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National Court of Papua New Guinea |
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 A 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 Plaintiff
AND:
WALTERS FARMERS ASSOCIATION (WFA)
First Defendant
AND:
LAKA FOREST DEVELOPMENT LIMITED 1-100201
Second Defendant
AND:
KONOAGIL AGRI DEVELOPMENT LIMITED 1-100198
Third Defendant
AND:
MILLION PLUS CORPORATION LIMITED 1-79119 THE DEVELOPER OF THE KONOAGIL INTERGRATED AGRICULTURE (OIL PALM) PROJECT, NAMATANAI DISTRICT,
NEW IRELAND PROVINCE
Fourth Defendant
AND:
DAVID DATAONA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF THE NATIONAL FOREST AUTHORITY AND HIS COMMITTEE
Fifth Defendant
AND:
TUNO SABUIN, MANAGING DIRECTOR OF
PAPUA NEW GUINEA FOREST AUTHORITY
Sixth Defendant
AND:
REGISTRAR OF INCORPORATED LAND GROUPS,
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Seventh Defendant
AND:
GUNTHER JOKU, MANAGING DIRECTOR,
CONVERVATION ENVIRONMENT PROTECTION AUTHORITY
Eighth Defendant
AND:
FRANCIS DAINK, ACTING SECRETARY,
DEPARTMENT OF AGRICULTURE AND LIVESTOCK
Nineth Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant
Kokopo: Suelip, AJ
2021: 28th June & 15th September
CIVIL LAW – preliminary applications – lack of authority from the Attorney General for legal representation – class action – lack of evidence of engagement from Attorney General – section 1 of Attorney General Act – lack of consent from plaintiffs to institute proceedings – no signatures in schedules – lack of standing of second plaintiff – filed out of time – Order 16 Rule 4(2) National Court Rules – incompetency issues – issues already considered – applications refused with costs
Cases Cited
Donald Valu & ors v. Dr Ken Ngagan & ors [2018] SC1723
Tigam Malewo v. Kieth Faulkner [2009] SC960
Sir Julius Chan v. Hon. Walter D Schnaubelt & anor (2008) SC1700
Andy Kapinias v. O&G Niugini Ltd & anor [2018] N7517
Gregory Todiai & ors v. Walter Shnaubelt & ors (2017) SC1637
Counsel
N. Mirou, for the First, Second and Third Plaintiffs
G. Purvey, for the First, Second, Third and Fourth Defendants
S. Mitige, for the Fifth and Sixth Defendants
E. Takoboy, for the Seventh, Nineth and Tenth Defendants
J. Issack, for the Eighth Defendant
DECISION ON PRELIMINARY APPLICATIONS
15th September, 2021
1. SUELIP, AJ: On 28th June 2021, the first, second, third, fourth and eighth defendants raised four (4) issues in preliminary applications as basis for dismissal and lack of locus standi of the second plaintiff. This is my decision on these applications.
2. The first 3 issues raised by the first 4 defendants are these:
(i) the failure by the plaintiffs to provide evidence on the authority granted to them pursuant to section 7(i) of the Attorney General Act to engage legal representation in commencing this proceeding;
(ii) the lack of consent of all the plaintiffs to commence proceeding for and on their behalf; and
(iii) lack of standing of the second plaintiff in these proceeding.
3. The fourth issue raised by the eight defendant is this.
(iv) the incompetency of this proceeding as it was filed out of time pursuant to Order 16 rule 4(2) of the National Court Rules.
4. While the other defendants support these applications, the plaintiffs contest them.
Brief history
5. Leave was granted on 15 March 2017 to the plaintiffs to review the decisions of the various state agencies especially the decision of the fifth and sixth defendants in granting a Forest Clearance Authority (“FCA”) to the fourth defendant and also, the decision of the eighth defendant in issuing an environment permit to the fourth defendant. The plaintiffs further seek review of the seventh defendant’s decision in issuing a Certificate of Recognition to a certain clan.
6. An earlier preliminary application was made by the fifth and sixth defendants for the court to dismiss this review on the basis that the plaintiffs failed to file a Notice of Motion seeking the substantive reviews pursuant to Order 16 rule 3(1) of the National Court Rules. That application was refused as an earlier decision regarding this issue was made in the judgement of Anis J on 13 September 2018 where he ruled that such a Notice of Motion has been filed.
