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 notice of motion must be served on all persons who are directly affected. In my view, this is where the issue of joinder comes into consideration. This Rule places an obligation on the Applicant for judicial review to serve the notice of motion (application for judicial review) on persons who have an interest in the proceeding. This must be done before the hearing of the application for judicial review. The purpose of this Rule is to bring the application for judicial review to the notice of all "persons directly affected" by the proceedings. 

12.	The obligation to serve does not stop there. It remains right through the proceeding until the hearing of the application for judicial review because under Rule 5(6), if the Court is of the 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. In my view, this Rule gives the Court discretion to order the Applicant for judicial review to serve on any person in the Court's opinion, should have been served the notice of motion. In my respectful view, the test is the person or party must be directly affected by the proceedings. If it is so satisfied, it can order that the person or party be served the notice of motion. 

13.	Upon service of the notice of motion, two things may occur: First, the person may wish to be heard in the application for judicial review or secondly, may refrain from being heard: Dynasty Estates Limited v. Nambawan Super Limited (2015) SC1427. In the case of the former, Rule 5(2) and (6) are silent on how the person may be heard. They do not express that the person must make an application to join before being heard nor do they say that upon being served, he is entitled as of right to be heard without being joined. In the Dynasty Estate case, the Supreme Court had expressed a view that the person may either apply to join in the proceeding or appear and be heard without being formally joined. Nevertheless, the rationale behind these Rules is that they are intended to ensure that all persons directly affected by the proceeding are given the right to be heard. 

14.	The right to be given notice of hearing under Order 16, rule 5(2) to anyone with direct interest in the proceeding or as someone directly affected by the proceeding or the subject matter in the proceeding was described as mandatory in Yanta Development Association v. Piu Land Group Inc. (2005) SC798. 

15.	I agree with the Defendants' submission that Order 16, rule 5(2) must be read together with Order 16, rule 13(6)(4) to give meaning and effect. But I do not accept their submission that because the Prime Minster and the Attorney- General were not served the notice of motion, these Rules do not apply. In my view, these Rules give the Court wide discretion at directions hearing to order, amongst other things, joinder of parties and amendment of grounds of review. Given this wide discretion, I would suggest upon service of the notice of motion and for completeness, "persons directly affected" by the proceedings may apply to join the proceedings. This does not remove the discretion the Court has to, on its own motion, order joinder of parties. 

16.	In the present case, the Defendants' submission to the extent that the First Defendant does not have legal capacity to be sued is correct. But I do not think that the First Defendant should be isolated from the conflict between the parties. Its involvement must be considered in the context of the decision subject of the proceeding. The Plaintiff was dismissed from office as Deputy Commissioner of Police (Operations) as a result of an executive decision. The Head of State acting with and in accordance with the advice of the First Defendant made that decision. That decision is being questioned. The Prime Minister is the Chairman of the First Defendant and there is a nexus between the First Defendant and the Head of State. As Chairman of the First Defendant, the Prime Minister is a person directly affected by the proceeding and needs to be served. There is no issue that the First Defendant has been served. This is sufficient compliance with the requirement of service and there is no need to serve the Prime Minister, save only his joinder in his capacity as Chairman to the proceeding.

17.	The correct party to be sued is the Attorney-General who shall be the nominal Defendant on behalf of the Head of State and Governor-General. This position is clearly expressed in Section 3 of the Claims By and Against the State Act, 1996 which states:

"3.	Suit against the Head of State.

A person making a claim against the Head of State, or Governor-General, acting on advice, shall, in the proceedings, make such claim against the Attorney-General who shall be the nominal defendant on behalf of the Head of State and Governor-General."

18.	As it is the Defendants who take issue with the legal capacity of the First Defendant to be sued, they did not raise it at the directions hearing. They did not and the judicial review proceeding has progressed to a stage where it is ready to be set down for trial. The Defendants did not submit that the joinder of the Prime Minister and the Attorney-General would be adverse to their defence of the proceeding. Their submissions and grounds for opposing the joinder application and for supporting their dismissal application are based on the Court's lack of jurisdiction to grant a joinder based on Order 5, rule 8. 

19.	In my view, the First Defendant's lack of legal capacity and its naming as a Defendant in the proceeding is a significant error but it can be rectified because it has not been shown if the joinder and/or amendment will be adverse to the Defendants. It is also my view that it is not too late to correct the error. The Prime Minister and the Attorney-General should be joined to the proceeding so that they may be heard at trial. Consequent on them being joined, the notice of motion and the statement in support will need to be amended to accommodate the joinder as well as correcting the body or authority whose decision is subject of the judicial review proceeding. Contrary to the Defendants' submission that a joinder would effectively introduce new parties with new cause of action for which leave for judicial review has not been granted, Order 16, rule 6(2) permit an Applicant for judicial review to amend the statement in support. Further, the amendment does not introduce a new cause of action. 

20.	For these reasons, I dismiss the Defendants' application to dismiss the proceedings and grant leave to the Plaintiff to join the Prime Minister in his capacity as Chairman of the First Defendant and the Attorney-General as nominal Defendant to the proceeding. I also grant leave to the Plaintiff to amend the statement in support and the notice of motion to reflect the changes based on the draft statement in support and notice of motion as per annexures "A" and "B" to the affidavit of Mr Wesley Bigi filed on 26th September 2014. I further order that the Plaintiff serve the amended documents on the Defendants within 14 days of this order. Finally, the matter is adjourned to Tuesday 04th August 2015 at 9:30 am for directions hearing. Costs of both applications shall be in the cause.

Ruling and orders accordingly. 
______________________________________________________________

Henaos Lawyers: Lawyers for the Plaintiff
Nicholas Tame Lawyers:  Lawyers for the Defendants