest rate of 8% per annum. This was because 8% per annum was at that juncture the statutory maximum for any interest which the Court could award under s.1(2) of the Judicial Proceedings (Interest on Debts and Damages) Act Ch. 52 in respect of proceedings taken against the State for the recovery of a debt or damages. His Honour responded:

“It is clear to me that interest awarded by the Court where the State is liable cannot be any more than 8% yearly. To my mind the figure of 8% is more appropriate in large company commercial matters where big business is involved. That is not the case here and when one considers the dismal interest paid by banks on savings and interest bearing deposits and the like [a lower rate of interest is more appropriate for the present case].”

  1. It is noteworthy that subsequent to delivery of his Honour’s decision in WS No. 1185 of 1996, the Act was repealed and replaced by the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Section 4 of the current Act provides that where proceedings are taken against the State, the rate of interest which can be awarded “shall not exceed 2% yearly”.
  2. This present proceeding is not a claim against the State, but I echo Justice Hinchliffe’s sentiments in WS No. 1185 of 1996 in that the “dismal interest paid by banks on savings and interest-bearing deposits and the like” is just as true today as it was back in 2012.
  3. The Court has a wide discretion when awarding interest under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Furthermore, I am mindful that it is the overriding duty of this Court under s.158(2) of the Constitution to give paramount consideration to the dispensation of justice. In recognition of that Constitutional mandate and the statutory discretion invested in this Court under the Act, I consider it only fair and just in all of the complex circumstances of this case that pre-judgment interest on damages, payable by the Estate of the late Mr Kamiali in this proceeding, be awarded at the rate of 4% per annum, a rate which is one-half that of the conventional rate of 8% per annum for claims for damages for proceedings which do not involve the State.
  4. Pre-judgment interest on special damages of K638,455.18 will be calculated at the rate of 4% per annum from date of accrual of the plaintiffs’ causes of action on 7 July 2011 to the date of this decision, 13 April 2022, a period of 3,933 days, by applying the formula D x IR x (N/365) = I, where: D is the amount of special damages, IR is the percentage rate of interest per annum, N is the number of days expressed as a percentage of years and I is the amount of interest. Pre-judgment interest is therefore K275,182.93 computed as follows:

K638,455.18 x 4% x (3,933/365 days) = K275,182.93.

  1. I have identified 7 July 2011 as the date for accrual of the plaintiffs’ causes of action in this proceeding as that was the date on which Mr Kamiali wrongfully obtained the cheque for K611,244.18 drawn on the trust account of M.S.Wagambie Lawyers. This was the last and largest of the cheques issued to him “on instructions” given by him to Mr Wagambie.
  2. The total of the judgment inclusive of pre-judgment interest which is to be awarded to the plaintiffs is K913,638.11 comprising special damages of K638,455.18 and pre-judgment interest of K275,182.93.
  3. Schedule “A” to this decision contains the calculation of the shares to which each of the entitled 57 plaintiffs in WS No. 1185 of 1996 is to receive from today’s judgment of K913,638.11. Each of the 57 shares is expressed in Column 4 of Schedule “A” as a percentage of entitlement to participate in the special damages of K2,253,675.15 which was the aggregated amount awarded to them by Justice Hinchliffe in WS No. 1185 of 1996. This amount of K2,253,675.15 excludes Mr Kamiali’s own award of K1,601,320 which he fraudulently obtained in that suit.
  4. Column 5 of Schedule “A” to this decision sets out the quantum of the share to which each of the entitled 57 plaintiffs is to receive from the judgment of K913,638 now awarded in this proceeding WS No. 1416 of 2011.
  5. I consider in the exercise of the Court’s discretion that post-judgment interest payable by the Estate of the late Mr Kamiali should be one-half the rate awarded for pre-judgment interest. Post-judgment interest will accrue at the rate of 2.00% per annum on so much of the total judgment of K913,638.11 as remains unpaid from time to time until the whole of the judgment has been satisfied.

COSTS

  1. In relation to the costs of this proceeding, the plaintiffs have been successful in their claim. I see no reason to depart from the usual order for costs in litigation such as this. Subject to any existing interim orders made as to costs in this proceeding, the party/party costs of the Group 1 Plaintiffs and of the Group 2 Plaintiffs of and incidental to this proceeding are to be paid by the Estate of the late Mokola Kamiali, such party/party costs to be taxed if not agreed.

