N11199
PAPUA NEW GUINEA 
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 66 OF 2024

BETWEEN:
HON TIMOTHY MASIU, Minister for Information and Communications Technology
First Plaintiff

AND:
KILA GULO-VUI, Chief Executive Officer of the National Information Communications Technology Authority (NICTA) 
Second Plaintiff

AND: 
NOEL MOBIHA, Chairman of the Board of NICTA
Third Plaintiff

AND: 
PANNY YOKOPE, Director for Licensing and Enforcement, NICTA 
Fourth Plaintiff

AND: 
NATIONAL INFORMATION & COMMUNICATIONS TECHNOLOGY AUTHORITY 
Fifth Plaintiff

AND:
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Defendant

WAIGANI: PURDON-SULLY J
6 & 21 MARCH 2025

JUDICIAL REVIEW - Practice & Procedure – Application for joinder of party – Source of power to join party in judicial review proceedings – Relevant principles – Persons directly affected –National Court Rules –Order 16 Rules 9(1) & Order 16 Rule 13(6) and (8).

Cases cited
Alex Timothy v. Francis Marus (2014) SC1403
Administration of Territory of Papua and New Guinea v Director of District Administration, ex parte Sabusa Sawmilling Co Pty Ltd [1971] PGSC 61
Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96; SC2280 
Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Dynasty Estates Limited v Nambawan Super Limited [2015] SC1427 
Hapa v Desh Besh Enterprises Limited [2020] SC2062 
Kauba v National Executive Council [2014] PGNC 317; N6025
O’Neill v Eliakim [2016] SC1539
Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844
Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117
Passismanua Inland Timber Resource Pty Ltd & Ors v Nelulu Land Group Inc & Ors (2014) SC1404
Summit Development Ltd v Chan [2016] PGNC 199; N6390
Vaki v Eliakin [2015] PGNC 253; N6129 
Yanta Development Association v Piu Land Group Inc [2005] SC798

Counsel
Ms G Jiki with Mr K Imako for the Plaintiffs
Mr M Kik for the Defendant
Mr S Phannaphen for the Interested Party Telikom
Mr Lewing with Mr Wangi for the interested party, Starlink Internet Services (PNG) Limited given leave to withdraw

1.	PURDON-SULLY J: This is the Court’s ruling on an application for joinder pursuant to a Further Amended Notice of Motion filed 1 November 2024 by Telikom Limited (Telikom) to join proceedings for judicial review.

2.	The Amended Notice of Motion is in the following terms:
1.	Pursuant to Order 16 Rules 5(6) and/ (sic) 8(1) of the National Court Rules 1893(sic) or section 155(4) of the Constitution, Telikom Limited be joined to this proceeding as second defendant.
2.	Cost in the cause
3.	Any further order that the Court deems fit.
4.	Time abridgement
3.	During the course of oral submissions learned Counsel for Telikom brought to the attention of the Court that the word “or” should follow the word “and” in Order 1 of its motion as sought. No issue was taken with that by the Plaintiffs.

4.	The Plaintiffs oppose the application on the following bases:

a.	Telikom relies upon incorrect rules of Court for its joinder;
b.	Telikom is not directly affected by the judicial review before the Court;
c.	Telicom’s proposed contribution to the judicial review proceeding is irrelevant to the question before the Court.

5.	The Defendant takes no position on the joinder application.

BACKGROUND

6.	The Fifth Plaintiff (NICTA) is empowered to grant individual operator licences pursuant to the National Information and Communications Technology Act 2009 (the Act).

7.	On 14 August 2023 NICTA commenced a public consultation regarding licensing requirements for operators who provide Low Earth Orbit (LEO) satellite services and invited the public and relevant stakeholders to make submissions on a consultation paper discussing same.

8.	On 14 August 2023 the consultation paper was published with a list of questions.

9.	The consultation process closed on 11 September 2023. 

10.	NICTA invited further submissions on a particular issue with a review following stakeholder input still on foot.

11.	On 11 September 2023 Starlink Internet Services (PNG) Limited (Starlink) filed licence applications with NICTA for various licences.

