Passingan v Pepi Kimas, Tutuman Development, Joinland PNG & others [2023]
Case relating to illegal logging under a Special Agriculture Business Lease
Logging companies mentioned in this document:
Concessions mentioned in this document:
SC2734
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA NO 19 OF 2023
LYDIA NOAH, ISMAEL PASSINGAN & FELMAN ISAAC
AS LANDOWNERS AND REPRESENTATIVES OF
TIEN, NGUMA, VENGEVENGE, IANGA & SILAU CLANS OF
KONOMATALIK, PATIPAI, TSOI ISLAND & METAMIN VILLAGES,
CENTRAL NEW HANOVER, KAVIENG DISTRICT,
NEW IRELAND PROVINCE
Appellants
V
PEPI KIMAS, SECRETARY,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Respondent
BENJAMIN SAMSON, REGISTRAR OF TITLES
Second Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
PALMA HACIENDA LIMITED
Fourth Respondent
TUTUMAN DEVELOPMENT LIMITED
Fifth Respondent
CENTRAL NEW HANOVER LIMITED
Sixth Respondent
JOINLAND PNG LIMITED
Seventh Respondent
WAIGANI: CANNINGS J, ELIAKIM J, CARMODY J
30 APRIL, 5 MAY 2025
SUPREME COURT – practice and procedure – objection to competency of
appeal – ground of objection: that the appeal was commenced in breach of
mandatory legal requirements for a class or representative action – whether
such requirements apply to commencement of appeals – whether there was
compliance with requirements – whether appeal could be sustained if some or
all represented appellants did not authorise institution of appeal.
The fifth, sixth and seventh respondents (“the respondents”) objected to
competency of an appeal on the ground that it “has been commenced in breach
of the mandatory legal requirements for a class or representative action”. The
appeal was commenced by three persons (“the principal appellants”) as
landowners and representatives of five clans comprising approximately 165
persons. The respondents argued that there was no evidence that each and every
appellant had given instructions to their lawyers to act for them, nor that they
had authorised one of the principal appellants to act for them.
Held:
(1) The requirements that have been developed regarding class or
representative actions do not apply to commencement of appeals. Instituting
an appeal is to be distinguished from commencement of an action.
(2) If such requirements do apply to commencement of appeals, there was in
this case substantial compliance with the requirements.
(3) Any lack of complete compliance would have the effect of potentially
removing from the appeal only those persons who had not given instructions
to their lawyers to act for them or had not authorised one of the three
principal appellants to act for them.
(4) The appeal was commenced in the name of three persons who were
plaintiffs in the National Court proceedings from which the appeal arises.
They had standing in their own right to institute the appeal. Even if all
represented appellants were removed from the appeal, the appeal could be
sustained in the names of those three principal appellants.
(5) Section 42 of the Supreme Court Act allows the Court to direct that the
practice and procedure and Rules of Court do not apply to a matter. In the
circumstances of this case, the Court would if necessary have invoked s 42 to
ensure that the appellants were not shut out of the Supreme Court.
(6) The appeal was competent and the objection to competency was refused,
with costs.
Cases cited
Koti v Moli (2022) SC2191
Lensie Angale & Others v Pepi Kimas & Others (2021) N9113
Malewo v Faulkner (2009) SC960
Mali v The State [2002] PNGLR 548
Todiai v Schnaubelt [2017] 2 PNGLR 311
Counsel
C J McGrath & E K Wohuinangu for the appellants
P Tabuchi for the fifth, sixth & seventh respondents
1. BY THE COURT: The fifth, sixth and seventh respondents (“the
respondents”) object, by a notice of objection to competency filed 11 July 2023,
to the competency of the appeal, SCA 19 of 2023.
2. The appeal was commenced by three persons – Lydia Noah, Ismael
Passingan and Felman Isaac – (“the principal appellants”) as landowners and
representatives of five clans comprising approximately 165 persons.
3. The appeal is against the order of the National Court (per Tamade AJ) of 7
July 2021 in WS 1245 of 2014 (Lensie Angale & Others v Pepi Kimas & Others
(2021) N9113). Her Honour refused an application by the plaintiffs (now the
appellants) to file an amended writ of summons and statement of claim and join
an additional defendant and dismissed the proceedings against three defendants
(now the fifth, sixth and seventh respondents). The order was an interlocutory
judgment and the appellants have been granted leave to appeal against it.