WHAT OTHER ORDERS SHOULD THE COURT MAKE?

  1. There are a number of orders consequential on the findings of this Court and the primary judgment on special damages, interest and costs in this proceeding which the Court needs to make.
  2. In view of the death of Mr Kamiali on 9 November 2021, the name of the first defendant cited in the writ in this proceeding WS No. 1416 of 2011 as “Mokola Kamiali”, and later cited as “Mogola Kamiali”, needs to be changed to refer to his deceased Estate.
  3. Order 5 r 10 NCR provides:

10. Death, transmission, etc

(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.

(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings.

(3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.

[underlining added]

  1. There will accordingly be an order made in this proceeding pursuant to O 5 r 10 NCR that the name of the first defendant be changed and substituted by the name “Estate of the late Mokola Kamiali by his personal representative Emmanuel Kamiali”.
  2. It must be clearly understood, in view of my opening comments in this decision, that use of the name “Mokola Kamiali” wherever and whenever it may occur subsequent to delivery of this decision but in connection with this proceeding automatically includes the alternative spelling and pronunciation of the deceased’s name as “Mogola Kamiali”.
  3. Secondly, there will be an order that the second defendant cited in the writ as “Ilaila Development Corporation Limited” is to be removed from this proceeding altogether because it has been proven as a fact that no corporate entity has ever been incorporated in that name under the Companies Act 1997. The company that was incorporated by the late Mr Kamiali on 18 October 1999 was “Ilaila Development Ltd”, not “Ilaila Development Corporation Limited”. The Court will therefore exercise its power under O 5 r 9(a) NCR to remove the second defendant as a party because it was improperly named in the writ and improperly joined as a party from the outset of this proceeding.
  4. Thirdly, the Court must make orders in connection with the sum of K696,568 which M.S.Wagambie Lawyers paid into the National Court Registrar’s trust account (Registrar’s Trust Account) on 18 December 2018 after Mr Wagambie was ordered to do so.
  5. I have checked with the Office of the Registrar and have been informed that the full amount of K696,568 remains intact in the Registrar’s Trust Account. However, as those monies were not placed on interest bearing deposit with any registered financial institution, it is the principal sum of K696,568 which remains available for release by the Registrar on order of the Court.
  6. Before I proceed further, I need to observe that the persons who are entitled to share the amount of K696,568 now in the Registrar’s Trust Account are all 57 of the plaintiffs in WS No. 1185 of 1996, excluding the Estate of the late Mr Kamiali because of Mr Kamiali’s fraudulent claim against the State. The amount of K696,568 in the Registrar’s Trust Account must benefit all 57 of those plaintiffs or their survivors, not just the 33 members of the Group 1 Plaintiffs and the 15 members of the Group 2 Plaintiffs.
  7. I have come to this conclusion because the monies which ended up in the trust account Wagambie Lawyers and which were accessed by the late Mr Kamiali to the proven extent of K638,455.18 were largely derived from two sources: a sundry amount of K30,955.18 which came from the trust account of Paulus M. Dowa Lawyers; and amounts totalling K2,330,307.90 which came from the State comprising K700,000 on account of costs (or balance of costs) and K1,630,307.90 on account of post-judgment interest in WS No. 1185 of 1996. All of these monies were paid by the State for the benefit of the plaintiffs in WS No. 1185 of 1996.
  8. Mr Wagambie’s evidence adduced at the trial of this proceeding failed to explain how K1,030,507.90 of the monies paid into his law firm’s trust account in connection with the judgment in WS No. 1185 of 1996 was disbursed by him “to the plaintiffs and service providers”, but there can be no doubt that all of the subject monies paid into the trust account of M.S.Wagambie Lawyers, which included the K638,455.18 I have found was fraudulently accessed by the late Mr Kamiali as well as the K696,568 paid into the Registrar’s Trust Account by M.S.Wagambie Lawyers, were monies funded by the State and paid in settlement of its obligations to those plaintiffs who were entitled to the benefit of the judgment in WS No. 1185 of 1996.
  9. As this Court has found that the late Mr Kamiali’s compensation claim in WS No. 1185 of 1996 was fraudulent, it follows that the monies formerly held in the trust account of M.S.Wagambie Lawyers must now be deemed, or at least treated by this Court, to have been held in that trust account for the benefit of the other 57 plaintiffs in WS No. 1185 of 1996, and that includes the 9 plaintiffs in WS No. 1185 of 1996 who were not represented in this current proceeding WS No. 1416 of 2011.
  10. Therefore the amount of K696,568 now held in the Registrar’s Trust Account is to be re-apportioned so that it excludes any point of reference to the amount to which the late Mr Kamiali was entitled under the judgment in WS No. 1185 of 1996 for his fraudulent compensation claim, and that amount of K696,568 is to be calculated pro rata for the benefit of the other 57 plaintiffs in WS No. 1185 of 1996 according to their respective entitlements under that judgment.
  11. Fourthly, I consider there is, a further matter which must be taken into account in respect of the amount of K696,568 held in the Registrar’s Trust Account: the issue of the lawyer-and-own-client legal costs of the Group 1 Plaintiffs and Group 2 Plaintiffs in pursuing this proceeding. While the Estate of the late Mr Kamiali is to pay the party/party costs of the Group 1 Plaintiffs and the Group 2 Plaintiffs for this proceeding WS No. 1416 of 2011, I consider it only fair and just that a proportion of the amount of K696,568 held in the Registrar’s Trust Account be paid out to the two law firms representing the Group 1 Plaintiffs and the Group 2 Plaintiffs by way of contribution towards their respective clients’ lawyer-and-own-client legal costs.
  12. This litigation has been on foot for a period of almost 11 years 6 months. PNG Legal Services has been acting for the Group 1 Plaintiffs from the outset of this litigation in October 2011. NiuAge Lawyers is the law firm which has been on the record in this proceeding as acting for the Group 2 Plaintiffs as from 23 March 2016, that being the date on which NiuAge Lawyers filed its of notice of appearance, over 6 years ago. On this basis the combined number of months spent by both law firms on this litigation is approximately 210 months, of which 138 months can be attributed to PNG Legal Services and 72 months to NiuAge Lawyers.
  13. If the full amount of the K696,568 sitting in the Registrar’s Trust Account were to be paid out to the 57 plaintiffs now entitled to it, it is likely that PNG Legal Services and NiuAge Lawyers will be paid little or nothing by their respective clients at this time towards their professional legal services for this prolonged litigation. The law firms acting for the Group 1 Plaintiffs and the Group 2 Plaintiffs have much work ahead of them if they are instructed to pursue payment by the Estate of the late Mr Kamiali for the party/party costs of their respective clients.
  14. I therefore propose to order that by way of providing some solace to PNG Legal Services and NiuAge Lawyers by way of contribution immediately payable towards their professional services already rendered and yet to be rendered to the Group 1 Plaintiffs and the Group 2 Plaintiffs, that an amount of K96,568 from the subject monies in Registrar’s Trust Account be forthwith paid out by the Registrar as follows, based on the duration of each law firm’s representation of their respective clients, leaving a balance of K600,000 available to be paid out to the 57 plaintiffs in WS No. 1185 of 1996 or their survivors:

