SCA 32 & 33 OF 2009; PNG Deep Sea Fishing Limited v Hon. Luke Critten, Governor for Milne Bay and Hon.Charles Abel, Minister for Culture and Tourism and Member for Alotau and Milne Bay Provincial Government and Milne Bay Provincial Physical Planning Board and Hon. Puka Temu, Minister for Lands and Physical Planning (2010) SC1126

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Hartshorn &Sawong, JJ.
• Judgment Date: 10 December 2010
• Court: Supreme Court
• Citation: (2010) SC1126
• Year: 2010
• Judgement Number: SC1126

Full Title: SCA 32 & 33 OF 2009; PNG Deep Sea Fishing Limited v Hon. Luke Critten, Governor for Milne Bay and Hon.Charles Abel, Minister for Culture and Tourism and Member for Alotau and Milne Bay Provincial Government and Milne Bay Provincial Physical Planning Board and Hon. Puka Temu, Minister for Lands and Physical Planning (2010) SC1126

Supreme Court: Kandakasi, Hartshorn &Sawong, JJ.

Judgment Delivered: 10 December 2010

SC1126

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 32 & 33 OF 2009

BETWEEN:

PNG DEEP SEA FISHING LIMITED

Appellant

AND:

HON. LUKE CRITTEN, Governor for Milne Bay

First Respondent

AND:

HON.CHARLES ABEL, Minister for Culture and Tourism and Member for Alotau

Second Respondent

AND:

MILNE BAY PROVINCIAL GOVERNMENT

Third Respondent

AND:

MILNE BAY PROVINCIAL PHYSICAL PLANNING BOARD

Fourth Respondent

AND:

HON. PUKA TEMU, Minister for Lands and Physical Planning

Sixth Respondent

Waigani: Kandakasi, Hartshorn &Sawong, JJ.

2010: 31st August10th December

PRACTICE & PROCEDURE – Adjournments – Application for – Must be made at the earliest opportunity when the need for an adjournment is known – Applicant must demonstrate refusal to adjourn with result in prejudice - Must be supported by evidence of steps taken to proceed with the hearing or set event but for circumstances beyond the applicant’s control - Court has discretion to either grant or refuse an adjournment – Discretion must be exercised on proper factual and legal basis.

PARTIES & CAUSES OF ACTION – Application to join parties – Relevant tests – Party sought or seeking to be joined has sufficient interest in the proceedings and joinder is necessary for an effective determination of issues raised – Regard must be had to cause of action – Pleadings or supporting affidavit material must connect the party sought or seeking to be joined as having an interest in the proceedings - Joining or seeking to join departmental heads or managers and directors of corporations without any personal cause of action for or against them disclosed is an abuse of process.

INJUNCTIONS – Application for interim injunctions – Court has discretion whether or not to grant - Before grant of injunctions, there must be a serious question to be tried, balance of convenience favour grant of, damages not adequate compensation and what is sought to be injuncted is not speculative.

LAWYERS – Employed lawyers and partners – Partners in charge and control of employed lawyers attendance to cases – Employed lawyer leaving employment after having secured dates for hearing of matters – Partner duty bound to take steps to attend to the hearings or promptly apply for adjournments - Failure of partner to do so – No basis to adjourn – Court must proceed with hearing.

Cases Cited:

Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183

OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988 – 1989] PNGLR 35

AGC (Pacific) Limited v Sir Albert Kipalan & 4 Ors (24/02/00) N1944

Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718

Eki Investments Limited v. Era Dorina Limited; Era Dorina Limited v. Eki Investments Limited (2006) N3176.