12.	On 18 December 2023 Starlink was granted an in-principle licence subject to finalisation, conclusion and agreement on terms and conditions.

13.	On 2 January 2024 the First Plaintiff announced the in-principle decision to grant the relevant licences to Starlink.

14.	On 12 January 2024 the First Plaintiff was served with correspondence from the Defendant dated 10 January 2024 requesting production of information and documents relating to the First Plaintiff’s announcement.

15.	On 15 January 2024 the First Plaintiff provided the information requested.

16.	On 18 January 2024 the First Plaintiff received correspondence form the Defendant seeking clarification of the First Plaintiff’s response.

17.	On 25 January 2024 the First Plaintiff responded.

18.	On 25 and 26 January 2024 the Defendant served the Second and Third Plaintiffs respectively with a request for information and production of documents relating to Starlink’s licence application.  On the Plaintiffs’ case, the request sought to establish the basis for the First Plaintiff making the announcement on 2 January 2024 and whether due process had been complied with in issuing the licence.
19.	On 28 February 2024 the Second Plaintiff was served with correspondence from the Defendant directing the Plaintiffs, pursuant to s 27 (4) of the Constitution, to not authorise grant of approval on any Network Operator Licence to Starlink, ensure that a network operating licence is not granted to Starlink unless clearance is issued by the Defendant and revoke the licence issued to Starlink pending further and wider public consultation with the relevant stakeholders (the decision).

20.	On the Plaintiff’s case the purpose of the direction was to enable the Defendant to investigate the licensing and consultation processes relating to the application by Starlink.

21.	On 5 April 2024 the Second Plaintiff sought the directions be lifted, that the Fifth Plaintiff be granted approval to issue the licence to Starlink and/or a meeting be convened to discuss the licensing process.

22.	On 10 June 2024 a meeting took place with the Third Plaintiff, officers of the Fifth Plaintiff and officers of the Defendant.

23.	On 28 June 2024 the Third Plaintiff requested by letter that the Defendant lift the direction.  That did not occur.

24.	Aggrieved by the Defendant’s decision, on 5 August 2024 the Plaintiffs sought leave for judicial review.

25.	On 10 September 2024 leave was granted.

26.	On 20 September 2024 the Plaintiffs filed a Notice of Motion pursuant to Order 16 r 5(1) of the National Court Rules (NCR), seeking relief in the form of certiorari and declaration.

27.	On 1 November 2024, Telikom filed its application for joinder.

28.	Telikom is a State-owned licensed operator providing retail and telecommunications services to its customers throughout Papua New Guinea.
 
29.	By Amended Notice of Motion filed 6 November 2024, Starlink sought to join the proceedings.

30.	On 6 March 2025 Starlink was given leave to withdraw its application for joinder.

CONSIDERATION  

31.	The Plaintiffs object to the affidavit of Telikom’s witness, Mr Amos Tepi filed 19 September 2024, on the basis inter alia that the affidavit contains opinion, argument and is otherwise misleading and should be struck out. Alternatively, if the Court is prepared to consider the evidence the issues raised should affect the weight of the evidence.  The Court notes the objections but in its discretion is not prepared on the hearing of this motion to rule on the admissibility of Mr Tepi’s evidence for the reasons that will become apparent during its consideration of the issues. 

32.	 With respect to the Plaintiff’s objections to joinder, it is firstly submitted that as the National Court proceeding is a judicial review proceeding, it is governed by the Rules in Order 16 National Court Rules and any interlocutory application in such proceedings must be brought within the Rules in Order 16. It is contended that as Telikom applied for joinder pursuant to Order 16 r 5(6) and Order 16 r 8(1) of the NCR and section 155(4) of the Constitution it has not correctly engaged the jurisdiction of the Court.  Reliance is placed on the Supreme Court decision in O’Neill v Eliakim [2016] SC 1539.

