N8028
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 626 of 2019

MINERAL RESOURCE CMCA HOLDINGS LIMITED
Plaintiff

V

HONOURABLE ALFRED MANASE in his capacity as MINISTER FOR JUSTICE AND ATTORNEY GENERAL
First Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2019: 20thSeptember

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Joinder Application Order 5 Rule 8  – Whether sufficient interest to join –consolidation of proceeding – necessary for an effective determination of issues raised – material filed support joinder – balance discharged on probabilities – application granted – costs in the cause.

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of Motion Order 12 r 40 – frivolity vexatious –abuse of process – substantive matter – inter parties hearing – motion not granted – cost in the cause.

Cases Cited:
Papua New Guinea Cases

Application under section 155 (2) of the Constitution Between Michael Wilson and Clement Kuburam trading as CK Valuers and Realtors SC Review No. 30 of 2014; SC1489
AGC (Pacific) Ltd v Kipalan[2000] PGNC 4; N1944 (24 February 2000).
Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea [2000] PNGLR 166
Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero, and Pheobe Sangatari as Ombudsman Commissioners and the Ombudsman Commission SCOS No. 02 of 2011; SC1118
Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd [2018] PGSC 95; SC1752 (24 December 2018)
Marape v Ok Tedi Fly River Development Foundation Ltd [2018] PGSC 96; SC1753 (24 December 2018)
Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd [2019] PGSC 32; SC1805 (9 May 2019)
Mek Kuk v Independent State of Papua New Guinea SCA No. 123 of 2012
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010).
SCA 157 of 2018 and SCA 158 of 2018Hon. James Marape, in his capacity as Minister for Finance First appellant and The National Executive Council Second Appellant and Harry Kore in his capacity as Secretary for Minerals Policy & Geohazards Management Third Appellant and Dr Ken Ngangan in his capacity as Secretary for Department of Finance and Dairi Vele in his capacity as Secretary for Department of Treasury Fifth Appellant and Hakaua Harry in her capacity as Secretary for Department of National Planning Monitoring sixth appellant and The Independent State of Papua  New Guinea seventh appellant and Ok Tedi Fly River Development Foundation Limited respondent

Overseas case cited:

Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA,

Counsel:

G. Shepherd, for the Applicant
No appearance for Respondents
					RULING 
27thSeptember, 2019
1.	MIVIRI, J: This is the ruling of the Court on the Notice of Motion of the applicant Ok Tedi Fly River Development Foundation Limited dated the 17th September 2019 invoking the National Court Rules, “the rules” Order 5 Rule 8 (1), Order 16 Rule 5 (2), Order 16 Rule 13 (6) (3) (c) and the Constitution Section 155 (4) to join the proceedings as third defendant. Order 5 Rule 8 (1) is in the following terms;-

“Joinder of parties generally. (8/2)
Two or more persons may be joined as plaintiffs or defendants in any proceedings—
(a)  	where—
(i)      if separate proceedings were brought by or against each of them, as 	the case may be, some common question of law or of fact would arise in all 	the proceedings; and
(ii)     all rights to relief claimed in the proceedings (whether they are joint, 	several or alternative) are in respect of or arise out of the same transaction 	or series of transactions; or
(b) 	where the Court gives leave to do so.
Facts
2.	The facts that have been submitted filed in support per the affidavit of Steven Bagari sworn 17th September 2019 filed the same day gives gravity to the assertion for joinder. This view is not without merit in principle because the Chief Justice in the Supreme Court referenced SCA 157 of 2018 and SCA 158 of 2018 between Hon. James Marape in his capacity as Minister for Finance First appellant and The National Executive Council Second Appellant and Harry Kore in his capacity as Secretary for Department Minerals Policy & Geohazards Management Third Appellant and Dr Ken Ngangan in his capacity as Secretary for Department of Finance and Dairi Vele in his capacity as Secretary for Department of Treasury Fifth Appellant and Hakaua Harry in her capacity as Secretary for Department of National Planning Monitoring sixth appellant and The Independent State of Papua New Guinea seventh appellant and Ok Tedi Fly River Development Foundation Limited respondent on the 30th July 2019 went to the length and breadth of this matter. And there were serious matters of ethics and professionalism and law which came out from that decision that must be addressed inter parties. The applicant has drawn this history of the proceedings leading to the current. It is a culmination of OS 75 of 2018 filed by Ok Tedi Fly River Development Foundation Limited. The present relate to the challenge of the decision by the Attorney General then to withdraw instructions from Corr Chambers Westgarth and to instruct Twivey Lawyers who discontinued the Supreme Court Appeals. In my view it is a grave matter deserving finality but not in haste nor by emotions but by law and accordingly not without. The People of Western Province in particular of the Fly River Delta and those affected by this matter must have justice served by law not without. It is pertinent that the parties amicably process out to finality. The State must serve its people and resources of the people must in all fairness be of the people not without. Money at the heart of this dispute is in the bank and cannot in all fairness serve its purpose, if there is litigation on end without the people who are due it is denied.

