N3298

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O S NO. 126 OF 2004

BETWEEN:

KENN NORAE MONDIAI
First Applicant

AND:

THE PNG ECO FORESTRY FORUM
INCORPORATED ASSOCIATION
Second Applicant

AND:

MINISTER FOR FOREST,
THE HONOURABLE PATRICK PRUAITCH
First Respondent

AND:

THE PAPUA NEW GUINEA FOREST AUTHORITY
Second Respondent

AND:

G.L NIUGINI LTD
Third Respondent

AND:

PNG FOREST INDUSTRY ASSOCIATION
Fourth Respondent

Waigani: Gavara-Nanu, J
2008: 13, 15, 18 February & 4 April

PRACTICE AND PROCEDURE – Judicial review – O 16 rr 5 (2) and 9 (1) – Application to be joined as parties to substantive application for judicial review – Relevant test under O 16 r 5 (2) – Whether applicants are persons "directly affected" – Relevant test under O 16 r 9 (1) – Whether applicants are "proper persons" – Application made under O 16 r 5 (2) is different to application made under O 16 r 9 (1 - Applicants cannot rely on both rules – Abuse of process.

Cases cited:

Andrew Nagari v. Rural Development Bank N3295
Jack Nou v. Richard Cherake N2539
Yanta Development Assoc. & Ors v. Piu Land Group Inc. & Ors SC798

Counsel:

N. Kubak, for Applicants 
J. Brooks, for Applicants/Respondents 

4 April, 2008 

1 GAVARA-NANU J: These are applications by 17 Incorporated Land Groups (ILGs) to be joined as parties to these proceedings. The names of all 17 applicants are found in their respective applications which were filed by way of Notices of Motion on 29 June 2006. The applications (documents) are numbered in sequence from 122 to 138. 

2	The applications are made pursuant to O 16 r 9 (1) of the National Court Rules. 

3	The matter first came before me on 13 February 2008. Other parties in the proceedings are represented by Mr Ian Shepherd and Mr Bill Frizzel. They both told the Court on 13 February, 2008, that they do not oppose the applicants being joined as parties. Thus, the only party opposing these applications is the applicants/respondents. As a result, Mr Shepherd and Frizzel were excused from further appearances in these applications. 

4	On 13 February, 2008, Mr Brooks raised an objection that appropriate rule under which the applicants should move their applications is O 16 r 5 (2) of the National Court Rules. He said the requirement for O 16 r 5 (2) to be invoked in applications of this kind has already been decided by the Court in Jack Nou v. Richard Cherake N2539, which has since been approved by the Supreme Court in Yanta & Ors v. Piu & Ors SC798. Thus, it was submitted that it is now settled that the relevant rule to invoke is O 16 r 5 (2). Mr. Kubak has conceded that O 16 r 5(2) is the appropriate rule to BE invoked by the applicants. 

5	Following Mr Kubak’s concession, the matter was recalled on 18 February 2008, for lawyers to advance further arguments, if any, particularly with respect to the application of O 16 r 9 (1) by the applicants. Despite his concession, Mr Kubak maintained that O 16 r 9 (1) is broad in its terms and argued that applicants are covered by the terms "as proper persons" in that rule and can invoke the rule to obtain the relief they are seeking i.e that they as "proper persons" be joined as parties in the proceedings and be heard at the hearing of the summons. In other words, the applicants still rely on O 16 r 9 (1) to obtain the relief they are seeking.
 
6	Mr. Brooks has submitted that all 17 applications should be dismissed for abuse of process, arguing that the decision by the applicants to continue to rely on O 16 r 9(1) is fatal as it amounts to an improper use of the Rules. He submitted that applicants having conceded that O 16 r 5 (2) is the correct rule for them to invoke, their applications are no longer on foot, because by their concession, the applicants have effectively abandoned their applications which are made pursuant to O 16 r 9 (1). 

7	Mr. Kubak however maintained that his clients have not abandoned their applications. He told the Court that they only abandoned the second relief they are seeking, namely that they be served with copies of all the relevant documents. He contended that applicants still seek the first relief in their respective applications, which is to be joined as parties as "proper persons" under O 16 r 9 (1) and be heard at the hearing of the summons. He then applied for all 17 applications to be adjourned to the hearing of the summons when the applicants will renew their applications. However, he also intimated that applicants may amend their applications before the hearing of the summons. 

8	In the alternative, Mr. Kubak submitted that if the Court refuses the applicants’ application to adjourn these applications, then the Court should grant the relief the applicants are seeking and order that they be joined as parties and be heard at the hearing of the summons as "proper persons" under O 16 r 9 (1). 

9	Mr. Brooks contended that to grant the relief the applicants are seeking would set a bad precedent because applications are being made under a wrong rule, which is a clear abuse of process. He further argued that applications being made under a wrong rule are not properly before me and they should be summarily dismissed.

10	I invited Mr Kubak to also address the Court on the affidavit material adduced by the applicants/respondents upon which Mr Brooks relied heavily to argue that all 17 applicants are not recognized ILGs, thus they lack the capacity to make these applications. Mr Brooks argued that this goes to the root of each application. He submitted that the affidavit evidence clearly shows that the Registrar of ILGs does not have any records of the 17 applicants being registered as recognized ILGs. Thus, it was argued that the certificates of recognition purportedly issued by the Registrar upon which the applicants have placed reliance are not authentic and the applicants/respondents having established that there are no records of these certificates being issued by the Registrar, they bear no weight and should be disregarded. 

