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National Court of Papua New Guinea |
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PAPUA
NEW GUINEA
[IN THE NATIONAL COURT OF
JUSTICE]
O S NO. 126 OF
2004
BETWEEN:
KENN NORAE
MONDIAI
First
Applicant
AND:
THE PNG ECO
FORESTRY FORUM
INCORPORATED
ASSOCIATION
Second
Applicant
AND:
MINISTER FOR
FOREST,
THE HONOURABLE PATRICK
PRUAITCH
First
Respondent
AND:
THE PAPUA NEW
GUINEA FOREST AUTHORITY
Second
Respondent
AND:
G.L NIUGINI
LTD
Third
Respondent
AND:
PNG FOREST
INDUSTRY ASSOCIATION
Fourth Respondent
Waigani: Gavara-Nanu,
J
2008: 13, 15, 18 February & 4 April
PRACTICE AND PROCEDURE
– Judicial review – O 16 rr 5 (2) and 9 (1) – Application to
be joined as parties to substantive
application for judicial review –
Relevant test under O 16 r 5 (2) – Whether applicants are persons
"directly affected"
– Relevant test under O 16 r 9 (1) – Whether
applicants are "proper persons" – Application made under O 16 r 5
(2) is
different to application made under O 16 r 9 (1 - Applicants cannot rely on both
rules – Abuse of
process.
Cases
cited:
Andrew Nagari v. Rural
Development Bank N3295
Jack Nou v.
Richard Cherake N2539
Yanta
Development Assoc. & Ors v. Piu Land Group Inc. & Ors
SC798
Counsel:
N.
Kubak, for Applicants
J. Brooks, for
Applicants/Respondents
4 April, 2008
1 GAVARA-NANU J: These
are applications by 17 Incorporated Land Groups (ILGs) to be joined as parties
to these proceedings. The names of all 17 applicants
are found in their
respective applications which were filed by way of Notices of Motion on 29 June
2006. The applications (documents)
are numbered in sequence from 122 to 138.
2 The applications are made pursuant to O 16 r 9 (1) of the
National Court Rules.
3 The
matter first came before me on 13 February 2008. Other parties in the
proceedings are represented by Mr Ian Shepherd and Mr
Bill Frizzel. They both
told the Court on 13 February, 2008, that they do not oppose the applicants
being joined as parties. Thus,
the only party opposing these applications is the
applicants/respondents. As a result, Mr Shepherd and Frizzel were excused from
further appearances in these applications.
4 On 13 February, 2008, Mr
Brooks raised an objection that appropriate
rule under which the applicants should
move their applications is O 16 r 5 (2) of
the National Court Rules. He said the
requirement for O 16 r 5 (2) to be invoked in applications of this kind has
already been decided by the Court in Jack Nou
v. Richard Cherake N2539, which has since been approved by the Supreme
Court in Yanta & Ors v. Piu &
Ors SC798. Thus, it was submitted that it is now settled that the
relevant rule to invoke is O 16 r 5
(2). Mr. Kubak has conceded that O 16 r 5(2) is the appropriate
rule to BE invoked by the applicants.
5 Following Mr Kubak’s concession, the matter was recalled on 18
February 2008, for lawyers to advance further arguments, if
any, particularly
with respect to the application of O 16 r 9 (1) by the applicants. Despite his
concession, Mr Kubak maintained
that O 16 r 9 (1) is broad in its terms and
argued that applicants are covered by the terms "as proper persons" in that
rule and can invoke the
rule to obtain the relief they are
seeking i.e that they as "proper persons" be joined as parties in the
proceedings and be heard at the
hearing of the summons. In other words, the
applicants still rely on O 16 r 9 (1) to obtain the relief they are seeking.
