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Solo v Wu [2024] PGNC 317; N10978 (28 August 2024)

N10978

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 687 OF 2017 (CC1)

BETWEEN:
SAMUEL SOLO for and on behalf of himself & the Komba Clan Members of the Karins LLG, Mendi SHP whose names are listed as per schedule 1 attached hereto
Plaintiffs

AND:
ARTHUR WU – General Manager, Covec (PNG) Ltd
First Defendant

AND:
COVEC (PNG) LIMITED
Second Defendant

AND:
DAVID WEREH, Secretary Department of Works & Implementation
Third Defendant

AND:
HON FRANCIS AWESA, Minister for Department of Works & Implementation
Fourth Defendant

AND:
DEPARTMENT OF WORKS & IMPLEMENTATION
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Bre, AJ
2024: 17^th April & 28^th August

CIVIL PRACTICE AND PROCEDURE – representational authorities - whether there has been non-compliance of conditional orders – terms of conditional orders specific – plaintiffs had adequate time to address representational authorities – lack of compliance – fatal to proceeding.

Cases Cited
Jackson Tuwi v Goodman Fielder International Limited [2016] SC1500
Konny v Dr. Kombra & State [2023] N10607
Lomai v Seal (Manus) Ltd [2008] SC1326
Mali v Independent State of Papua New Guinea [2002] SC690
Samuel Solo v Arthur Wu - General Manager, Covec ( PNG) Ltd unreported, 16 February 2024
Tigam Malevo v Keith Faulkner [2009] SC960

Legislation
National Court Rules, O10 r 9A(15)(2)(c).

Counsel
Mr R Kasito, for the Applicant/ First and Second Defendants
Mr A Rake, for the Respondent/ Plaintiffs

RULING

28^th August 2024

1.BRE, AJ: Covec (PNG) Limited applies to summarily dismiss the proceeding for non-compliance of Court orders issued on 16 February 2024. The Court issued conditional orders to provide certain written authorisations of the representational capacities of the plaintiffs within 28 days of service of the order.

2. The plaintiff opposes the application and relies on the affidavit of Sekip Hembiap filed on 20 March 2024 (Doc 77) to submit that there was compliance within the required time.

3. The applicants filed its Notice of Motion on 28 March 2024, supported by the Affidavit of its Lawyer Rex Kasito filed on 28 March 2024 (Doc 79). The applicants rely on Order 10 Rule 9A(15)(2)(c) of the National Court Rules ( NCR) and term 7 of the Court Order of 16 February 2024 to assert non-compliance and seek relief for summary disposal of the proceeding for want of prosecution.

4. The issue for my consideration and exercise of discretion concerns whether there is sufficient compliance with the Court directional Orders of 16 February 2024. This comes down to the respondent providing sufficient documentary evidence to satisfy this Court of compliance with its Orders.

5. On 16 February 2024, I refused the summary dismissal application by the first and second defendants and issued orders for the plaintiff to confirm the representational capacity opposed by the first and second defendants.

6. According to the affidavit of Rex Kasito(Doc 79), the plaintiffs were served the Court Orders through their lawyer on 27 February 2024. The last day for the 28-day period to comply with terms 1, 2 and 3 of the orders is 26 March 2024.

7. Rex Kasito deposes to receiving on 26 March 2024, only one document from the plaintiffs' lawyer and that was the affidavit of Sekip Hembiap filed on 20 March 2024 (Doc 77) and served two days later. The affidavit of Sekip Hembiap was served within 28 days.

8. Mr Pake for the plaintiffs submits that the affidavit of Sekip Hembiap provides sufficient compliance with the terms of the Court Order of 16 February 2024.

9. According to the order, the three mandatory matters which the plaintiff is to provide documentary evidence of are:-

1) A list identifying the adults of the six family groups and their written consent to the family head listed in Schedule 1 of the Statement of Claim to represent them,
2) Written consent of the six family heads for the lead plaintiff, Samuel Solo, to represent them, and.
3) written authority to act form from past and current lawyers.

10. I have perused the affidavit of Sekip Hembiap who attaches typed meeting minutes of a meeting allegedly held by the Komba tribe in the village which discussed consent of the six family heads, the lead representative and the current legal representation.

There is no evidence of the boarding passes of those who travelled for the meeting. The meeting minutes record Sekip Hembiap as the interim Chairman, whether in the capacity as the chairman of the meeting or of the Komba tribe is not clarified.

11. Annexure B to the affidavit attaches a list of between two and six adult individuals of the six family groups by name and age with handwritten signatures authorising the six family heads named in Schedule 1 of the Statement of Claim to represent them in the proceeding.

I note that Sekip Hembiap is listed as a family member of the Hembiap Yupnaik family.

12. This list satisfies term 1 of the order and provides appropriate interest and standing of Sekip Hembiap to depose to the affidavit and to annex the consent authorities. Given this evidential finding, the issue taken by counsel for the applicant, concerning Sekip Hembiap’s standing has no merit.

