In the matter of an Application for Judicial Review under Order 16 of the National Court Rules; Gregory Todiai for himself and as Clan leader for Limut Clan and Raymond Toaboli for himself and as Clan leader of Marnai Guramwan Clan both also for and on behalf of the 529 named Plaintiffs of 16 Wards out of the 17 Wards/Villages of Lak (East) and Kandas (West) area situated within the Konoagil Local Level Government (LLG) area of Namatanai District, New Ireland Province (First Plaintiffs) and Honourable James Pandi for himself and as LLG President of Konoagil Rural Local Level Government also for and on behalf of the 17 named Ward Councillors, Namatanai District, New Ireland Province (Second Plaintiffs) and New Ireland Provincial Government (Third Plaintiffs) v Walters Farmers Association (WFA) (First Defendants) and Laka Forest Development Limited 1-100201 (Second Defendants) and Konoagil Agri Development Limited 1-10098 (Third Defendants) and Million Plus Corporation Limited 1-79119 The Developer of The Konoa

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 08 February 2019
• Court: National Court
• Citation: (2019) N7678
• Docket Number: OS (JR) NO. 83 OF 2017
• Year: 2019
• Judgement Number: N7678

Full Title: OS (JR) NO. 83 OF 2017; In the matter of an Application for Judicial Review under Order 16 of the National Court Rules; Gregory Todiai for himself and as Clan leader for Limut Clan and Raymond Toaboli for himself and as Clan leader of Marnai Guramwan Clan both also for and on behalf of the 529 named Plaintiffs of 16 Wards out of the 17 Wards/Villages of Lak (East) and Kandas (West) area situated within the Konoagil Local Level Government (LLG) area of Namatanai District, New Ireland Province (First Plaintiffs) and Honourable James Pandi for himself and as LLG President of Konoagil Rural Local Level Government also for and on behalf of the 17 named Ward Councillors, Namatanai District, New Ireland Province (Second Plaintiffs) and New Ireland Provincial Government (Third Plaintiffs) v Walters Farmers Association (WFA) (First Defendants) and Laka Forest Development Limited 1-100201 (Second Defendants) and Konoagil Agri Development Limited 1-10098 (Third Defendants) and Million Plus Corporation Limited 1-79119 The Developer of The Konoagil Integrated Agriculture (Oil Palm) Project, Namatanai, District, New Ireland Province (Fourth Defendants) and David Dataona in his capacity as The Chairman of the Board of the National Forest Authority and His Committee (Fifth Defendants) and Tuno Sabuin, Managing Director of Papua New Guinea Forest Authority (Sixth Defendants) and Registrar Of Incorporated Land Groups, Department of Lands and Physical Planning (Seventh Defendants) and Gunther Joku, Managing Director, Conservation Environment Protection Authority (Eight Defendants) and Francis Daink, Acting Secretary, Department of Agriculture and Livestock (Ninth Defendants) and Independent State Of Papua New Guinea (Tenth Defendants) (2019) N7678

National Court: Anis J

Judgment Delivered: 8 February 2019

N7678

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 83 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:

GREGORY TODIAI for himself and as Clan leader for Limut Clan and RAYMOND TOABOLI for himself and as Clan leader of Marnai Guramwan Clan both also for and on behalf of the 529 named Plaintiffs of 16 Wards out of the 17 Wards/Villages of Lak (East) and Kandas (West) area situated within the Konoagil Local Level Government (LLG) area of Namatanai District, New Ireland Province

First Plaintiffs

AND:

HONOURABLE JAMES PANDI for himself and as LLG President of Konoagil Rural Local Level Government also for and on behalf of the 17 named Ward Councillors, Namatanai District, New Ireland Province

Second Plaintiffs

AND:

NEW IRELAND PROVINCIAL GOVERNMENT

Third Plaintiffs

AND:

WALTERS FARMERS ASSOCIATION (WFA)

First Defendants

AND:

LAKA FOREST DEVELOPMENT LIMITED 1-100201

Second Defendants

AND:

KONOAGIL AGRI DEVELOPMENT LIMITED 1-10098

Third Defendants

AND:

MILLION PLUS CORPORATION LIMITED 1-79119 THE DEVELOPER OF THE KONOAGIL INTEGRATED AGRICULTURE (OIL PALM) PROJECT, NAMATANAI, DISTRICT, NEW IRELAND PROVINCE

Fourth Defendants

AND:

DAVID DATAONA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF THE NATIONAL FOREST AUTHORITY AND HIS COMMITEE

Fifth Defendants

AND:

TUNO SABUIN, MANAGING DIRECTOR OF PAPUA NEW GUINEA FOREST AUTHORITY

Sixth Defendants

AND:

REGISTRAR OF INCORPORATED LAND GROUPS, DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Seventh Defendants

AND:

GUNTHER JOKU, MANAGING DIRECTOR, CONSERVATION ENVIRONMENT PROTECTION AUTHORITY

Eight Defendants

AND:

FRANCIS DAINK, ACTING SECRETARY, DEPARTMENT OF AGRICULTURE AND LIVESTOCK

Ninth Defendants

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Tenth Defendants

Kokopo: Anis J

2018: 23 November &

2019: 8th February

JUDICIAL REVIEW – Motion to dismiss – Order 16 Rule 13(13)(2)(a) & (b)(a) – grounds – incompetency & abuse of court process – whether consent of all plaintiffs required before amending the Statement under Order 16 Rule 3(2) of the National Court Rules – whether second plaintiff has standing – whether standing has been addressed by the leave Court – whether the Attorney General has briefed out the matter for the second and third plaintiffs – section 7(i) – Attorney-General Act 1989.