To: PNG Legal Services (138/210 months x K96,568): K 63,458.97

To: NiuAge Lawyers (72/210 months x K96,568): K 33,109.03

Total on account of lawyer-and-own-client costs: K 96,568.00

  1. Schedule “B” to this decision is the calculation of the amount to which each of the named 57 plaintiffs are entitled under this judgment in respect of the balance of K600,000 to be released from the Registrar’s Trust Account.
  2. However, the Registrar will be ordered to only release the payments shown in Column 5 of Schedule “B” in each case when the following strict pre-conditions set out in Schedule “C” to the judgment for this decision are met.
  3. I consider that these pre-conditions for release of funds in the Registrar’s Trust Account held for the 57 plaintiffs specified in Column 2 of Schedule “B” are essential because of the persistent objections which have been taken in this litigation by members of the Group 1 Plaintiffs to various members of the Group 2 Plaintiffs allegedly having no entitlement to share in any award of damages which may be made in this proceeding, and vice versa. There is also the difficulty that the Registrar would otherwise confront when seeking to establish the genuineness of the identity of each the 57 eligible plaintiffs specified in Column 2 of Schedule “B” who are still alive, alternatively the identity of each personal representative for each deceased eligible plaintiff specified in Column 2 of Schedule “B”, before any payments can be made to them.
  4. Schedule “C” also provides a guide for lawyers seeking to identify the personal representatives of those otherwise eligible plaintiffs specified in Column 2 of Schedule “A” who are now deceased.