7. The issues for determination in these preliminary applications are these: -
(i) whether the plaintiffs complied with the Order of 8 February 2019 to provide evidence of the authority granted to them pursuant to the Attorney General Act to engage legal representation in commencing this proceeding?
(ii) whether there is lack of consent of all the plaintiffs to commence proceeding for and on their behalf?
(iii) whether there is lack of standing of the second plaintiff in these proceeding?
(iv) whether this proceeding was filed out of time?
8. I now discuss these issues.
Issue (i) - whether the plaintiffs complied with the Order of 8 February 2019 to provide evidence of the authority granted to them pursuant to the Attorney General Act to engage legal representation in commencing this proceeding?
9. The first four defendants submit that a private law firm must first obtain authority from the Attorney General (“AG”) pursuant to section 7(i) of the Attorney General Act (“AG Act”) prior to commencing proceedings which affects the interest of the State. They refer to the case of Donald Valu & ors v. Dr Ken Ngagan & ors [2018] SC1723 where the Supreme Court upheld the respondent’s objection to competency after being satisfied that the second appellant who is a statutory body failed to obtain approval from the Attorney General prior to engaging a private law firm to institute the appeal, thus, the defendants say the appellants therein failed to comply with section 7(i) of the AG Act.
10. Further, the defendants also submit that there is a specific term in the Order of 8 February 2019, for the second and third plaintiffs to file evidence within 21 days to show that they have complied with section 7(i) of the AG Act. They say there is no evidence before the Court showing that the second and third plaintiffs have obtained the authority of the AG as required prior to commencing these proceedings.
11. In response, the plaintiffs say that Annexure “BK-1” of the affidavit of Bernard Koae sworn 16 December 2019 and filed 17 December 2019 (Doc #144) shows that authority has been obtained from the AG. They say that authority is contained in the letter dated 30 October 2019 from the then AG, Hon. Davies Steven which was received by the plaintiffs on 11 November 2019, and that letter gives Eda Legal Services approval to represent the third plaintiff.
Issues (ii) - whether there is lack of consent of all the plaintiffs to commence proceeding for and on their behalf? and Issue (iii) - whether there is lack of standing of the second plaintiff in these proceeding?
12. These two issues are discussed together as they were raised earlier, and considered in decisions of this Court and the Supreme Court. However, for purposes of clarity, the primary reasons for raising these issues are these. The defendants say that there is lack of consent of the 529 plaintiffs to institute this proceeding. They say in Court Document 86 which is the affidavit of the plaintiffs’ counsel and attaches Schedules 1 and 2, there is a list of the names of the plaintiffs but there are no signatures, nor are there any authority from each plaintiff provided therein. As such, the first four defendants say the 529 plaintiffs have not given their consent for this action to be instituted in their names. They refer to the case of Tigam Malewo v. Kieth Faulkner [2009] SC960 where the procedural requirements are set out to include the naming of all plaintiffs, and each plaintiff giving specific instructions to their lawyers with each written authority for a principal plaintiff to act for them.
13. As to standing, the first four defendants say the second plaintiff lacks standing in his political capacity to be a party in these proceedings. They refer to the case of Sir Julius Chan v. Hon. Walter D Schnaubelt & anor (2008) SC1700 and Andy Kapinias v. O&G Niugini Ltd & Anor [2018] N7517. In the latter case, the Court found that the plaintiff had no standing as he was suing as a ward councillor. It was also held in that case that the plaintiff was not a party to the lease agreement between the first and second defendants, and therefore he cannot make a claim on the lease.
14. The defendants also say that the second plaintiff’s affidavit sworn 21 November 2016 states he is the president of the Konoagil Local Level Government within the Namatanai District, and he represents 17 wards in that area. He further says that he is also the Chairman of Infrastructure in the New Ireland Provincial Executive Council. It is therefore submitted by the defendants that the second plaintiff does not have standing to bring this action as his interests in the proceeding is of a political nature.
15. In response, the plaintiffs say that the ex-tempore decision of Cannings J on 28 July 2020 in proceedings SCA No. 20 of 2019 – Walter Farmers Association & 3 ors v. Gregory Todiai & ors has dealt with the issue of section 7(i) of the AG Act when His Honor heard and refused the appellant’s application for leave to appeal.