Cases Cited:

East New Britain Provincial Government v. The Public Service Commissioner and Ors (2017) N6706

Gire Gire Estate Ltd v. Barava Ltd (2016) N6473

Lawrence Sausau v. Joseph Kumgal (2006) N3253

Miai Larelake v. Hon. Havila Kavo (2008) N3563

Simakade Holdings Ltd and Ors v. David Dotaona, Chairman of the National Forest Board and Ors, (2018) N7356

SCR No. 1 of 1998: Reservations pursuant to s. 15 of the Supreme Court Act (2001) SC672

Counsel:

Mr N. Mirou, for the First, Second and Third Plaintiffs

Mr G Purvey, for the First, Second, Third and Fourth Defendants

Mr S. Mitige, for the Fifth and Sixth Defendants

Ms E. Takoboy, for the Seventh, Ninth and Tenth Defendants

RULING

8th February, 2019

1. ANIS J: This is my ruling in relation to a notice of motion which was filed on 31 October 2018 (application). The application was filed by the first, second, third and fourth defendants (the 4 defendants). It sought the dismissal of the judicial review proceeding on two grounds, namely, incompetency and abuse of court process. The application was contested, and it was heard on 23 November 2018. I reserved my ruling thereafter.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. The plaintiffs obtained leave to apply for judicial review on 15 March 2017. They challenge, amongst other things, a decision of the State and its agencies, that was made on or about 12 October 2015. The plaintiffs allege that by that decision, a Forest Clearing Authority FCA No. 16-03 (FCA licence) was issued to the fourth defendant. The FCA licence was issued to clear forest on a demarcated land area within the Konoagil Local Level Government area in the Namatanai District of New Ireland Province.

MOTION

4. I refer to the relief in the application, and I quote in part:

2. Pursuant to Order 16 Rule 13(13)(2)(a)(b) sub-paragraph (b) of the Rules and the inherent jurisdiction of the Honourable Court, the entire proceedings be dismissed for being incompetent and/or an abuse of process.

3. Alternatively, pursuant to Order 12 Rule 40(a), (c) and (d) of the Rules and the inherent jurisdiction of the Honourable Court the entire proceedings are dismissed for not disclosing a reasonable cause of action and/or being an abuse of process.

ISSUES

5. The issues are as follows, (i) whether the plaintiffs’ representatives were required to obtain the consent of the people whom they represent and file evidence of that, before they could file their amended Statement, (ii), whether the filed Amended Statement is defective in form, (iii), whether the second plaintiff has standing, and (iv), whether the second and third plaintiffs have obtained the consent of the Attorney General to engage the services of a private law firm to act for them, as required under section 7(i) of the Attorney-General Act 1989 (AG Act).

CONSENT TO FILE AMENDED STATEMENT

6. The four (4) defendants submit that the Amended Statement that was filed on 2 August 2018 (Amended Statement) is an originating process. As such, they submit that the plaintiffs were required to show, before filing the Amended Statement, evidence of consent obtained from all the persons whom they claim to represent. The four (4) defendants submit that because no such evidence had been disclosed, the Amended Statement is void or defective and the proceeding is therefore incompetent and must be dismissed.

7. To me, I find the argument firstly to be partially incorrect. The Amended Statement or a statement that is filed under Order 16 Rule 3(2)(a) of the National Court Rules (NCR) is not a substantive proceeding that is equivalent to an originating process. A judicial review involves two (2) originating processes. The first is the originating summons which is filed first in time, to seek leave of the Court to apply for judicial review. See Order 16 Rule 3(2) of the NCR. The second originating process, subject to leave being granted, is a notice of motion that is required and is filed for the substantive judicial review application. See Order 16 Rule 5(1) of the NCR. See the case, East New Britain Provincial Government v. The Public Service Commissioner and Ors (2017) N6706. A statement that is filed under Order 16 Rule 3(2) is equivalent to or may be regarded as a pleading or a statement of claim, but not a writ of summons or an originating summons. See the case, Lawrence Sausau v. Joseph Kumgal (2006) N3253. Therefore, and in my view, there is no need to require or obtain specific instructions from individual members of the plaintiffs.

8. It is also my view that obtaining of instructions from the start of a judicial review proceeding or in any Court proceedings, should be sufficient. I can only imagine the chaos that would ensure if the National Court is to insist upon lawyers to show proof of instructions received from their clients every time they intend to file a court document in Court.

9. I...