33.	It is submitted on behalf of Telikom that the application for joinder in a judicial review proceeding can be made pursuant to Order 16 r 5(6) and/or Order 16 r 8(1) of the NCR and section 155(4) of the Constitution. It is contended that in the absence of a specific rule such as Order 5 r 8 of the NCR as to joinder they are general rules that are wide enough to give the Court the necessary jurisdiction with respect to joinder.  Section 155(4) would then cover any gap.  It is further submitted that when it comes to joinder under Order 16 the Court has a discretionary power to ensure that those who are directly affected are joined to the proceedings before the substantive hearing and that that discretion is within the enshrined mandatory rules under Order 5 r 8. Therefore, even if the jurisdiction of the Court has not been properly invoked by Telikom (which is denied), the Court has unlimited discretion to deal with the issue of joinder before the substantive hearing which arises from Order 16 r 5. Reliance is placed on Kauba v National Executive Council [2014] N6025 and Vaki v Eliakim [2015] PGNC; N6129 as persuasive authority in this regard.

34.	With respect to Telikom’s interest to be joined to the proceedings its submissions are detailed at Part C of its written submissions filed 5 March 2025. It is contended that its joinder is relevant, necessary and genuine inter alia that as a state-owned enterprise, and one of the major companies under the relevant Act that provide retail and telecommunications services throughout Papua New Guinea, it is directly affected. This is because, the licence issued to Starlink, a global mega player to operate within the country is the subject of investigation by the Defendant, ending with the issuing of a direction. Where the Ombudsman is concerned with the process that granted the licence and the compliance with statutory provisions, including importantly, the compulsory requirement of public consultation, Telikom has a sufficient interest that is above all other industry participants. This is because it is the only retail player in the industry and hence is entitled to have its say.  If the decision is set aside, then Telikom will be directly affected, as will the people of Papua New Guinea.  Its joinder will also allow Telikom to prepare itself by advising the government. It will assist the Court as to whether the direction of the Defendant has cause.  Its involvement as a party will assist in any settlement outcome. It will ensure the protection of the integrity of the licencing and consultation process.

Has Telikom correctly invoked the Court’s jurisdiction?

35.	That there is an exclusive procedure for judicial review proceedings is settled law in this jurisdiction.  The authorities emphasise the special and peculiar role played by the judicial review procedure with Order 16 guiding the way judicial review proceedings are conducted (Peter Makeng v. Timbers (PNG) Limited (2008) N3117); Alex Timothy v. Francis Marus (2014) SC1403; O’Neill v Eliakim [2016] SC 1539; Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96; SC2280 ; Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485).

36.	Because Order 16 provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings, if a notice of motion contains an application for interlocutory relief that is not brought pursuant to a Rule in Order 16 then a fundamental error is committed. This is because the notice of motion has not engaged the jurisdiction of the Court to permit it to adjudicate upon the application (O’Neill v Eliakim (supra) at [18]).

37.	In its reliance on Order 16 r 5(6) and Order 16 r 8(1) of the NCR and section 155(4) of the Constitution, the provisions outlined in its Notice of Motion for joinder by deliberate choice given that the motion was further amended, the Court accepts that Telikom has not properly engaged the jurisdiction of the Court.

38.	Order 16 r 5 (6) is in these terms:

If on the hearing of the notice of motion the Court is of the opinion that any person 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.

39.	Order 16 r 5 (6) does not provide a source of power for the Court to join a party.  As is clear from its terms it is a provision that enables service of a Notice of Motion for substantive relief under Order 16 r 5 on an interested party to thus enable that party to be heard if they wish to be heard.  Following the grant of leave and upon service of the Notice of Motion under Order 16 r 5(1) of the NCR, a person has the choice of being heard or not heard on the application for judicial review. 