3.	Two other decision come to light by the annexure “SB 1 to SB 25” of Steven Bagari's affidavit published decision on record and online, firstly Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd [2018] PGSC 95; SC1752 (24 December 2018); together with Marape v Ok Tedi Fly River Development Foundation Ltd [2018] PGSC 96; SC1753 (24 December 2018).The lawyers on record are same. Yet again another decision canvassing a related matter is Mineral Resources CMCA Holdings Ltd v Ok Tedi Fly River Development Foundation Ltd [2019] PGSC 32; SC1805 (9 May 2019) per Justice Makail. These all point to the need to have the applicant joined and all parties including the original parties in these proceedings resolved once and for all the issues raised between all here.
Law
4.	I am satisfied that the Applicant has met the test for Joinder of Parties given; (a) He has sufficient interest in the proceedings; and (b) his joinder as a party is necessary to ensure that all matters in the proceedings can be effectively and completely adjudicated upon, PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). 

5.	The underlying rational is, "It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...It is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process. In all cases of joinder, whether simply of causes of action or also parties, the Court retains the discretion to join or sever (if already joined) if the interests of justice demand so. .
There is generally much merit in joining all possible defendants to avoid bringing separate proceedings against each and failing against each. On a tactical level, if all possible defendants are joined, often each will tend to run a case designed to show that another defendant is liable. The rules also provide for alternative plaintiffs if there is some issue as to proper plaintiff. For example, in some commercial litigation it may not be certain which legal entity actually entered into a transaction, AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 (24 February 2000).”In my view this is applicable here on all fours and paves the way for all to contribute to the disposal of this matter.

6.	In the other grounds in the notice of motion given their gravity for and against they are substantive and underlying to this cause of action. It is important that they are heard interparty and effectively determined once and for all. Hence the application to dismiss this proceeding will not be granted because the first step is to get the applicant as third defendant in the proceedings. He is now granted that motion. He is now part of the proceedings he can proceed to file and serve the notice of intention to defend the matter including all other material that he seeks to rely on and serve all including the motion to dismiss the proceedings pursuant. Particularly in the light of the fact that the parties initially to this proceeding have got out a consent order for leave for judicial review. That is only three days old 17th September 2019 to 20th September 2019 before this proceeding it is therefore not conducive nor appropriate to adhere to the substantive motion sought to dismiss for abuse and the like set out above. The parties in the original action have a right to be heard. A decision as drastic as dismissing the cause of action they have now got a consent order without hearing them would be serious injustice and error of law in my view.

7.	Applicant relies on Mek Kuk v Independent State of Papua New Guinea SCA No. 123 of 2012,and Grand Chief Sir Michael Thomas Somare v Chronox Manek, John Nero, and Pheobe Sangatari as Ombudsman Commissioners and the Ombudsman Commission SCOS No. 02 of 2011; SC1118, as authority to dismiss the proceedings as an abuse of process. Both cases have assistance and representation by both sides of the dispute in court and on record. That is not the case here it is not an interlocutory application or an application by the way before the final or the substantive order sought. Dismissal is substantive as it will terminate the proceedings and in the light of the consent orders taken out 17th September 2019 where leave has been granted by this court for judicial review on the decision to discontinue the proceedings by then Attorney General Honourable Alfred Manase. It would be proper in my view to have inter party hearing to determine and adjudicate to finality. The background facts raised very serious and grave matters that must be resolved in the interest of justice of all both for and against.

