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Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] PGNC 30; N4638 (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 proceeding.

11. As to whether any relief is sought against Woodbank, no relief is sought.

12. Timbers PNG opposes the joinder application as it makes no claim against Woodbank. Further, Timbers PNG submits that Woodbank does not have a dispute with Timbers PNG and is not privy to the dispute between the parties in this judicial review proceeding.

13. As to whether Woodbank will be affected if Timbers PNG is successful in this proceeding, it will likely be affected, but indirectly and not directly. This is because of its purported logging and marketing agreement with Sogeram DC and not because of any dealings with Timbers PNG.

14. As to whether Woodbank's joinder is necessary to satisfy any orders that are likely to be made in the proceeding, as no claim is made against Woodbank, it's joinder is not necessary for this purpose.

15. Given the above, I am not satisfied that Woodbank has satisfied the requirements of Order 5 Rule 8 (1) National Court Rules concerning the addition of parties.

Orders

16. The orders of the Court are:

a) the relief sought in the notice of motion of the applicant filed 14th February 2012 is refused.

b) the applicant shall pay the costs of the plaintiff of and incidental to this application.

__________________________________________________________

Warner Shand Lawyers: Lawyers for the Plaintiff
Papua New Guinea Forest Authority: Lawyers for the First Defendant
Young & Williams Lawyers: Lawyers for the Second Defendant
Bradshaw Lawyers: Lawyers for the Applicant