40.	As Makail J observed at [13] in Kauba v National Executive Council (2014] PGNC 317; N6025, Order 16 r (2) and (6) are silent on how a 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, a person or entity is entitled as of right to be heard without being joined.  His Honour went on to refer to the decision in Dynasty Estates Limited v Nambawan Super Limited [2015] SC1427 where the Supreme Court (Kirriwom, Makail, & Ipang JJ) said that the person or entity may either apply to be joined in the proceeding or appear and be heard without being formally joined. His Honour also expressed the view, among other things, that because in his view the ruling in Peter Makeng was inconclusive, the issue regarding Order 5 r 8 (1) as a source of jurisdiction for the Court to hear joinder applications in judicial review proceedings remained open for more judicial determination.  It was His Honour’s view that the procedure set out under Order 16 r 5 (2) inferentially addressed the issue of joinder and that as long as an interested party was directly affected by the proceeding, the party had the right to be joined.  His Honour went on to express the view at [15] that the Rules give the Court a wide discretion at a directions hearing to order amongst other things, joinder of parties, including on its own motion.  

41.	I pause here to detail Order 5 r 8 (1) of the NCR which is in these terms:

8. Addition of parties.

(1) Where a person who is not a party-

(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,
the Court on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the conduct of the proceedings.

42.	In Summit Development Ltd v Chan [2016] PGNC 199; N6390 (24 June 2016) Gava-Nanu J considered an application by an interested party seeking to be joined pursuant to Order 16 r 9 (1) and Order 5 r 8 (1) of the NCR. At the time the learned Judge granted the application, time did not permit him to offer what be viewed to be constructive comments on Order 5 r 8 (1). In published reasons His Honour concluded that the Rules that should be invoked for joinder applications are Orders 5 r 8 (1), 16 r 5 (2) and 16 r 13(6)(4)(c), which together with s 155(4) of the Constitution would collectively provide the jurisdictional basis for a joinder application.  

43.	The learned Judge went on to observe that there had been a number of National Court decisions where either Order 16 r 5 (2) or Order 5 r 8(1) had been invoked in joinder applications (Jack Nou v. Richard Cherake (2004) N2539; Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (2006) N3061; Ken Norae Mondiai v. Minister for Forests (2008) N3298 and Simon Kauba v. National Executive Council & The Independent State of Papua New Guinea (2015) N6025).  

44.	The opportunity for judicial consideration of the question of the correct jurisdiction to be relied upon presented a few months later in O’Neill v Eliakim (supra) a decision handed down on 29 September 2016.  The Supreme Court (Kandakasi J (as he then was), Hartshorn & Kassman JJ) determined that if the Court was satisfied that the interested party was a proper person to be heard, Order 16 Rule 9(1) of NCR provided the mechanism for that party to be heard at the hearing of a Notice of Motion pursuant to Order 16 r 5. The Court also noted the broad powers given to the Court under Order 16 Rule 13(6) and (8) of the NCR to enable an interested party to be heard. It is helpful at this juncture to outline the relevant parts of that decision which appear at [19] to [21] (emphasis in the original):

19.	As to the third respondents not being able to have recourse to a provision in Order 16, as referred to by the appellant, there are procedures under Order 16 which were available to the third respondents, for an interested party who has not been served with a notice of motion to be heard regarding a judicial review proceeding. Order 16 Rule 9(1) National Court Rules provides one such mechanism. It provides:

“On the hearing of any Notice of Motion under Rule 5, any person who desires to be heard in opposition to the Notice of Motion and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the Notice of Motion.”

20.	Further, the third respondents could also have sought to be heard through orders made at a directions hearing or pre-hearing conference, where Judges are given broad powers under Order 16 Rule 13(6) and (8) National Court Rules. By proceeding in those ways, the third respondents could have properly engaged the jurisdiction of the Court to join them to the proceedings and so enable them to be heard.

21.	Order 16 r 13(6)(4) states that a Judge may consider and determine and issue directions or orders for the prompt hearing of an application including, amongst other things, on the “Joinder of persons served with the Notice of Motion as parties to the proceedings” (Sub-rule (6)(4)(c)).

22.	Order 16 r 13(8) the goes on to provide that at a Pre-hearing conference, the Judge may confirm compliance with directions issued at the Directions Hearing under Sub-rules (5) and (6).