8.	I am deterred by that fact after consideration of the further cases Application under section 155 (2) of the Constitution Between Michael Wilson and Clement Kuburam trading as CK Valuers and Realtors SC Review No. 30 of 2014; SC1489 and Don Pomb Pullie Polye v Jimson Sauk Papaki and Electoral Commission of Papua New Guinea [2000] PNGLR 166 sighted by the applicant it would be proper to have a inter party hearings to tie the applicant down with the measures that the Supreme Court has taken in those proceedings. Misconduct of lawyer’s Professional Negligence conduct unbecoming and dilatory or contumelious is a very serious matter and should comply with the minimum under section 59 of the Constitution to entail with the grave consequences that are there. In this case it would befall if there were appearance by the original parties to this court. It is not the case and invitation by the applicant will not be heeded by that fact despite the affidavit of service on file. The discretion to exercise must be satisfied on very good basis. The facts here do not sway to the required balance given.

9.	The joinder application is an interlocutory application not the substance of this Judicial Review proceeding what is intended by the joinder is the contention of the applicant that he is affected by this proceeding. He ought to be joined as a party because he is a person who joinder is necessary to ensure that all matters in this dispute in these proceedings may be effectually and completely determined and adjudicated on. That is the language of Order 5 rule 8 (1) the rules.

10.	The application has been moved today 20th September 2019 without appearance from either Corrs Chambers located level 2 MRDC haus together with the State both of whom have been served on the19th September 2019 affidavit of services by Douglas Ure legal clerk with Young and Williams for the applicant. The State by Jack Obaha level 2 MRDC haus research clerk of Corrs Chambers Westgarth Lawyers. 

11.	Further Notice of intention to defend by the applicant has been served on Corrs Chambers Westgarth Lawyers 19th September 2019 by applicant. He is not formally a defendant in the proceedings because leave has not been granted for the joinder. It will be cured if leave is granted. Therefore, its filing and service has no consequence in law until the applicant is granted leave to appear as third defendant. That maybe the reason for the non appearance of the firm Corrs Chambers Westgarth Lawyers at this proceeding. And further it may be due to the Consent Orders entered the 17th September 2019 where leave has been granted by this court for judicial review on the decision to discontinue the proceedings by then Attorney General Honourable Alfred Manase. To my mind that order is just three days to this application by the applicant who is not a party originally in the matter. It would be proper and in the interests of Justice to allow Joinder but to have a full inter party hearing in respect of the substantive motions sought of abuse of process and dismissal pursuant and costs on indemnity basis and declaration of being a vexatious litigant. This is not a case where it is years and nothing has been done although the proceedings have a history but these are matters which must be heard inter parties.

12.	Order 16 Rule 13 (6) (3) (c) relating to directions hearing and would come into play now that the motion for joinder has been allowed and granted. I now make the following orders pursuant:-

(a)	Leave is granted the applicant to join the proceedings OS (JR) 626 of 2019 as third defendant. And the proceedings will be amended accordingly to read.
(b)	Applicant will take out the orders and serve them on the plaintiff, the first and second defendants within 3 days.
(c)	Applicant will formally file a notice of intention to defend and to have it served on the plaintiff the first and second defendants within 3 days.
(d)	Applicant will formally file and serve the notice of motion seeking to dismiss the proceedings for abuse and for declaration of plaintiff as a vexatious litigant and costs on an indemnity basis and all related affidavits upon the plaintiff first and second defendants within 14 days.
(e)	The plaintiff and the first and second defendants are granted liberty to file further affidavits in response within 7 days or as directed upon appearance.
(f)	The matter will return to court at the next directions hearing for further directions.

13.	For the reasons set out above cost will be in the cause.
Orders Accordingly.
__________________________________________________________________

Young &Williams Lawyers: Lawyer for the Plaintiff/Applicant		
No appearance for the Defendant