16. As to the legal standing of the second plaintiff, the plaintiffs say the second plaintiff is the president of the Local Level Government (LLG) and represents the wards in the area. They also say the second plaintiff is a private citizen and a landowner hence, he has the standing to bring this action on his own behalf and on behalf of the ward councillors. The plaintiffs further rely on section 6 of the Organic Law on Provincial and Local Level Governments where it allows the second plaintiff to sue or be sued. Hence, they submit that the second defendant has standing to bring this action.
Issue (iv) - whether this proceeding was filed out of time?
17. The eighth defendant says the plaintiff seeks orders in the nature of certiorari, and pursuant to Order 16 rule 4(2) of the National Court Rules, such a proceeding should be filed within 4 months. The eighth plaintiff says that the Environment Permit was granted to the third defendant on 13 October 2014 commenced operation on 8 November 2014. This proceeding was filed on 2 March 2017, which is 2 years and 4 months later. It is therefore submitted that this proceeding is a nullity.
18. The plaintiffs, in response, say they only became aware of such a project on the ground and started pursuing their interests by making enquiries at various offices. They submit that the delay is reasonable because they have been pursuing their interest as soon as they became aware of the project.
Consideration
Issue (i) - whether the plaintiffs complied with the Order of 8 February 2019 to provide evidence of the authority granted to them pursuant to the Attorney General Act to engage legal representation in commencing this proceeding?
19. The second and third plaintiffs were ordered by the Court to file evidence within 21 days from 9 February 2019 to show their compliance with section 7(i) of the AG Act. Section 7(i) of the AG Act states:
The duties, functions and responsibilities of the Attorney-General are–
(a)...
(i) to instruct lawyers within or outside the country to appear for the State in any matter; and
...
20. At paragraph 2 of the letter from the AG then of 30 October 2019 to Eda Legal Services, it reads:
“I received a letter dated 8th February 2019 from the Governor of New Ireland Province Hon. Julius Chan, requesting that your firm represents the New Ireland Provincial Government in the above-named proceedings. I have decided to grant his request.”
21. Clearly, the third plaintiff sought approval from the AG on 8 February 2019 and for reasons unknown, a response granting approval was given to the lawyers 8 months later. As it is, the AG has given retrospective approval and therefore the plaintiffs’ lawyers are authorised to represent the New Ireland Provincial Government.
22. As regards the second plaintiff, there is no mention of approval given to the lawyers to also represent the second plaintiff in that letter or in any other letter. The question now is whether a LLG require the AG’s authority for Eda Legal Services to represent them in this proceeding?
23. The case of Donald Valu & ors v. Dr Ken Ngangan & ors (supra) cited by the defendants discussed that a public or statutory body must seek approval from the AG for a private firm to represent its interests. The second plaintiff is named in this proceeding as “Honourable James Pandi for himself and as LLG President of Konoagil Rural Local Level Government etc...”. Because he is suing for himself and as a leader, he should be allowed to pursue this action. His evidence at trial ought to show he is a private person or citizen affected by the activities of the defendants. Further, there is no case authority referred to by the defendants’ counsel to show that an LLG requires prior approval from the AG for a private law firm representation in a proceeding.
Issues (ii) - whether there is lack of consent of all the plaintiffs to commence proceeding for and on their behalf? and Issue (iii) - whether there is lack of standing of the second plaintiff in these proceeding?
24. As regards lack of consent, the decision of Anis J on 8 February 2019 has considered this issue. In paragraph 7 of the written judgement, His Honour said, and I quote in part:
“7. 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 instructions from individual members of the plaintiffs.”