4. In the National Court the appellants, who are customary landowners of
New Hanover Island, New Ireland Province, are claiming various relief in
regard to allegedly illegal logging activity taking place on a tract of land covered
by a Special Agricultural and Business Lease.
GROUND OF OBJECTION
5. The sole ground of objection is that the appeal “has been commenced in
breach of the mandatory legal requirements for a class or representative action”.
6. It is argued that cases such as Mali v The State [2002] PNGLR 548 and
Malewo v Faulkner (2009) SC960 show that the mandatory requirements are
that:
(a) all intended plaintiffs or persons claimed to be represented
by a principal party must be named in the originating process;
(b) each and every intended plaintiff must give specific
instructions evidenced in writing to their lawyers to act for them;
and
(c) any person who commences proceedings and claims to
represent other intended plaintiffs must produce an authority to
the court to show that they were authorised by them to file
proceedings as a class representative.
7. The respondents argue that though requirement (a) has been met, (b) and
(c) have not, and that as all three requirements must be met, the appeal is
incompetent. They rely on the decision of the Supreme Court in Koti v Moli
(2022) SC2191, to argue that the requirements developed in cases such as Mali
and Malewo apply to Supreme Court reviews and appeals that are commenced
in a representative capacity, in the same way that they apply to cases
commenced in a representative capacity in the National Court.
DETERMINATION
8. We have decided to refuse the objection, for the following reasons.
9. First, we are not convinced that the requirements developed by the
Supreme Court in cases such as Mali and Malewo regarding class or
representative actions apply to commencement of appeals. Instituting an appeal
is to be distinguished from commencement of an action. We note that the
Supreme Court decision in Koti can be read as support for the respondents’
proposition that there is a need to comply with those requirements when a
review or appeal is brought in a representative capacity. However, Koti can be
distinguished from the present case as in Koti a respondent objected to the
applicant’s standing to bring the review. It was not an objection to competency.
The Supreme Court dismissed the review as the applicant lacked standing and
the review was determined to be frivolous and vexatious. There was no
determination that the review was incompetent.
10. Secondly, if we were of the view that the requirements for commencing
representative proceedings applied to Supreme Court appeals, we are satisfied
that the requirements have in fact been substantially complied with. All persons
claimed to be represented by the principal appellants have been named in a
schedule to the notice of appeal. There is evidence that the appellants have given
specific instructions evidenced in writing to their lawyers to act for them. There
is evidence that the three principal appellants have been authorised by the
appellants to commence the appeals as class representatives.
11. Thirdly, to the extent that there is a lack of complete and absolute
compliance with the requirements, this has the effect of potentially removing
from the appeal only those persons who had not given instructions to their
lawyers to act for them or had not authorised one of the three principal
appellants to act for them (Todiai v Schnaubelt [2017] 2 PNGLR 311).
12. Fourthly, the appeal has been instituted in the name of three persons who
were plaintiffs in the National Court proceedings from which the appeal arises.
They have standing in their own right to institute the appeal. Even if all
represented appellants are removed from the appeal, the appeal can be sustained
in the names of those three principal appellants.
13. Finally, we invoke s 42 (practice and procedure) of the Supreme Court
Act:
The practice and procedure in and in relation to a matter in the
Supreme Court shall be the practice and procedure provided by law
or the Rules of Court in relation to matters of that kind except as
directed by the Supreme Court at any stage of the matter.
14. If we had been persuaded that the requirements for commencement of
representative proceedings applied to institution of Supreme Court appeals and
that those requirements were not complied with, we would direct under s 42 that
those requirements ought not apply in the circumstances of this case. The
appellants are genuinely aggrieved by the order of the National Court. They are
customary landowners who have filed a significant environmental claim against
a group of timber companies. They are the sort of litigants who should not be
shut out of the courts except for very good reasons. Such reasons do not exist in
this case.
CONCLUSION
15. The objection will be refused and costs will follow the event.
ORDER
(1) The objection to competency, made by notice of objection to competency
filed on 11 July 2023, is refused.
(2) The fifth, sixth and seventh respondents shall pay the appellants’ costs of
the objection to competency on a party-party basis, which shall if not
agreed be taxed.
(3) The appeal is referred to the duty judge for directions.
________________________________________________________________
Lawyers for the appellants: CELCOR Lawyers
Lawyers for the 5th, 6th & 7th respondents: Young & Williams Lawyers
