N7678
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 83 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
GREGORY TODIAI for himself and as Clan leader for Limut Clan and RAYMOND TOABOLI for himself and as Clan leader of Marnai Guramwan Clan both also for and on behalf of the 529 named Plaintiffs of 16 Wards out of the 17 Wards/Villages of Lak (East) and Kandas (West) area situated within the Konoagil Local Level Government (LLG) area of Namatanai District, New Ireland Province
First Plaintiffs

AND:
HONOURABLE JAMES PANDI for himself and as LLG President of Konoagil Rural Local Level Government also for and on behalf of the 17 named Ward Councillors, Namatanai District, New Ireland Province
Second Plaintiffs

AND:
NEW IRELAND PROVINCIAL GOVERNMENT
Third Plaintiffs

AND:
WALTERS FARMERS ASSOCIATION (WFA)
First Defendants

AND:
LAKA FOREST DEVELOPMENT LIMITED 1-100201
Second Defendants

AND:
KONOAGIL AGRI DEVELOPMENT LIMITED 1-10098
Third Defendants

AND:
MILLION PLUS CORPORATION LIMITED 1-79119 THE DEVELOPER OF THE KONOAGIL INTEGRATED AGRICULTURE (OIL PALM) PROJECT, NAMATANAI, DISTRICT, NEW IRELAND PROVINCE
Fourth Defendants

AND:
DAVID DATAONA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF THE NATIONAL FOREST AUTHORITY AND HIS COMMITEE
Fifth Defendants

AND:
TUNO SABUIN, MANAGING DIRECTOR OF PAPUA NEW GUINEA FOREST AUTHORITY
Sixth Defendants

AND:
REGISTRAR OF INCORPORATED LAND GROUPS, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Seventh Defendants

AND:
GUNTHER JOKU, MANAGING DIRECTOR, CONSERVATION ENVIRONMENT PROTECTION AUTHORITY
Eight Defendants

AND:
FRANCIS DAINK, ACTING SECRETARY, DEPARTMENT OF AGRICULTURE AND LIVESTOCK
Ninth Defendants

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendants

Kokopo: Anis J
2018:  23 November &
2019:  8th February

JUDICIAL REVIEW – Motion to dismiss – Order 16 Rule 13(13)(2)(a) & (b)(a) – grounds – incompetency & abuse of court process – whether consent of all plaintiffs required before amending the Statement under Order 16 Rule 3(2) of the National Court Rules – whether second plaintiff has standing – whether standing has been addressed by the leave Court – whether the Attorney General has briefed out the matter for the second and third plaintiffs – section 7(i) – Attorney-General Act 1989.

Cases Cited:

East New Britain Provincial Government v. The Public Service Commissioner and Ors (2017) N6706
Gire Gire Estate Ltd v. Barava Ltd (2016) N6473
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Miai Larelake v. Hon. Havila Kavo (2008) N3563
Simakade Holdings Ltd and Ors v. David Dotaona, Chairman of the National Forest Board and Ors, (2018) N7356
SCR No. 1 of 1998: Reservations pursuant to s. 15 of the Supreme Court Act (2001) SC 672
Counsel:

Mr N. Mirou, for the First, Second and Third Plaintiffs
Mr G Purvey, for the First, Second, Third and Fourth Defendants
Mr S. Mitige, for the Fifth and Sixth Defendants
Ms E. Takoboy, for the Seventh, Ninth and Tenth Defendants

RULING
8th February, 2019
1.	ANIS J:	This is my ruling in relation to a notice of motion which was filed on 31 October 2018 (application).  The application was filed by the first, second, third and fourth defendants (the 4 defendants).  It sought the dismissal of the judicial review proceeding on two grounds, namely, incompetency and abuse of court process.  The application was contested, and it was heard on 23 November 2018.  I reserved my ruling thereafter.

2.	Parties have been notified so I will rule on it now.
BACKGROUND
3.	The plaintiffs obtained leave to apply for judicial review on 15 March 2017.  They challenge, amongst other things, a decision of the State and its agencies, that was made on or about 12 October 2015.  The plaintiffs allege that by that decision, a Forest Clearing Authority FCA No. 16-03 (FCA licence) was issued to the fourth defendant.  The FCA licence was issued to clear forest on a demarcated land area within the Konoagil Local Level Government area in the Namatanai District of New Ireland Province.  