6 Mr. Brooks has submitted that all 17 applications should be dismissed for
abuse of process, arguing that the decision by the applicants
to continue to
rely on O 16 r 9(1) is fatal as it amounts to an improper use of the
Rules. He submitted that applicants
having conceded that O 16 r 5 (2) is the correct
rule for them to invoke, their
applications are no longer on foot, because by their concession, the applicants
have effectively abandoned
their applications which are made pursuant to O 16 r
9 (1).
7 Mr. Kubak however maintained that his clients have not
abandoned their applications. He told the Court that they only abandoned
the
second relief they are seeking, namely that they be served with copies of all
the relevant documents. He contended that applicants
still seek the first relief
in their respective applications, which is to be joined as parties as "proper
persons" under O 16 r 9
(1) and be heard at the hearing of the summons. He then
applied for all 17 applications to be adjourned to the hearing of the summons
when the applicants will renew their applications. However, he also intimated
that applicants may amend their applications before
the hearing of the summons.
8 In the alternative, Mr. Kubak submitted that if the Court refuses the
applicants’ application to adjourn these applications,
then the Court
should grant the relief the applicants are seeking and order that they be joined
as parties and be heard at the hearing
of the summons as "proper persons" under
O 16 r 9 (1).
9 Mr. Brooks contended that to grant the relief the
applicants are seeking would set a bad precedent because applications are being
made under a wrong rule, which is a
clear abuse of process. He further argued that applications being made under a
wrong rule are not properly before me
and they should be summarily dismissed.
10 I invited Mr Kubak to also
address the Court on the affidavit material adduced by the
applicants/respondents upon which Mr Brooks
relied heavily to argue that all 17
applicants are not recognized ILGs, thus they lack the capacity to make these
applications. Mr
Brooks argued that this goes to the root of each application.
He submitted that the affidavit evidence clearly shows that the Registrar
of
ILGs does not have any records of the 17 applicants being registered as
recognized ILGs. Thus, it was argued that the certificates
of recognition
purportedly issued by the Registrar upon which the applicants have placed
reliance are not authentic and the applicants/respondents
having established
that there are no records of these certificates being issued by the Registrar,
they bear no weight and should
be disregarded.
11 Mr Kubak argued that
the Court should nonetheless take judicial notice of the certificates as
evidence that all 17 applicants are
duly recognized ILGs.
12 It is
appropriate that I set out O 16 r 5 (2) and O 16 r 9 (1) in determining the
issues before me.
13 O 16 r 5 (2) provides:
5. Mode of applying for judicial review (UK 53/5)
(2) The summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein, the summons must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
14 O 16 r 9 (1) provides:
9. Hearing of application for judicial review (UK 53/9)
(1) On the hearing of any summons under Rule 5, any person who desires to be heard in opposition to the summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with summons.
15 Issue
regarding application of O 16 r 9 (1) having been raised first, I will discuss
it first. The rule allows a party or a
person to be heard by the Court in opposition to the summons on an application
being made by that person even
though the person may not have been served with
summons, if the person appears to the Court to be a "proper person" who should
be
heard in opposition to the summons. Thus the test under this
rule is whether the person applying to
be heard is a "proper person" to be heard in opposition to the summons. O 16 r 5
(2) on the other
hand provides that summons must be served on all persons who
are "directly affected" by the summons. Thus the test under this
rule is whether the person applying to
be served with summons is a person who is "directly affected" by the summons.
See, Jack Nou v. Richard Cherake
(supra). The requirement for the service of the summons on the person directly
affected is mandatory. Implicit in the rule
is that the person directly affected would be served with the summons
upon an application being made by the person. Further implicit
in the
rule is that the person directly
affected would be joined as a party to the proceedings upon his application
being granted.
16 It is not in dispute that the applicants want to be
joined as parties and be heard at the hearing of the summons as "proper persons"
under O 16 r 9 (1). In this regard, the Supreme Court has in approving the
decision in Jack Nou v Richard Chirake
(supra), held that a person wishing to be joined as a party in an
application of the kind now before the Court, must invoke O 16 r
5 (2). I should
say that I respectfully agree with such application of O 16 r 5 (2), quite apart
from the fact that as a single judge,
I am bound to follow the decision. That
being said, the applicants having decided to continue to rely on O 16 r 9 (1),
the applications
are not properly before me.