ORDERS

  1. The terms of the Order of the Court are as follows:

(1) Pursuant to Order 5 Rule 10(2) of the National Court Rules, the First Defendant variously cited in this proceeding as “Mokola Kamiali” and “Mogola Kamiali”, now deceased, is removed from this proceeding as a party and is forthwith substituted by his estate, namely “Estate of the late Mokola Kamiali by his personal representative Emmanuel Kamiali” as First Defendant.

(2) Pursuant to Order 5 Rule 9(a) of the National Court Rules, the Second Defendant is forthwith removed from this proceeding as the company cited as Second Defendant under the name “Ilaila Development Corporation Limited” does not exist as a corporate entity.

(3) Judgement is entered against the First Defendant, the Estate of the late Mokola Kamiali, in the sum of K913,638.11 comprising:

(a) special damages of K638,455.18; and

(b) pre-judgment interest of K275,182.93 on special damages at the rate of 4% per annum interest computed from 7 July 2007 to date of this judgment.

(4) The judgment sum of K913,638.11 is to be paid by the First Defendant, the Estate of the late Mokola Kamiali, to those 57 persons named in Column 2 of the Schedule “A” to this judgment in their respective shares as specified in Column 5 of Schedule “A”.

(5) Post-judgment interest on the judgment sum of K913,638.11 is to accrue at the rate of 2% per annum on so much of the judgment sum as may remain unpaid from time to time until the whole of the judgment monies which are payable by the First Defendant, the Estate of the late Mokola Kamiali, have been satisfied, the benefit of post-judgment interest to be apportioned according to the respective shares of the 57 persons entitled to the judgment sum as specified in Column 5 of Schedule “A”.

(6) The monies amounting to K696,568 presently held in the National Court Registrar’s trust account pursuant to the Order made in this proceeding on 18 December 2018 are to be disbursed by the Registrar or his delegate as follows:

(a) as to the sum of K63,458.97, forthwith to PNG Legal Services in partial satisfaction of lawyer-and-own clients’ costs payable to that law firm by the Group 1 Plaintiffs, to be offset against any party/party costs paid the First Defendant under term 9 of this Order;

(b) as to the sum of K33,109.03, to NiuAge Lawyers in partial satisfaction of lawyer-and-own clients’ costs payable to that law firm by the Group 2 Plaintiffs, to be offset against any party/party costs paid by the First Defendant under term 9 of this Order;

(c) as to the balance of K600,000, subject to term 7 of this Order, to those 57 persons named in Column 2 of Schedule “B” of this judgment in their respective shares as specified in Column 5 of Schedule “B”.

(7) The pre-conditions for the release by the Registrar or his delegate of the sum of 600,000, being the balance of the monies referred to in term 6(c) of this Order, are set out in Schedule “C’ of this judgment.

(8) Schedules “A”, “B” and “C” of this judgment form part of and are fully enforceable as components of this judgment.

(9) Subject to any existing interim costs orders made in this proceeding, the First Defendant, the Estate of the late Mokola Kamiali, shall pay the party/party costs of the Group 1 Plaintiffs and the Group 2 Plaintiffs of and incidental to this proceeding, such costs to be taxed if not agreed.

(10) The time for entry of this Order is abridged to the time of settlement by the Court which shall take place forthwith.


[PacLII Editorial Note: Schedule A & B can be viewed in the available PDF version]


WS No. 1416 of 2011: HARABE MANGOBE AND ORS -v ESTATE

LATE MOKOLA KAMIALI

SCHEDULE “C”

DIRECTIONS TO REGISTRAR OF NATIONAL COURT FOR RELEASE OF K60,000.00 HELD IN REGISTRAR OF NATIONAL COURT’S TRUST ACCOUNT

The following Directions apply to the Registrar of the National Court or his delegate in respect of the release of the balance of K600,000 of the monies paid into the Registrar of the National Court’s Trust Account pursuant to the Order made in WS No. 1416 of 2011 on 18 December 2018:

(1) In respect of the 57 plaintiffs in proceeding WS No. 1185 of 1996 whose names are specified in Column 2 of Schedule “B”, where any such plaintiff is alive and is:

(a) one of the 33 members of the Group I Plaintiffs; or

(b) one of the 15 members of the Group 2 Plaintiffs; or

(c) one of the remaining 9 plaintiffs in proceeding WS No. 1185 of 1996 who has not been legally represented in this proceeding WS No. 1416 of 2011,

then each such member may be paid his or her share as specified in Column 5 of Schedule “B” upon producing to the Registrar to his satisfaction:

(i) photo identification of himself or herself; and

(ii) written and dated authority addressed to the Registrar to pay his or her share to a nominated bank account, and if such member is illiterate then with an appropriate interpretation certificate from a lawyer with PNG Legal Services or NiuAge Lawyers (as the case may be) or otherwise from a lawyer of choice; and

(iii) written certification to the Registrar from a lawyer with PNG Legal Services or NiuAge Lawyers (as the case may be) or otherwise from a lawyer of choice of the genuineness of the identity and entitlement of that living member to be paid his or her share under Column 5 of Schedule “B”.