MOTION

4.	I refer to the relief in the application, and I quote in part:

2.	Pursuant to Order 16 Rule 13(13)(2)(a)(b) sub-paragraph (b) of the Rules and the inherent jurisdiction of the Honourable Court, the entire proceedings be dismissed for being incompetent and/or an abuse of process.
3.	Alternatively, pursuant to Order 12 Rule 40(a), (c) and (d) of the Rules and the inherent jurisdiction of the Honourable Court the entire proceedings are dismissed for not disclosing a reasonable cause of action and/or being an abuse of process.

ISSUES

5.	The issues are as follows, (i) whether the plaintiffs’ representatives were required to obtain the consent of the people whom they represent and file evidence of that, before they could file their amended Statement, (ii), whether the filed Amended Statement is defective in form, (iii), whether the second plaintiff has standing, and (iv), whether the second and third plaintiffs have obtained the consent of the Attorney General to engage the services of a private law firm to act for them, as required under section 7(i) of the Attorney-General Act 1989 (AG Act).

CONSENT TO FILE AMENDED STATEMENT

6.	The four (4) defendants submit that the Amended Statement that was filed on 2 August 2018 (Amended Statement) is an originating process.  As such, they submit that the plaintiffs were required to show, before filing the Amended Statement, evidence of consent obtained from all the persons whom they claim to represent.  The four (4) defendants submit that because no such evidence had been disclosed, the Amended Statement is void or defective and the proceeding is therefore incompetent and must be dismissed.  

7.	To me, I find the argument firstly to be partially incorrect.  The Amended Statement or a statement that is filed under Order 16 Rule 3(2)(a) of the National Court Rules (NCR) is not a substantive proceeding that is equivalent to an originating process.  A judicial review involves two (2) originating processes.  The first is the originating summons which is filed first in time, to seek leave of the Court to apply for judicial review.  See Order 16 Rule 3(2) of the NCR.  The second originating process, subject to leave being granted, is a notice of motion that is required and is filed for the substantive judicial review application.  See Order 16 Rule 5(1) of the NCR.  See the case, East New Britain Provincial Government v. The Public Service Commissioner and Ors (2017) N6706.  A statement that is filed under Order 16 Rule 3(2) is equivalent to or may be regarded as a pleading or a statement of claim, but not a writ of summons or an originating summons.  See the case, Lawrence Sausau v. Joseph Kumgal (2006) N3253.  Therefore, and in my view, there is no need to require or obtain specific instructions from individual members of the plaintiffs.  

8.	It is also my view that obtaining of instructions from the start of a judicial review proceeding or in any Court proceedings, should be sufficient.  I can only imagine the chaos that would ensure if the National Court is to insist upon lawyers to show proof of instructions received from their clients every time they intend to file a court document in Court.

9.	I therefore reject this argument.

AMENDED STATEMENT - DEFECTIVE?

10.	The four (4) defendants also submit that the Amended Statement is defective.  They submit that the document did not also show the edited or the crossed-out contents.  I find the argument frivolous.  I have considered the Amended Statement.  To me, it is sufficiently pleaded and easy to understand and it is not confusing.  I note that it clearly underlines the amendments that have been made to it.  Secondly, I note that the draft of the said document was attached as evidence prior to the application for leave to amend the original Statement.  The four (4) defendants should have raised that with the Court then.  And I note that leave was granted by Justice Higgins and the Amended Statement was filed as per the draft that had been attached as evidence before the Court.

11.	I also dismiss this second argument.

STANDING – 2nd PLAINTIFF

12.	The four (4) defendants also submit that the second plaintiff has no standing in bringing this judicial review proceeding.  This then raises this question.  Can this argument be raised now after leave has been granted by the leave Court?  I would answer, “no” to the question.  The said issue has been determined by His Honour Justice Higgins at the leave stage.  If the four (4) defendants still have an issue with the second plaintiff’s standing or sufficient interest, they should appeal to the Supreme Court.  In the case of Gire Gire Estate Ltd v. Barava Ltd (2016) N6473, I stated at paragraph 4 of my judgment, and I quote in part:

I note that because the leave hearing was, by law, heard ex-parte as of right by the plaintiff, it cannot be set aside by an aggrieved party like the 1st defendant except of course the State who has a right of hearing at the leave stage of the proceeding.  As for the 1st defendant, it should have appealed against the decision under Order 16 Rule 11 of the National Court Rules and Order 10 of the Supreme Court Rules.  That would have been the correct step to take.  (See the case of The Right Honourable Sir Julius Chan v. The Ombudsman Commission of Papua New Guinea (1998) SC557)

13.	I adopt the above herein.  I find that it is an abuse of the court process to raise this argument before this Court. May I add that the first set of judicial review, which is the application for leave to apply for judicial review, has been determined.  Presently, this Court is constituted pursuant to the second set of judicial review, namely, the application for judicial review (see Order 16 Rule 5).  The only recourse for the four (4) defendants, if they are still unhappy with the leave Court’s decision, which had been instituted under an originating summons, would be to appeal to the Supreme Court.  In the case, Simakade Holdings Ltd and Ors v. David Dotaona, Chairman of the National Forest Board and Ors, (2018) N7356, I said at page 17 of my decision, and I quote in part:

A notice of motion that is subsequently filed by a respondent or an interested party to dismiss the judicial review proceeding on the basis of want of reasonable cause of action or for want of merit, in my view, should itself (i.e., the notice of motion) be regarded as abuses of the court process.  That is, if a respondent or an interested party fails to appeal the decision of the leave Court after the leave Court finds that there is an arguable case, the issue of whether the judicial review has merit or is arguable, should not be challenged in a further interlocutory process except at the substantive hearing of the judicial review application itself.  

14.	I also adopt these as my own herein.  Having said these, there may be exceptions.  I note that I have in Samakade Holdings Ltd named two (2).  Again, I read in part at paragraph 17:

An exception I see where the judicial review Court may proceed to hear an application of this nature (i.e., application to dismiss a judicial review for want of merit after leave has been granted and) before the actual judicial review hearing, is in a case where if it can be proven that the applicant did not fully disclose a crucial or material fact or facts concerning the merit of the proceeding, at the hearing of the application for leave to apply for judicial review.  The second exception I see is where the facts or events have changed since the time the Court had granted leave to apply for judicial review and that the facts are crucial concerning the merit of the proceeding.  I make these rulings because I observe generally that judicial time for judicial review proceedings have now been taken up with applications after applications filed by parties after leave stages which has seen judicial review proceedings being delayed and, in many instances, far beyond their required hearing times.  In my view, judicial review proceedings, from the time leave is granted, should take less than three (3) months to complete.  Instead, I see that it can take beyond six (6) months and even years before a judicial review matter is finally resolved or is determined.  In my view, such practices go beyond the requirements as inscribed under Order 16 in the National Court Rules and in the case law, when dealing with judicial review proceedings.
(Underlining is mine)

15.	Again, I adopt these for this purpose because I find them relevant.

16.	In the present case, however, I find that the four (4) defendants have not explained that the argument want of standing has met one (1) or the two (2) exceptions.  This, plus the other reasons I have stated above in my judgement, make me find or conclude that the argument is without merit and is also an abuse of the court process.

SECTION 7(i) – AG ACT

17.	The fourth defendants’ final argument is this.  They claim that the plaintiffs or their lawyers did not obtain permission (or a brief out) from the Attorney General as required under section 7 of the AG Act, to act for the second and third plaintiffs.  Section 7(i) states, and I quote in part, The duties, functions and responsibilities of the Attorney-General are—…(i) to instruct lawyers within or outside the country to appear for the State in any matter.  

18.	The plaintiffs’ counsel informed the Court that his instructions from the second and third plaintiffs came by way of a letter.  Counsel did not elaborate, and he informed the Court that he was unable to assist further on the subject matter.  Counsel nevertheless submitted that with or without lawyers, that the second and third plaintiffs were parties to the proceeding and have rights to be heard.

19.	I have considered the case law.  The case authority on point, in my view, is Miai Larelake v. Hon. Havila Kavo (2008) N3563.  Justice Davani stated at paragraph 25 of her judgment, and I quote in part, I accept Mr. Koaru’s submissions that if the Provincial Government is to brief private law firms, it must be done through the Office of the Attorney-General in accordance with requirements set out in the Public Finances (Management) Act 1995.  This was not done in this case.  Her Honour, in her final ruling, referred to the Supreme Court case, SCR No. 1 of 1998: Reservations pursuant to s. 15 of the Supreme Court Act (2001) SC 672.  In the latter case, the Supreme Court held that the term “State” includes a Provincial Government.  I also adopt and apply these as my own herein.

