N8070
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 491 of 2019

GEI GUNI RAGA Provincial Administrator- Central Provincial Government
Plaintiff 

V
NATIONAL EXECUTIVE COUNCIL
First Defendant

And
HON. WESLEY NUKUNJ Minister for Department of Public Service
Second Defendant

And
FRANCIS KOABA
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2019: 01st October 

PRACTISE & PROCEEDURE – Judicial Review & Appeals – Joinder Application Order 5 Rule 8 – Whether sufficient interest to join –Additional parties – necessary for an effective determination of issues raised – material filed do not support joinder – balance not discharged on probabilities – application refused – costs follow event.

PRACTISE & PROCEEDURE – Judicial Review & appeals – not all parties – decision making process – decision maker's decision – parties applied part of process – not decision maker – evidence to be led – motion refused – cost follow event.

Cases Cited
Papua New Guinea Cases

PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 
AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 
Pinpar Development Pty Ltd v TL Timber development Pty Ltd [1999] PNGLR 139
Overseas Cases
Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA 

Counsel:

T. M. Ilaisa, for Applicant
K. Kipongi, for Respondents
					RULING 
 01st October, 2019

1.	MIVIRI, J: This is the Ruling of the Court on the Notice of Motion of the Applicant Gei Guni Raga dated the 19th September 2019 invoking the National Court Rules, “the rules” Order 5 Rule 8 (1), to join the Honourable Governor of the Central Province Robert Agarobe and the Central Provincial Government as Defendants to this proceeding. 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 Gei Guni Raga’s Affidavit sworn 19th September 2019 and filed the same day is relied on as gravity to the assertion for joinder. What is not clear from that material is whether or not it was the decision of the persons sought to be joined that led to the demise of the applicant. Put another way the pleadings do not disclose what is sought by the application and therefore would be an error of law to grant.

Law

3.	It follows that Applicant has not satisfied on the balance of probabilities the test for Joinder of Parties given; (a) Honourable Robert Agarobe MP is part of the decision-making process. He is not the decision maker. He referred his views to the decision maker. It was not binding on the decision maker in this case the National Executive Council. He is already in the proceedings by virtue of the naming of the National Executive Council. It was their decision not his that has impacted upon the Applicant. The Central Provincial Government is in similar position as Honourable Robert Agarobe. They merely were part of the process that was led to the demise of the applicant. The Ultimate decision maker is the National Executive Council who is the Principle Defendant together with the State. Both of whom are named here. There would be duplication of parties. Judicial review is about the process taken by the decision maker. Both persons sought were part of the process and did not make the decision pertaining to the demise of the Applicant.

4.	They would not be analogous as having sufficient interest in the proceedings because they were part of the process that the applicant can point to in his substantive matter to sway that they did not lawfully contribute to his demise attaining what is sought here overall rather than piecemeal ; and (b) their joinder as a party is not necessary because all matters in the proceedings can be effectively and completely adjudicated upon even without their joinder as they were part of the process of the decision making leading they are not the decision maker themselves effecting the demise of the applicant, 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, AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 (24 February 2000).” 
 In my view this is not applicable here given the facts set out above. And Pinpar Development Pty Ltd v TL Timber development Pty Ltd [1999] PNGLR 139 does not favour the argument advanced by the applicant, his pleading defeats his motion.
6.	The facts here do not sway to the required balance given. Therefore, in all the circumstances, this application is denied. Leave for joinder of proceedings by both the Honourable Governor of Central Province Robert Agarobe MP and the Central Provincial Government is refused.

7.	The matter will return to court at the next directions hearing Monday 7th October 2019 for further directions to settling hearing of the leave application.

8.	For the reasons set out above cost will follow the event. 

Orders Accordingly.
__________________________________________________________________
Thomas More Ilaisa Lawyers         : Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General     : Lawyer for the Defendant