(2) In respect of any of the 57 plaintiffs in proceeding WS No. 1185 of 1996 whose names are specified in Column 2 of Schedule “B”, if any such plaintiff is now deceased then his or her share specified in Column 5 of Schedule “B” may only be paid by the Registrar to the personal representative of that deceased plaintiff upon that personal representative producing to the Registrar to his satisfaction:

(a) photo identification of himself or herself; and

(b) proof that such personal representative has:

(i) been granted administration of the estate of the deceased member under the Wills Probate and Administration Act Ch. 291 (as amended); or

(ii) obtained an appropriate order from the National Court pursuant to O 15 r 2(2) or r 2(3) NCR or under any of the other provisions of Order 15 (Administration And Trusts) National Court Rules or under any other jurisdiction or power conferred by law on the National Court by which such personal representative’s entitlement to be paid that deceased member’s share specified in Column 5 of the Schedule, whether as sole beneficiary or as trustee or fiduciary accountable to the beneficiaries of the estate of the deceased plaintiff, has been determined; and

(c) written and dated authority addressed to the Registrar to pay his or her share to a nominated bank account, and if such member is illiterate then with an appropriate interpretation certificate from a lawyer with PNG Legal Services or NiuAge Lawyers (as the case may be) or otherwise from a lawyer of choice.


Judgment accordingly.

PNG Legal Services: Lawyers for the Group 1 Plaintiffs

NiuAge Lawyers: Lawyers for the Group 2 Plaintiffs

Western Pacific Legal Services: Lawyers for the First and Second Defendants


[1] But see Affidavit of Harabe Mangobe filed 10 December 2018 where he asserts that he represents 41 plaintiffs in this suit: Trial Book, Vol. 1 at pp. 279-281.
[2] See Affidavit of Bernard Agiru filed on 11 December 2018.
[3] Also referred to as Malingi Tangilini in some of the affidavit material.
[4] Also referred to as the Tugurea Clan in various of the affidavit materials.
[5] See Revised Statement; items 11, 12 and 13.
[6] Trial Book, Vol.1 at pp. 89-90.
[7] Trial Book, Vol. 1 at pp. 121-122.
[8] Trial Book, Vol. 1 at p. 99.
[9] Trial Book, Vol. 1 at p. 99.
[10] Trial Book, Vol.1 at pp. 104 to 106.
[11] Trial Book, Vol. 1 at p. 99.
[12] Trial Book, Vol. 1 at p. 99.
[13] Trial Book, Vol.1 at p. 125.
[14] Trial Book, Vol.1 at pp. 255 to 260.
[15] Trial Book Vol. 1 at pp. 31-32.
[16] Trial Book, Vol. 1 at pp. 108 to 112.
[17] Trial Book, Vol. 3 at p. 642.
[18] Trial Book, Vol. 3 at p. 643
[19] Trial Book, Vol. 1 at pp. 5-13.
[20] Trial Book, Vol. 1 at pp. 14-16.
[21] Trial Book, Vol. 1 at pp. 17 -22.
[22] Trial Book, Vol. 1 at p. 56.
[23] (1973) Oxford University Press.
[24] (2004) Revised 3rd Edition. Macquarie University NSW.
[25] Vol. 1 Trial Book at pp. 104 to 106.
[26] Trial Book, Vol. 1 at p. 257.
[27] Trial Book, Vol. 1 at p. 258.
[28] Trial Book. Vol. 1 at p.267.
[29] Trial Book, Vol 2 at pp. 287, 288.
[30] Trial Book, Vol. 2 at p. 397.
[31] See Vol. 1 Trial Book at pp. 114-132.
[32] Trial Book, Vol. 1 at pp. 23 to 39.
[33] A copy of this cheque is contained in Trial Book, Vol. 1 at p.37

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