(underlining mine)
25. Further, in Gregory Todiai & ors v. Walter Shnaubelt & ors (2017) SC1637, the former Chief Justice said at paragraph 9, and I quote in part:
“9. Applying those principles to the case before me, I am satisfied that an arguable case has been demonstrated that the trial judge’s finding to allow the matter to proceed to trial in the absence of a complete a consent and authorization by all the plaintiffs from the 17 LLG areas run against principles in the cases referred to above. However, the weight to be attached to this conclusion is reduced significantly by the fact that the action is still maintainable on a division or separation of the plaintiffs’ representatives that had obtained the consent/authorization and those that did not. There is evidence that the majority of the resource owners from the 17 LLG areas signed the authorization forms and to that extent, the proceedings remain validly instituted. I am not persuaded that the cases cited by the appellants actually say if the failure to obtain the consent from every plaintiff in a class action is a complete bar to the entire action. To my mind, if a class action contains a mixture of plaintiffs’ representatives that have or have not obtained the plaintiffs’ consent or authorization, I would think that the plaintiffs would be divisible along that line and the action continue in respect of those representatives that have obtained authorization from the plaintiffs’ whilst those that have not obtained consent/authorization may be removed or terminated from the proceedings. In addition, the principal plaintiffs also brought the proceedings in their own right as leaders from the affected forest clearance authority areas and they should be allowed to pursue the action.”
(Underlining mine)
26. I agree with the decision of the former Chief Justice on this issue where His Honour held that a failure to obtain the consent of every plaintiff in a class action is a complete bar to the entire action and those who do not give their consent can be removed or terminated from the proceedings.
27. As regards the lack of standing of the second plaintiff, that issue was also considered by Anis J in his decision in this case on 8 February 2019. At paragraph 12 of his judgement, and I quote:
“12. The 4 defendants also submit that the 2nd 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 4 defendants still have an issue with the 2nd 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).”
28. That decision was appealed, and this issue was again considered by the Supreme Court in Gregory Todiai & ors v. Walter Shnaubelt & ors (supra) where His Honour, the Chief Justice (as he was then) stated at paragraph 10 and I quote:
“10. I am satisfied that the issue of standing of all the representatives of all the plaintiffs to bring either the OS proceedings or file the Notice of Motion instituting the substantive review if a matter that is open to be resurrected before the trial judge in the substantive review. The question of standing will particularly become relevant at the time in the trial of the substantive claim when the precise forest area to be cleared that is affected by the forest clearance authority, the ownership of the land on which the forest resource issue is situated and the appropriateness of the relief to be granted to the appropriate plaintiffs who have suffered loss and damage are determined at the trial. That option is still open to the appellants. Judicial review proceedings are different from the ordinary civil proceedings and they deal with causes of action which are of a special nature and time is of essence in dealing with those type of claims.”
(underlining mine)
29. Here, trial has barely started and most of the defendants are making preliminary applications for dismissal of this judicial review on competency grounds, all of which, in my view, have been considered by this Court and the Supreme Court. These issues will become clearer at or during trial. It is an abuse of the Court process to raise the same issues again prior to trial.
30. Besides, the case of Andy Kapinias v. O&G Niugini Ltd & anor (supra) was dismissed as the plaintiff was suing in his capacity as a ward member, who was also not a party to a lease agreement. This is distinct from this case where the second plaintiff is suing for himself and as an LLG president. At trial, he must how show that he is affected by actual losses and damages as an individual and along with the other councillors as representatives of their people, they must show they are collectively affected by the activities of the fourth defendants.
Issue (iv) - whether this proceeding was filed out of time?
4. Delay in applying for relief.
(1) ...
(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
(3)...
32. The reliefs sought by the plaintiffs in their Originating Summons filed 2 March 2017 are as follows:
1. An order pursuant to Order 16 Rule 3(3) of the National Court Rules that leave be granted to the Plaintiffs to seek an order for Certiorari to review the series of decisions by the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Defendants including: -
(a) the decision of the Fifth, Sixth and Seventh Defendants in the form of Forest Clearance Authority(“FCA”) on 12 October 2105 granting approval to the Fourth Defendants to clear and harvest 35,000 hectares of forested area on customary land belonging to the 17 Wards/Villages of Lak (East) and Kandas (West) area of the Konoagil Rural ILG, Namatanai District, New Ireland Province was flawed and highly irregular for the following reasons ...
(b) the series of decision of the Eighth Defendant approving Application for Recognition of Incorporated Land Groups (“ILG”) Certificate to...
(ba) The applications for the Certificate of Recognition of Incorporated Land Group failed to comply with the statutory requirements of the Land Registration Act as amended and the Land Groups Incorporation Act as amended; for reasons that ...