23.	These rules, which include Order 16 r 13(13) of the NCR, are part of the Judicial Review (Amendment) Rules, 2005 which codified and particularised the procedure under Order 16, widening the scope of the procedure and conferring a wider discretion on the Court, emphasing among other things a fair disposition of cases (Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Paul Asakusa v. Andrew Kumbakor (2008) N3303; Innovest Limited v. Pruaitch (2014) N5949); Summit Development Ltd v Chan [2016] PGNC 199; N6390 at [18]).

24.	The views, then, expressed in Kauba v National Executive Council [2014] N6025, relied upon by Telikom as to the jurisdictional basis for the bringing of a joinder application, and the views expressed in Summit Development Ltd v Chan [2016] PGNC 199; N6390 (24 June 2016) must be considered in light of the principles on point enunciated in O’Neill v Eliakim, a binding authority.  This includes the views expressed in Summit Development Ltd v Chan at [30] inter alia that Order 16 r 9 (1) is silent on joinder applications and the applicant before the learned Judge in that case could not rely on the Rule.

25.	Further, the views expressed in these and earlier decisions as to the applicability of Order 5 r 8 of the NCR as a source of jurisdiction for joinder must be considered in light of subsequent Supreme Court authority which reiterated the exclusive nature of Order 16 proceedings.

26.	In Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 the Court (Kandaskasi DCJ, Murray & Kangwia) affirmed at [7]:

The law on process and procedure for judicial review proceedings is now clearly established law. Judicial review is a special process. As such, it is exclusively provided for by Order 16 of the National Court Rules 1989. Hence, any application for judicial review and any issue as to its competence, summary dismissal and any other issue needs to be taken in accordance with the process and procedure provided for thereunder. This means the other provisions in the National Court Rules do not apply to judicial review proceedings.

27.	With respect to Order 5 r 8 as a proper basis for the making of a joinder order in proceedings for judicial review or assist in the interpretation of general provisions of Order 16 in the absence of specific provisions as submitted, the Supreme Court was clear in O’Neill v Eliakim (supra) at [20] when it said:

We are satisfied therefore that the third respondents did not properly invoke the jurisdiction of the National Court to make the order that they sought of their joinder.  The further amended notice of motion by relying on Order 5 Rule 8(1) was incompetent and should have been dismissed as Order 5 Rule 8 does not provide a jurisdictional basis to make an order in judicial review for joinder. ….

28.	The decision of Vaki v Eliakin [2015] PGNC; N6129, relied upon by Telikom, is of no assistance to it.  Mr Vakim was the Fourth Respondent in the appeal in O’Neill v Eliakim (supra). The relevant principles arising out of that appeal have been discussed earlier, the appeal upheld on the basis that the primary judge was wrong and fell into error in hearing the application for joinder when the jurisdiction of the Court had not been properly engaged.

29.	With respect to Order 16 r 8(1) as a further source of power relied upon by Telikom, Order 16 r 8(1) is in these terms:

8. Application for discovery, interrogatories, cross-examination etc.
(UK. 53/8)

(1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

(2) In this sub-rule “interlocutory application” includes an application for an order under Order 9 Divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent of the parties

30.	This rule cannot be viewed as a source of power for the Court to join a party.  It does not apply to any or all applications rather is restricted to discovery and inspection of documents and interrogatories and matters of that ilk.  That is clear from the use of the word “etc” in its title.   In the Oxford English online dictionary, "etc." is defined as

an abbreviation for "et cetera," meaning "and other things" or "and so forth," used at the end of a list to indicate that similar items are also included but not explicitly mentioned. 
[Emphasis added] 

31.	This was the view held in O’Neill v Eliakim [2016] SC 1539 where the Supreme Court said at [17]:
Order 16 Rule 8(2) defines “interlocutory application” and in our view restricts it to what is described in the heading to Rule 8. Given this we respectfully disagree with the Supreme Court in Kuk v. O’Neill (supra) if the effect of its decision was that any interlocutory application pursuant to any Rule in the National Court Rules in addition to those referred to in Order 16 Rule 8(2) can be made in a judicial review proceeding.