13. In terms of term 2 of the orders, the written consent by the family members of each of the six groups seems to also authorise the lead plaintiff, Samuel Solo to represent them. However, there is no similar written authority from the six family heads being Buka Solo, Simon Hombe, Thomas Penger, though Nolpi Masa is not named in annexure 'B', Hembiak Yupnaik and Pore Kongel, specifically authorising Samuel Solo to represent them.

14. The written consents clearly authorise the respective family heads except for Nolpi Masa to represent the rest of the adult members of the family but falls short of the six family heads in turn authorising Samuel Solo to be the lead plaintiff and to give instructions to lawyers and take legal action on their behalf.

15. The respondent, through the evidence of Sekip Hembiap attempts to comply with term 3 of the order by annexing a letter authorising counsel Anthony Rake to act for them. This letter is signed by Sekip Hembiap as interim chairman and Sylvester Komba as secretary/minute taker. There is no written authority from the lead plaintiff, Samuel Solo, to Mr Rake.

16. There is no explanation as to why the lead plaintiff Samuel Solo has not filed an affidavit nor signed the authority to act letter to Mr Rake. The meeting minutes do not record Samuel Solo as present in the meeting but record under agenda no 3 (vi ) and (vii) through a show of hands his continued representation of the Kombe Group as the representative in the litigation of its case. I do not accept this as sufficient authority of the six family heads to Samuel Solo in compliance with term 2 of the Court Order.

17. I find that the respondent tries to excuse the provision of past authority to act forms from past lawyers by deposing to the death of their initial lawyer, one Robbie Yansion allegedly in 2021.

The plaintiffs' last lawyer on record before Mr Rake was the Public Solicitor. No evidence of authority to act form, from the Public Solicitor has been produced.

18. The proceeding was commenced on 26 July 2017, a period of seven years has passed. The issue of representation is a preliminary matter that should have been resolved and the representational authorities in place at three preliminary stages of the suit being; before the filing of the writ, at the time of filing the writ or some three to six months after.

I reiterate what I stated in my ruling of 16 February 2024^[1]:

"It is fatal to the proceedings where any of the factors for sufficiently proving authority to represent are not met as established in Mali v The State."

19. These factors are settled in the cases of Mali v Independent State of Papua New Guinea [2002] SC690, Tigam Malevo v Keith Faulkner [2009] SC960 and Jackson Tuwi v Goodman Fielder International Limited [2016] SC1500 which are that:-

“ a) All intended Plaintiffs be named in the originating process.
b) Each intended Plaintiffs must give specific instructions evidenced in writing to the lawyers to act for them.
c) The principal or lead Plaintiff must produce an authority to the Court to show that he is authorised by them”.

20. I find that the respondent has not satisfactorily discharged factors (b) and (c). The orders of 16 February 2024 are clear; where any of the three required authorities are not provided, the proceeding stands dismissed. All three representational requirements must be produced.

21. I must exercise my discretion considering the duration of litigation and delay in resolving what I consider are preliminary matters. The defendants are a company and State institutions and while they may be viewed as having sufficient capacity to defend the litigation, prolonging the litigation for seven years over a preliminary matter, to my mind tips the scales of justice in favour of the defendants, who will continue to incur costs in defending the litigation.

22. The plaintiff must prove their claim in Court expeditiously. The initial application by the first and second defendants challenging the representational aspects of the plaintiff was raised on 4 April 2023 when their notice of motion was served on the plaintiffs lawyers and the rest of the defendants^[2]. The plaintiff should have used their best endeavours to ensure the necessary authorisation is in place. They had sufficient time to do that and did not take the required actions to have the representational authorities in place.

23. Court orders should not be treated lightly or at the convenience of parties. See Lomai v Seal (Manus) Ltd [2008] SC1326 and Konny v Dr. Kombra & State [2023] N10607.

24. Order 10 Rule 9A(15)(2)(c) of the National Court Rules authorises the Court to summarily dispose a matter:-

" for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes."

25. It is my ruling that the plaintiffs have not complied with terms 2 and 3 of the Court Order of 16 February 2024, and the proceeding stands dismissed consistent with terms 4 and 7 of those orders.

ORDER

26. The formal orders for the Court are:

1) The entire proceeding is summarily dismissed for non-compliance with the Court Orders of 16 February 2024 pursuant to Order 10 Rule 9A(15)(2)(c) of the National Court Rules.

2) Costs of the proceeding is awarded to the first and second defendants to be paid by the plaintiffs on a party/party basis to be taxed, if not agreed.

3) The time for entry of these Orders is abridged to the time of signing by the Court which shall take place forthwith.
4) The Court File is to be closed and archived.

Orders accordingly,
________________________________________________________________
Rake Lawyers: Lawyers for the Plaintiffs
Rex Kasito Lawyers: Lawyers for the First and Second Defendants

^[1] Samuel Solo v Arthur Wu - General Manager, Covec ( PNG) Ltd unreported, 16 February 2024 at [12].
^[2] Refer to paragrapgh 2 in Samuel Solo v Arthur Wu General Manager of Covec ( PNG) Lts and Ors WS 687 of 2017 (CC1), unreported, 16 February 2021.