Konze Kara v. Public Curator of PNG (2010) N4048

Ken Norae Mondiai v Wawoi Guavi Timber Company Limited (2006) N3061

Jimm Trading Limited v. John Maddison (2006) N3174

Chief Collector of Taxes v Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853

Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation), (2002) N2309

Mt. Hagen Airport v. Gibbs [1976] PNGLR 216

Public Employees Association v. Public Service Commission [1988-89] PNGLR 585

Markcal Limited & Robert Needham v. Mineral Resources Development Co. Pty Ltd (1996) N1472

AGK Pacific (NG) Ltd v. William Brad Anderson Karson Construction (PNG) Ltd & Downer Construction (PNG) Ltd (1999/2000) N2062

William Duma v. Yehiura Hriehwazi (2004) N2526

Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Mudge v. Secretary for Lands [1985] PNGLR 387

Koitachi Ltd v. Walter Schnaubelt (2007) SC870

Steamships Trading Company Ltd v. Garamut Enterprises Ltd (2000) N1959

Hi-Lift Company Pty Ltd v. Miri Setae [2000] PNGLR 80

Ramu Nickel Ltd v. Temu (2007) N3252

Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC 705

Counsel:

S. Ketan, for the Appellant

D. Liosi, for the First to the Fifth Respondents

18th November, 2010

1. KANDAKASI & SAWONG JJ: By two separate appeals, PNG Deep Sea Fishing Limited, (the Appellant) is appealing against two separate decisions of the National Court. The first decision declined an application to join parties and the second declined an application for interim injunctions. Following orders at directions hearing, we heard both appeals as one and reserved our decision.

Application to Adjourn

2. Before we could hear the appeals, Mr. Ketan of counsel for the Appellant, applied for an adjournment. He sought the adjournment on the basis that, counsel having carriage and conduct of the appeals on behalf of his client ceased employment with his firm, Ketan Lawyers, and that he was in no position to argue the appeals. The Court declined Mr. Ketan’s application because:

(a) The counsel who had the prior carriage of the matter was his employed lawyer. Hence, Mr. Ketan was under an obligation to supervise and know what matters his employed lawyer was handling, when any of those matters were coming before what court and ensure amongst others that, the lawyer was adequately and properly attending to the matter;

(b) If he discharged his obligations as noted above, Mr. Ketan could have known the date set for the hearing of the appeals in this matter and ensured that someone within his firm or himself was attending to this matter;

(c) When counsel having carriage of the matter ceased his employment with Ketan Lawyers, Mr. Ketan was under an obligation to ensure that someone was attending to the matter in sufficient time to ensure the hearing of the appeal did proceed on the dates set or otherwise apply earlier for an adjournment. Mr. Ketan did neither and merely turned up in Court and asked for an adjournment without any supporting affidavit setting out facts disclosing steps he had taken toward the hearing of the appeal but for say circumstances beyond his control.

(d) There is already case law in our jurisdiction on adjournments such as the decision in Melina Limited trading as CN Mercantile v. Fred Martens,

(2001) N2183.

1 where the Court endorsed the decision of Kapi DCJ (as he then was) in OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1)

[1988 – 1989] PNGLR 355

2 and said:

“In this case, without having undertaken and complied with the requirements for actually getting the case ready for trial and proceed with the trial on the date set for the trial, the plaintiff came into Court on the day of the trial and asked for an adjournment to cover for its own failure. It has been held that the Court does have the power to grant or to refuse an application for adjournment of proceedings set down for trial. An applicant for an adjournment bears the onus of showing why a refusal to adjourn would result in injustice to him or her. He or she also has the obligation to make the application promptly and must prove actual prejudice and not a mere speculation of prejudice. When considering such an application, the Court is required to also consider the interest of the respondent to such an application. That is to say the Court should consider whether an adjournment would result in injustice to the respondent.”

(e) In the case before us as we already observed, Mr. Ketan did not place before us any affidavit material or evidence of the steps the counsel than having the carriage of the matter, Mr. Ketan, anyone in his firm or the Appellant taking any step toward getting the Appeal ready for hearing on the set date. Consequently, Mr. Ketan and his client did not demonstrate to our satisfaction of their giving their best efforts to proceeding with the hearing of the appeals but for circumstances beyond (such circumstances properly identified) their control, they were not able to do that.

3. Following the refusal of the Appellant’s application for adjournment, we heard the appeals, which as we noted earlier, concerns dismissing an application for joinder of parties and an application for injunction.

Joinder of Parties

4. Dealing firstly with the issue of joinder of parties, we note that, the law in relation to joinder of parties is clear. Division 1 of Order 5 of the National Court Rules codifies the relevant principles on joinder of parties and or causes of action. Relevantly, r. 8 states that:

“(1) Where a person who is not a party—

(a) ought to have been joined as a...