32.	While Order 16 r (13)(13)(1) may, in appropriate cases, provide “a door” for reliance on other rules in the NCR where the rules are not prescribed or lacking in Order 16, that is not the case here.  There are rules within Order 16 that permit the Court to join a directly affected party to judicial review proceedings.

33.	With respect to s 155(4) of the Constitution, as a further ground of jurisdiction, which vests the Court with "an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case" the Court accepts the submission on behalf of the Plaintiffs that where remedies are already available, which is the case with Order 16 of the Rules, the provision does not apply.

34.	As the Supreme Court held in Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 (Jalina, Gavara-Nanu & Kandakasi JJ) at [41] the five important features or attributes of s. 155 (4) of the Constitution are:

1.	The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as a necessary to do justice in the particular circumstances of a case" before the Court;

2.	Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;

3.	Where remedies are already provided for under other law, the provision does not apply;

4.	The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number it is constituted, except as may be provided for by any law; and

5.	A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.

[Underlining added]

35.	As there are remedies available to Telikom under Order 16, it cannot rely upon s155(4) of the Constitution. 

36.	In conclusion, in my respectful view and based on the principles that arise form the authorities to which I have referred, including the decision in O’Neill & Eliakim which binds me:

a.	Orders 16 Rule 9(1) and 16 r 13(6)(4)(c) and (8) provide the jurisdictional basis for joinder in judicial review;

b.	Order 5 Rule 8 and 16 r 8(1) of the NCR would not provide a jurisdictional basis for joinder in judicial review; 

c.	It is unlikely that Orders 16 r 5 (2) and (6) would provide a jurisdictional basis following the decision of O’Neill v Eliakim (supra); and

d.	Section 155(4) of the Constitution would not provide a source of power for the Court to make a joinder order in judicial review given the existing remedies available to interested parties under Order 16.

37.	In consequence, having not properly invoked the jurisdiction of the Court to make the order that it seeks for its joinder, and having incorrectly relied on Order 16 r 5(6) and Order 16 r 8(1) of the NCR and section 155(4) of the Constitution to do so, Telikom’s application for joinder should be dismissed.

Does Telikom have a direct interest?

38.	There is a further reason to dismiss the application and that is the evidence does not establish that Telikom is directly affected by the judicial review proceedings before the Court.  This is not a case where Telikom has a direct interest in the subject matter of the action or in a question of law or fact in the action, where its cooperation might be necessary to enforce a court order, where it has a specific right under an Act or Rule to be joined or where its joinder is necessary to ensure that all matters in dispute can be properly and fairly determined (Yanta Development Association v Piu Land Group Inc [2005] SC 798 cited with approval in Kauba at [14], see also Passismanua Inland Timber Resource Pty Ltd & Ors v Nelulu Land Group Inc & Ors (2014) SC1404 at [22]).

39.	That it is necessary for a person or entity to be directly affected to enable a successful joinder to judicial review proceedings was discussed in O’Neill v. Eliakim (supra) where the Court said at [44]:

As to the nature of the interest that is required to be a party in a judicial review proceeding, a different test is contemplated to the tests provided for under Order 5 Rule 8(1) National Court Rules. Order 16 Rule 13(5) National Court Rules refers to service on “persons directly affected by the decision the subject of the review”.

40.	That it is necessary for a person or entity to be directly affected to enable a successful joinder to judicial review proceedings was reaffirmed in Hapa v Desh Besh Enterprises Limited [2020] PGSC 146; SC2062 Hartshorn J citing with approval at [11] O’Neill v. Eliakim at [44].

41.	The fact that Telikom is the largest telecommunications company in Papua New Guinea, wholly government owned, does not permit a conclusion that it is directly affected by the decision. It may have a keen interest in the outcome of the proceedings, however being an industry participant, and a major one at that, does not in itself suggest it has a direct interest in the decision to require joinder.  A simple analogy demonstrates the point.  A rugby league club may have a keen interest in whether the acquisition by an opposing club of its star winger breached the salary cap and the impacts of any breach for a premiership season, however its keen interest would not entitle it to engage in discussions on the contract and any purported breach that may then take place between the Salary Cap Auditor and club and player who signed the contract.

