Simon Kauba v NEC

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 16 July 2014
• Citation: (2014) N6025
• Court: National Court
• Year: 2014
• Judgement Number: N6025

Full : OS (JR) NO 477 OF 2014; Simon Kauba v National Executive Council and The Independent State of Papua New Guinea (2014) N6025

National Court: Makail, J

Judgment Delivered: 16 July 2014

N6025

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 477 OF 2014

BETWEEN

SIMON KAUBA

Plaintiff

AND

NATIONAL EXECUTIVE COUNCIL

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Makail, J

2014: 21st October & 2015: 16th July

PRACTICE & PROCEDURE – Application for joinder – Joinder of parties – Addition of parties as defendants – Application to amend – Amendment of notice of motion and statement in support – Counter application for dismissal of proceeding – Jurisdiction of – Legal capacity of party – Discretionary – Principles of – National Court Rules – Order 16, rules 5 & 13(6)(4) and Order 5, rule 8(1).

Cases cited:

Andrew Yamanea & Ors v. Dr Vele Pat’Ialava & Ors: OS No 70 of 2014 (Unnumbered & Unreported Judgment of 24th April 2014)

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

Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Nancy Tambe v. Linda Tamsen (2004) N2714

Morobe Provincial Government v. Tropical Charters Limited (2010) N3977

Timbers PNG Limited v. PNG Forest Authority (2012) N4638

Dynasty Estates Limited v. Nambawan Super Limited & Ors (2015) SC1427

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

Counsel:

Mr Wesley Bigi, for Plaintiff

Mr Nicholas Tame, for Defendants

RULING ON APPLICATION FOR LEAVE TO AMEND AND DISMISSAL OF PROCEEDINGS

16th July, 2015

1. MAKAIL, J: By notice of motion filed on 26th September 2014, the Plaintiff seeks to join the Prime Minister, Hon. Peter O’Neill and the Attorney-General, Hon. Ano Pala as Defendants to the proceeding and consequent on that, leave to amend the notice of motion and statement in support pursuant to Order 16, rule 3(2)(a) of the National Court Rules.

2. The Defendants submit the application by the Plaintiff is made as a reaction to their submissions in opposing an application for stay, that the National Executive Council (“NEC”) has no legal capacity to be sued, and that the subject decision sought to be reviewed was not made by the NEC but by the Head of State, acting with and in accordance with the advice of the NEC, and therefore, that the NEC was wrongly sued when the correct party to be sued is the Attorney-General in his nominal capacity for and on behalf of the Head of State. They rely on an ex tempore ruling of the National Court in the case of Andrew Yamanea & Ors v. Dr Vele Pat’Ialava & Ors: OS No 70 of 2014 (Unnumbered & Unreported Judgment of 24th April 2014) where it was held that NEC has no legal capacity to be sued.

3. In response to the application for joinder, the Defendants, by notice of motion filed on 24th September 2014 apply to have the proceedings dismissed on the basis that:

3.1. the First Defendant (NEC) has no legal capacity, hence, the proceeding against it is incompetent; or

3.2. if the First Defendant (NEC) has capacity, it is wrongly sued because it did not make the decision subject of this proceeding.

4. The Plaintiff seeks an order for joinder under Order 16, rule 13(6)(4) and Order 5, rule 8(1) of the National Court Rules and Section 155(4) of the Constitution. The issue arises as to whether the Court has jurisdiction under these provisions to order a joinder in this proceeding. It is submitted for the Defendants that the Court has no jurisdiction under these provisions to order a joinder.

5. It is submitted Order 5, rule 8(1) (supra) does not apply because in Attorney-General Michael Gene v. Hamidian Rad [1999] PNGLR 444, the Supreme Court held that the processes and rules of judicial review under Order 16 of the National Court Rules “...... is an exclusive procedure provided by the Rules.” Then in Peter Makeng v. Timbers (PNG) Limited (2008) N3317, the National Court held that:

“18. It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 278. Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16.”

6. The Defendants submit that Order 5, rule 8(1) is not expressly adopted under Order 16. Thus, it does not apply and the application is misconceived. If the Plaintiff had intended to join the Prime Minister and the Attorney-General, he should have brought it to the attention of the Court at directions hearing. This is because when Order 16, rule 5(2) and Order 16, rule 13(6)(4) are read together, they grant the Court discretion at directions hearing to join interested or affected parties that have been served the notice of motion for the application for judicial review. In this case, there is no evidence that the Plaintiff had served the notice of motion on the Prime Minister and the Attorney-General. For this further reason, these provisions do not apply.

7. Furthermore, if Rule 5(2) permits joinder, it would effectively introduce new parties with new cause of action for which leave for judicial review has not been sought and granted. This was the view expressed by the National Court in Nancy Tambe v. Linda Tamsen (2004) N2714. Similarly, where a proposed amendment of pleading introduces a new cause of action, it will not be permitted: Morobe Provincial Government v. Tropical Charters Limited (2010) N3977.

8. The Plaintiff submits that the Defendants’ submission is misconceived. Order 5, rule 8(1) is applicable. It grants jurisdiction to the Court to order joinder. The joinder of the Prime Minster and the Attorney-General is necessary to ensure that all matters in dispute between the parties in the proceeding can be effectively and completely adjudicated upon.

9. I agree generally with the proposition that Order 16 provides an exclusive procedure for proceedings commenced under Order 16 which are commonly referred to as judicial review proceedings. The cases cited by the Defendants support the proposition that Order 5, rule 8 has no application in judicial review proceedings. In Timbers PNG Limited v. PNG Forest Authority (2012) N4638, the point on the application of Order 5, rule 8(1) in judicial review proceedings was considered. On the authority of Attorney-General Michael Gene and Peter Makeng, the Court held that Order 5, rule 8 has no application. However, the Court went further and applying the principles applicable to joinder, held that the Applicant failed to meet the tests for joinder and refused the application for joinder.

10. Thus, it would seem the application of Order 5, rule 8 in judicial review proceedings is still open to debate. But I do not think it is necessary for me to apply Order 5, rule 8 in this case because, in my view, the absence of a specific Rule does not remove the Court’s power to order joinder of parties. The issue of joinder is addressed differently from ordinary civil proceedings and it is adequately addressed in Order 16, rule 5. This rule states:

“5. Mode of applying for judicial review. (UK. 53/5)

(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.

(2) The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.

(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Notice of Motion.

(6) If on the hearing of the Notice of Motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person.”

11. A proceeding commenced under Order 16 begins with leave: Order 16, rule 3(1). An originating summons is commenced for the purpose of obtaining leave: Order 16, rule 3(2). After grant of leave, a notice of motion is used to commence the application for judicial review: Order 16, rule 5(1). According to Rule 5(2), the...