11	Mr Kubak argued that the Court should nonetheless take judicial notice of the certificates as evidence that all 17 applicants are duly recognized ILGs.

12	It is appropriate that I set out O 16 r 5 (2) and O 16 r 9 (1) in determining the issues before me.

13	O 16 r 5 (2) provides:

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

(2)	The summons 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 therein, the summons 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.

14	O 16 r 9 (1) provides:

9.	Hearing of application for judicial review (UK 53/9)

(1)	On the hearing of any summons under Rule 5, any person who desires to be heard in opposition to the summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with summons.

15	Issue regarding application of O 16 r 9 (1) having been raised first, I will discuss it first. The rule allows a party or a person to be heard by the Court in opposition to the summons on an application being made by that person even though the person may not have been served with summons, if the person appears to the Court to be a "proper person" who should be heard in opposition to the summons. Thus the test under this rule is whether the person applying to be heard is a "proper person" to be heard in opposition to the summons. O 16 r 5 (2) on the other hand provides that summons must be served on all persons who are "directly affected" by the summons. Thus the test under this rule is whether the person applying to be served with summons is a person who is "directly affected" by the summons. See, Jack Nou v. Richard Cherake (supra). The requirement for the service of the summons on the person directly affected is mandatory. Implicit in the rule is that the person directly affected would be served with the summons upon an application being made by the person. Further implicit in the rule is that the person directly affected would be joined as a party to the proceedings upon his application being granted. 

16	It is not in dispute that the applicants want to be joined as parties and be heard at the hearing of the summons as "proper persons" under O 16 r 9 (1). In this regard, the Supreme Court has in approving the decision in Jack Nou v Richard Chirake (supra), held that a person wishing to be joined as a party in an application of the kind now before the Court, must invoke O 16 r 5 (2). I should say that I respectfully agree with such application of O 16 r 5 (2), quite apart from the fact that as a single judge, I am bound to follow the decision. That being said, the applicants having decided to continue to rely on O 16 r 9 (1), the applications are not properly before me. 

17	The applicants can as a matter of law only invoke O 16 r 5 (2), if they want to be heard and for their applications to be properly before the Court. But even then, before they can be heard, they must first show that they have the capacity to make these applications by showing that they are duly registered recognized ILGs, then, they must, as required by the rule, prove that they are persons or entities "directly affected" by the summons. See Jack Nou v. Richard Cherake (supra). The applicants carry the ultimate onus to satisfy these requirements which are mandatory. They have failed to satisfy these requirements. Then the question that arises is, whether I should grant the application by the applicants to adjourn their applications to the hearing of the summons. 

18	I have come to the conclusion that I cannot adjourn the applications to the hearing of the summons. There are three compelling reasons for coming to this conclusion. First, the applicants still rely on O 16 r 9 (1) to make their applications. This is a wrong provision to invoke, and there is a clear misapprehension of the rule by the applicants, which means the applications are an abuse of process and are therefore not properly before the Court. This factor alone invites the Court to use its inherent jurisdiction to summarily dismiss the applications. In Andrew Nagari v. Rurual Development Bank N3295, this Court made this very point. The Court said:

"The phrase ‘abuse of process’ connotes that the process of the Court must be used properly and bona fide and are not to be abused. Thus, where the Court’s machinery is improperly and incorrectly used, the Court has the duty to prevent such abuse of its process."
 
19	Second, even if I was minded to grant the adjournment the applicants are seeking, on the evidence before me, the applicants have not shown that they have the capacity to make these applications. There is compelling evidence from the applicants/respondents that there are no records in the Office of the Registrar of the ILGs that applicants are registered recognized ILGs. There is an affidavit of search to this effect. This must seriously put into question the authenticity of the purported certificates of recognition relied upon by the applicants. Thus, urging by Mr Kubak for me to give judicial notice to these purported certificates of recognition has no legal basis. It suffices to say that the certificates are not the kind of documents to which this Court can give judicial notice. This means I must give weight to the evidence by the applicants/respondents that applicants are not recognized ILGs.

20	Third, the applicants carry the ultimate onus to prove that they are directly affected by the summons. They have as I indicated above, failed to discharge this onus. There is no evidence at all before me, even to suggest that they may be directly affected by the summons. Thus, even if I was to grant the adjournment the applicants are seeking, and thus give them an opportunity to amend their applications before the hearing of the summons, including the possibility of them eventually deciding to abandon O 16 r 9 (1) and rely solely on O 16 r 5 (2), such amendment will still not save the applications. The end result is it will serve no purpose in adjourning the applications. The applicants’ application to adjourn their applications to the hearing of the summons therefore has no merit. 

21	It must be remembered that the Rules are designed to enhance and protect rights of the parties and to ensure that the matters coming before the Court are disposed promptly and fairly. For this reason, and in the interest of justice, that Rules include prohibitions against abuse of the process of the Court and it is the general concern of the Court always that its Rules are properly used to achieve finality in litigation promptly and fairly. Thus any use of the Rules to unnecessarily delay the prompt and fair disposal of matters would run counter to the purpose for which the Rules are designed. The applicants are doing just that, i.e by their application for adjournment they are using the Rules to unnecessarily delay the prompt and fair disposal of this case.

22	For the foregoing reasons, the application by the applicants to adjourn these applications to the hearing of the summons is refused and all 17 applications are dismissed with costs. 

______________________________________________

Nobert Kubak & Co Lawyers: Lawyers for the Applicants
Gadens Lawyers: Lawyers for the Respondents