42.	 Indeed, in Administration of Territory of Papua and New Guinea v Director of District Administration, ex parte Sabusa Sawmilling Co Pty Ltd [1971] PGSC 61, when dismissing an application by an interested party to be added as a respondent to an appeal, Prentice J made the following observations on sufficiency of interest and connection to the subject matter of proceedings before him which concerned title to land and customary rights:

One can imagine many people or bodies, which would have a commercial or administrative interest in the settlement or conclusion of a land dispute; the Police Commissioner because of law and order problems, the Electricity Commission because it might wish to run a power line, the Education Department because it might intend to seek permission to build a school, adjoining owners who wish for quietude or any number of Government Departments who wish to go about their business. But surely it would be intolerable for the Court to allow an intrusion of such parties into a dispute between two parties only (in effect) to ownership of a parcel of land; under colour be it noted of a rule clearly intended merely to prevent procedural failures comparable to those achieved by pleas in abatement.

43.	While Telikom has an interest, it has no direct interest in the subject matter of the dispute such as would support its application.  It is the First to Fourth Plaintiffs, not Telikom, who are the subject of the direction and are directly affected by it.  It is the Plaintiff’s, not Telikom, who have a right to test the validity of the direction, one that concerns the ability of Starlink to operate a licence in Papua New Guinea, not Telikom.  

44.	As to Mr Tepi’s evidence on behalf of Telikom, with respect to the complaint that the statutory procedures for the grant of the operating licence to Starlink were not followed, that is an issue the Defendant can address, including whether the direction of the Defendant had cause or not.  While in oral submissions Learned Counsel for Telikom contended that the Plaintiffs are regulatory authorities fighting on behalf of Starlink, whereas Telikom is “the people of this country”, the Defendant, who is legally represented, is not a commercial innocent.  It is an independent institution with investigatory powers, established under s217 of the Constitution, its constitutional responsibility inter alia to promote good governance and protect the citizens of Papua New Guinea from administrative abuse and injustice (ss 218 and 219).  There can be no suggestion on the evidence before the Court that it is not capable of addressing the issues in the proceedings or will not be ably represented to that end, a conclusion supported by the fact that the Defendant did not support the application for joinder, its position to neither support nor oppose. If Telikom wishes to give evidence in the proceedings, and the Defendant views its contribution as one helpful to its case, it may do so as a witness.

45.	In conclusion, the facts of this case do not warrant the exercise of the Court’s discretion in favour of Telikom being joined as a party.  Telikom has no right to challenge the decision as it does not directly affect it.  It is not the party issuing the direction.  No allegations have been made against it.  As such there is nothing it can contribute to the proceedings or assist the Court to effectively and completely adjudicate and settle the questions in dispute. Its submission that its joinder would assist the Court in any settlement outcome is unpersuasive.

46.	Judicial review is not concerned with the merits of the decision but with the decision-making process. If the decision is set aside – and that is yet to be determined - and subject to any appeal, it will because, firstly, a ground of review was properly made out and secondly, the relief sought should be granted.  It is an outcome that would not prohibit Telikom from undertaking the steps that its advances in support of its application for joinder, for example, advising the government on industry matters through its reporting procedures, acting as an honest broker in any industry settlement discussions or otherwise pursuing its interests on its behalf or on the behalf of the people of Papua New Guinea as its views appropriate. 
  
47.	On the handing down of this decision I shall take submissions on costs.

ORDERS

48.	Subject to any orders on costs, the Court makes the following orders:
The Further Amended Notice of Motion of Telikom Limited (an interested party) filed 1 November 2024 is dismissed.
Time to abridge.

Lawyers for the interested party Telikom Limited: Lhyrn Lawyers
Lawyers for the plaintiffs: Allens
Lawyers for the defendant: Counsel to the Ombudsman Commission