(1) The decision of the Ninth and Tenth Defendants on or between June 2015 to August 2015 approving and issuing Environment Permit EP-L2B(409) valid for a period of twenty five (25) years to the First, Second, Third and Fourth Defendants is in contravention of the Environment Act 2000, the Environment (Prescribed Activities) Regulation 2002 and the Department of Environment and Conservation Operational Manual, especially where the agro-forestry development on a customary land will impact on the environment and water ways including waste discharge associated with the project as a Level 3 activity requires Ministerial Approval on recommendation of the Environment Council.
(2) The decision of the Eleventh Defendants on or between June 2015 to August 2015 in issuing Certificate of Compliance for a Forest Clearance Authority to Large Scale Concession (Form 238) pursuant to the Forestry Act was based on flawed Proposal for agricultural land use development as submitted by the Third Defendants lacking capacity to undertake such activity.
33. The primary relief sought is an order for certiorari to review the various decisions of the fifth to the eleventh defendants.
34. In Sir Bernard Sakora v. Judicial and Legal Services Commission & 2 ors [2017] N6991, Justice Hartshorn stated at paragraph 10, and I quote:
“10. Order 16 Rule 4(2) National Court Rules refers to an application, “...for an order of certiorari, to remove any judgement, order, conviction or other proceeding for the purpose of quashing it,....” These are certain classes of certiorari. The Rule does not refer to or include all applications for certiorari. The Decision sought to be reviewed and quashed in this instance is not a judgement, order, conviction or other proceeding. Consequently, Order 16 Rule 4(2) does not apply.”
35. Against the eighth defendant, the plaintiffs sought to review the Environment Permit granted to the third defendant on 13 October 2014. That permit is neither a judgment, nor an order, nor a conviction, nor other proceeding. The same applies to the FCA and the ILG Certificate issued by the other defendants. It is therefore apparent that the time limit of 4 months does not apply to this judicial review proceeding.
Conclusion
36. On the issue of whether the second and third plaintiffs have obtained authority from the AG for Eda Legal Services to represent them in this judicial review, the authority contained in the letter dated 30 October 2019 from the then AG gives that law firm retrospective approval to represent only the third plaintiff.
37. Further, the principal plaintiffs including the second plaintiff are private citizens and leaders in their own right. Therefore, they can pursue the action and choose their own legal representation. Their evidence at trial should show that they are private persons and leaders of the areas affected.
38. As regards the requirements of written consent of all the plaintiffs and legal standing of the second plaintiff, both issues have been considered by this Court and the Supreme Court. Both courts say this are matters for trial. It is therefore an abuse of process to raise these issues again prior to trial.
39. Finally, the FCA, the environment permit and the ILG Certificate, which the plaintiffs have asked to be reviewed are neither judgments, nor orders nor convictions, nor other proceedings. Therefore, the time limit to file this judicial review within 4 months does not apply to this proceeding.
Remarks
40. Before I pronounce the Orders, I want to express my concern at the delay in bringing this judicial review proceeding to hearing. The OS was filed on 2 March 2017. Leave was granted on 15 March 2017. That is 4 and a half years ago. This is extra ordinary delay. There were appeals from various interlocutory decisions which have disturbed the speedy disposal of this judicial review as intended by Order 16 of the National Court Rules. Issues already considered are repeatedly raised. Unless the rights of any party are being prejudiced by the Orders I now make, trial will continue on 6 October 2021 at 9:30am as already scheduled.
Orders
41. The Orders of the Court are:
(i) The preliminary applications by the first, second, third, fourth and eight defendants are refused.
(ii) Costs of and incidental to these preliminary applications for the appellants on a party/party basis to be taxed if not agreed.
(iii) Trial shall continue on Wednesday, 6 October 2021 at 9:30am.
(iv) Time is abridged until date of settlement which shall take place forthwith.
_________________________________________________________________
Eda Legal Services Lawyers: Lawyers for the First, Second and Third Plaintiffs
Young & Williams Lawyers: Lawyers for the First, Second, Third and Fourth Defendants
National Forest Authority: Fifth and Sixth Defendants (In house lawyers)
Office of Solicitor General: Seventh, Nineth and Tenth Defendants
Lawama Lawyers: Lawyers for the Eight Defendants
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