Timbers PNG Limited v Papua New Guinea Forest Authority and Minister For Forests (2012) N4638

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 06 March 2012
• Court: National Court
• Citation: (2012) N4638
• Docket Number: OS (JR) 22 of 2012
• Year: 2012
• Judgement Number: N4638

Full Title: OS (JR) 22 of 2012; Timbers PNG Limited v Papua New Guinea Forest Authority and Minister For Forests (2012) N4638

National Court: Hartshorn J

Judgment Delivered: 6 March 2012

N4638

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 22 OF 2012

BETWEEN:

TIMBERS PNG LIMITED

Plaintiff

AND:

PAPUA NEW GUINEA FOREST AUTHORITY

First Defendant

AND:

MINISTER FOR FORESTS

Second Defendant

Waigani: Hartshorn J.

2012: 5th & 6th March

Application for Joinder – whether Order 5 Rule 8 (1) National Court Rules available in an application for Judicial Review – whether joinder principles satisfied

Facts:

Timbers PNG Ltd has been granted leave to apply to judicially review the decision of the Minister for Forests to cancel the licence issued to it under the Forestry Act. The purported cancellation of the licence occurred in circumstances where the logging and marketing agreement between Sogeram Development Corporation Ltd and Timbers PNG was purportedly terminated by Sogeram DC and then that termination was subsequently declared null and void by Sogeram DC.

Held:

Woodbank has not satisfied the requirements of Order 5 Rule 8 (1) National Court Rules concerning the addition of parties.

Cases cited:

Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 444

AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944

Nou v Cherake (2004) N2539

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Yanta Development Association Inc v Piu Land Group Inc (2005) SC798

PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Kara v. Public Curator of Papua New Guinea (2010) N4048

Counsel:

Mr. W. Frizzell, for the Plaintiff

Mr. S. Mitige, for the First Defendant

Mr. F. Griffin, for the Second Defendant

Mr. N. Kopunye, for the Applicant

6th March, 2012

1. HARTSHORN, J: Timbers PNG Ltd has been granted leave to apply to judicially review the decision of the Minister for Forests to cancel the licence issued to it under the Forestry Act. The purported cancellation of the licence occurred in circumstances where the logging and marketing agreement between Sogeram Development Corporation Ltd and Timbers PNG was purportedly terminated by Sogeram DC and then that termination was subsequently declared null and void by Sogeram DC.

2. Woodbank Pacific Ltd applies to be added as a third defendant to this proceeding as it has been granted a licence from the National Forest Board and has a logging and marketing agreement with Sogeram DC for the same area in respect of which Timbers PNG has its licence and logging and marketing agreement with Sogeram DC. It submits that it has sufficient interest in this proceeding and will be affected if the substantive decision in this proceeding is in favour of Timbers PNG. Woodbank's application is made pursuant to Order 5 Rule 8 (1) National Court Rules.

3. The defendants, the Papua New Guinea Forest Authority and the Minister for Forests do not oppose the application.

4. Timbers PNG opposes the application and submits that for the joinder of parties in judicial review matters, Order 16 Rule 5 (2) National Court Rules is the appropriate Rule under which application should be made. Counsel for Timbers PNG relied upon the decisions of Nou v. Cherake (2004) N2539 and Yanta Development Association Inc v. Piu Land Group Inc (2005) SC798, in this regard. This submission of Timbers PNG is supported by the Supreme Court decision of Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444 in which the Court stated that Order 16 of the National Court Rules:

“..is an exclusive procedure provided by the Rules..”

5. Further, in Peter Makeng v. Timbers (PNG) Ltd (2008) N 3317, Injia DCJ (as he then was) stated that:

“It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v. Hamidian Rad (supra). Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16.”

6. As Order 5 Rule 8 has not been expressly adopted under Order 16, then pursuant to Gene (supra) and Makeng (supra), it cannot be relied upon for the joinder of parties in judicial review proceedings and this application should be refused.

7. If however, Order 5 Rule 8 can be relied upon, the principles on joinder under this Rule are well-established: PNG International Hotels Pty Ltd & Anor v. The Registrar of Land Titles and Ors (2007) N2307, Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718, AGC (Pacific) Ltd v. Sir Albert Kipalan & Ors (2000) N1944 and Kara v. Public Curator of Papua New Guinea (2010) N4048.

8. These principles are:

a) whether the applicant has sufficient interest in the proceedings,

b) whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

9. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon, certain factors warrant consideration.

10. These include whether:

a) any relief is sought against the proposed party,

b) the plaintiff opposes the application for joinder,

c) the proposed party will be affected if the relief sought in the statement of claim is granted,

d) the joinder of the proposed party is necessary to satisfy any orders made in the...