17 The applicants can as a
matter of law only invoke O 16 r 5 (2), if they want to be heard and for their
applications to be properly
before the Court. But even then, before they can be
heard, they must first show that they have the capacity to make these
applications
by showing that they are duly registered recognized ILGs, then,
they must, as required by the rule,
prove that they are persons or entities "directly affected" by the summons. See
Jack Nou v. Richard Cherake (supra).
The applicants carry the ultimate onus to satisfy these requirements which are
mandatory. They have failed to satisfy these
requirements. Then the question
that arises is, whether I should grant the application by the applicants to
adjourn their applications
to the hearing of the summons.
18 I have come
to the conclusion that I cannot adjourn the applications to the hearing of the
summons. There are three compelling
reasons for coming to this conclusion.
First, the applicants still rely on O 16 r 9 (1) to make their applications.
This is a wrong
provision to invoke, and there is a clear misapprehension of the
rule by the applicants, which means
the applications are an abuse of process and are therefore not properly before
the Court. This factor
alone invites the Court to use its inherent jurisdiction
to summarily dismiss the applications. In
Andrew Nagari v. Rurual Development
Bank N3295, this Court made this very point. The Court said:
"The phrase ‘abuse of process’ connotes that the process of the Court must be used properly and bona fide and are not to be abused. Thus, where the Court’s machinery is improperly and incorrectly used, the Court has the duty to prevent such abuse of its process."
19 Second, even if I was minded to grant the adjournment the
applicants are seeking, on the evidence before me, the applicants have
not shown
that they have the capacity to make these applications. There is compelling
evidence from the applicants/respondents that
there are no records in the Office
of the Registrar of the ILGs that applicants are registered recognized ILGs.
There is an affidavit
of search to this effect. This must seriously put into
question the authenticity of the purported certificates of recognition relied
upon by the applicants. Thus, urging by Mr Kubak for me to give judicial notice
to these purported certificates of recognition has
no legal basis. It suffices
to say that the certificates are not the kind of documents to which this Court
can give judicial notice.
This means I must give weight to the evidence by the
applicants/respondents that applicants are not recognized ILGs.
20 Third,
the applicants carry the ultimate onus to prove that they are directly affected
by the summons. They have as I indicated
above, failed to discharge this onus.
There is no evidence at all before me, even to suggest that they may be directly
affected by
the summons. Thus, even if I was to grant the adjournment the
applicants are seeking, and thus give them an opportunity to amend
their
applications before the hearing of the summons, including the possibility of
them eventually deciding to abandon O 16 r 9 (1)
and rely solely on O 16 r 5
(2), such amendment will still not save the applications. The end result is it
will serve no purpose
in adjourning the applications. The applicants’
application to adjourn their applications to the hearing of the summons
therefore
has no merit.
21 It must be remembered that the
Rules are designed to enhance and
protect rights of the parties and to ensure that the matters coming before the
Court are disposed promptly
and fairly. For this reason, and in the interest of
justice, that Rules include
prohibitions against abuse of the process of the Court and it is the general
concern of the Court always that its
Rules are properly used to achieve
finality in litigation promptly and fairly. Thus any use of the
Rules to unnecessarily delay the
prompt and fair disposal of matters would run counter to the purpose for which
the Rules are designed. The applicants
are doing just that, i.e by their application for adjournment they are using the
Rules to unnecessarily delay the
prompt and fair disposal of this case.
22 For the foregoing reasons, the
application by the applicants to adjourn these applications to the hearing of
the summons is refused
and all 17 applications are dismissed with costs.
______________________________________________
Nobert Kubak &
Co Lawyers: Lawyers for the
Applicants
Gadens Lawyers: Lawyers
for the Respondents
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