20.	I find that I do not have sufficient evidence or materials before me at this stage to make a definite finding on this issue.  Because of this uncertainty, I will direct the plaintiffs’ lawyers to produce evidence of their engagement by the Attorney General in this matter, to show compliances with section 7(i) of the AG Act.  If no such evidence is provided within 21 days from today, the plaintiffs’ lawyers shall cease to continue to act as lawyers for the second and third Plaintiffs.  The issue can be resolved at a directions hearing after this.  That said, let me add the following.  If it is found that the second and third plaintiffs did not obtain permission as required under section 7(i) of the AG Act, it means that Eda Legal Services Lawyers shall cease to act for the second and third plaintiffs.  But it would not also mean that the second and third plaintiffs should also be removed as parties or that they shall have no interests in the matter.  The second and third plaintiffs are legal persons recognised under law.  They have engaged Eda Legal Services Lawyers to pursue their interests in this matter.  The actions of their lawyers were based on their instructions as legal persons who are entitled to sue and be sued.  If their lawyers are to be removed because of want of compliance with section 7(i) of the AG Act, it would then be a matter for the two (2) said plaintiffs to address and choose their next lawyers following due process.

ALTERNATIVE RELIEF

21.	The four (4) defendants have also sought orders in the alternative under Order 12 Rule 40(a)(c) and (d) of the NCR, for the proceeding to be dismissed.  There seems to be a typo in regard to the quoted source for the said relief.  I think the correct reference meant was or should have been Order 12 Rule 40(1)(a), (b) and (c) of the NCR.  In brief, the rule gives the National Court powers to dismiss a proceeding, (i), if the proceeding does not disclose a reasonable cause of action, or (ii), if the proceeding is frivolous and vexatious, or (iii), if the proceeding amounts to an abuse of the court process.

22.	I will decline relief for the reasons I have already covered above in my judgment.  May I add that most, if not all, have been dealt with by the leave Court.

SUMMARY

23.	In summary, let me say these.  In regard to the first issue, whether the plaintiffs’ representatives were required to obtain the consent of the people whom they represent and file evidence of that, before they could file their amended Statement, my answer is, “no, they were not”.  In regard to the second issue, whether the filed Amended Statement is defective in form, my answer is, “no, it is not defective in form.”  In regard to the third issue, whether the second plaintiff has standing, my answer is, “yes, the second plaintiff has standing or sufficient interest in the matter as held by the leave Court; if the four (4) defendants still have issues with that, they should appeal to the Supreme Court”.  In regard to the final issue, whether the 2nd and 3rd plaintiffs have obtained the consent of the Attorney General to engage services of a private law firm to act for them, as required under section 7(i) of the Attorney-General Act 1989 (AG Act), my answer is this.  “The second and third plaintiffs are required to obtain a brief out permission from the Attorney General pursuant to section 7(i) of the AG Act, and they shall be so directed to provide evidence of that.  If they fail to do so, their current lawyers shall cease to act for them”.

COST
24.	Cost is discretionary.  I will order the four (4) defendants to pay half of the plaintiffs’ costs of this application.  Their costs may be taxed using the party/party cost scale if not agreed.

THE ORDERS OF THE COURT

25.	I make the following orders:

1.	I refuse the first, second, third and fourth defendants’ notice of motion filed on 31 October 2018.

2.	The second and third plaintiffs are directed to file evidence, within 21 days from the date of this order, to show that they have complied with section 7(i) of the Attorney-General Act 1989, that is, in engaging the services of Eda Legal Services Lawyers in this proceeding.

3.	The four (4) defendants shall pay half of the plaintiffs’ costs in defending this application using the party/party cost scale which may be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.
________________________________________________________________
Eda Legal Services: Lawyers for the First, Second and Third Plaintiffs 
Young and Williams Lawyers:  Lawyers for the First, Second, Third and Fourth Defendants
PNG Forest Authority In-House Lawyers: 	Lawyers for the Fifth and Sixth Defendants
Office of the Solicitor General: Lawyers for the Seventh, Ninth and Tenth Defendants