Ken Norae Mondiai and Png Eco Forestry Forum Inc v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority 2006 N3061

• Jurisdiction: Papua New Guinea
• Judge: LAY J
• Judgment Date: 04 July 2006
• Court: National Court
• Docket Number: OS (JR) NO. 259 OF 2006
• Year: 2006
• Judgement Number: N3061

Full Title: OS (JR) NO. 259 OF 2006; Ken Norae Mondiai and Png Eco Forestry Forum Inc v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority 2006 N3061

National Court: LAY J

Judgment Delivered: 4 July 2006

N3061

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 259 OF 2006

KEN NORAE MONDIAI

First Plaintiff

AND

PNG ECO FORESTRY FORUM INC.

Second Plaintiff

WAWOI GUAVI TIMBER COMPANY LIMITED

First Defendant

PAPUA NEW GUINEA FOREST AUTHORITY

Second Defendant

Waigani: Lay J.

2006: 19 May, 4 July

PRACTICE AND PROCEDURE-National Court Rules O.5 r.8-application to join as a plaintiff-considerations-whether applicant has legal right to enforce-whether applicant could have a cause of action-whether applicant has “sufficient interest”.

Facts

The Applicant Ombudsman Commission of Papua New Guinea applied to be joined as a party to these judicial review proceedings. The Commission had prepared a report into matters raised by the substantive proceedings and had made recommendations. There was an allegation that the recommendations of the report had not been followed by the Second Defendant.

Held

The Applicant was created by the Constitution and Organic Law. Its’ powers must be found in those constitutional provisions. Its’ powers were to investigate, report and recommend. The Court could not extend those powers. It was a matter for the Parliament. There is no legislative authority for the Ombudsman to join in the action as a party with sufficient interest. The Ombudsman Commission’s power of enforcing the recommendations contained in its’ reports is confined by Constitution s.219(6) to advertising, and recommendations to the Parliament and the relevant authorities. The Ombudsman Commission could not bring proceedings, nor did it have any legal right to enforce. It did not have a “sufficient interest” within its constitutional functions. It could not be made a party to the proceedings. It is a matter for the trial judge as to whether the Ombudsman Commission should be heard on the substantive review pursuant to O.16 r.9(1) although that Rule permits non parties to be heard in opposition, not in favour of the Summons.

Cases Cited

PNG Printing Co Pty. Ltd Andrew Thompson [1993] PNGLR 81; CBS Inc. v Ranu Investments Pty. Limited [1978] PNGLR 66; Pinpar Development Corporation v TL Timber Pty. Limited [1999] PNGLR 139; AGC (Pacific) Limited v Sir Albert Kipalan & 4 Ors N1944; SCR No.4 of 1980; Re Petition of MT Somare [1981] PNGLR 265; R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378; The Ombudsman Commission and Ila Geno Chief Ombudsman and others v National Parliament and others SC721;

RULING ON APPLICATION BY OMBUDSMAN COMMISSION TO BE JOINED AS PLAINTIFF

Counsel

Mr. Nemo Yalo, for the Applicant Ombudsman Commission

Mrs. T. Nonggor, for the First and Second Plaintiffs

4 July 2006

1. LAY J.: The Ombudsman Commission of Papua New Guinea applies to be joined as Fourth Plaintiff in these proceedings. The First and Second Plaintiffs, who were the only plaintiffs at the time of the application, consent. At the time that this application was moved I heard and allowed the application of John Denaiya to be joined as Third Plaintiff. I asked for all interested plaintiffs to make written submissions in respect of this application as I was concerned that the joinder of the Ombudsman Commission as a Plaintiff may be a breach of the Constitution Section 219(6) which provides that:

"Except as provided by or under Division III .2 (leadership code), the Commission's powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice."

2. The substantive proceedings concern the implementation of a decision by the Second Defendant by which the First Defendant may receive by way of extension to a Timber Permit, a timber concession of not quite twice the size of the original concession area. The Plaintiff’s claim is that the extension was granted unlawfully in breach of many provisions of the Forestry Act.

3. The Ombudsman Commission prepared a report into the matter and made recommendations to the Second Defendant which it is alleged the Second Defendant has not implemented.

4. An application to join a party to proceedings is made under Order 5 Rule 8 of the National Court Rules which provides:

8. Addition of parties. (8/8)

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

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for

the further conduct of the proceedings.

(2) A person shall not be added as plaintiff without his consent.

5. Joinder can be permitted to claim a legal right: See PNG Printing Co Pty. Ltd. v Andrew Thompson [1993] PNGLR 81. Another test is whether or not there could be a cause of action against the proposed party: See CBS Inc. v Ranu Investments Pty. Limited [1978] PNGLR 66 which was followed in Pinpar Development Corp. v TL Timber Pty. Ltd [1999] PNGLR 139. It is ordinarily desirable to join all parties who might have causes of action against each other arising out of the same facts, to avoid a multiplicity of actions: See AGC (Pacific) Ltd. v Sir Albert Kipalan & 4 Ors N1944.

6. Because the substantive proceedings are by nature a judicial review conducted pursuant to the provisions of Order 16 of the National Court Rules, whether the joinder of the Ombudsman Commission is "necessary" can be tested by examining who should or can be a party to such proceedings. To be a plaintiff in proceedings the applicant ought to have sufficient interest in those proceedings to bring proceedings in their own right. Order 16 Rule 3(5) provides that “the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

7. Counsel for the First and Second Plaintiffs has referred me to the case of SCR No. 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265. That case was concerned with the constitutionality of a piece of legislation and according to the head note, the five members of the bench held that every citizen has standing to raise the constitutionality of an Act of the Parliament. All members except Myles J. specifically found that the common-law rules of standing were not directly applicable because they were developed under a different constitutional background to the constitutional framework which applies in this country. In my view the true ratio decidendi of that case is not relevant to a common-law action for judicial review. However, in the course of his judgment, Kapi J. (as he then was), while discussing the common-law position, at page 294, referred to the judgment of Lord Denning R v In land Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All E.R. 378 where Lord Denning approved the principles stated by Professor H. W. R. Wade Q. C. in Administer Law (4th ed. 1977, page 608) where he said:

“(It (law) should recognize that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interested than a regard for the due observance of the law."

8. And at page 295 of his judgment Kapi J. quotes again from the judgment of Lord Denning at page 391 where he said "... But a man who is genuinely concerned can point, objectively, to something that has gone wrong and should be put right. He should be heard."

9. And also on page 295 of his judgment Kapi J. said:

"The new rule would be that the applicant must have sufficient interest in the matter.... As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning... I would leave it to the courts to develop the application of the rule in individual cases."

10. The Somare Case was dealing with the standing of individuals, not the standing of the Ombudsman Commission as a constitutional institution.

11. In the case of The Ombudsman Commission and Ila Geno Chief Ombudsman and others v The National Parliament and others SC 721 (Kapi C.J., Injia DCJ, Salika J, Jalina J, Sakora J) the court said:

"We consider that the Ombudsman Commission is a creature of constitutional laws and its functions and standing should be a matter left to be decided by legislative act in the National Parliament. We believe Scheduled 2.4 places this restraint on the power of the Court from formulating or developing the underlying law in some circumstances if the Court considers that it is not proper to do so by judicial act. In State v Wik Kor [1983] PNGLR 24 Kapi DCJ (as he then was) refused to formulate a rule of law for this very reason. So for the same reason we decline to formulate a rule of law relating to standing of...