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Tambe v Tamsen [2004] PGNC 66; N2714 (16 November 2004)

N2714

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 7 OF 2002

BETWEEN:

NANCY TAMBE & OTHERS
-Applicants-

AND:

LINDA TAMSEN & ANOTHER
-Respondents-

WAIGANI : Injia, DCJ
2004 : 16th November

JUDICIAL REVIEW – Practice and procedure – Amendments – Statement in Support – Application made after leave granted – Principles applicable – National Court Rules O 16 r 3; r 6(2), (3).

Cases cited in the judgment:
The Papua Club Inc. v Nasqum Holdings Ltd & Others N2273 (2202).
Michael Kewa & Others v Elias Mai Kombo N2688 (2004)

Counsel:
Ms Sawanga for the Applicants
Mr Griffin for the Respondents

16th November 2004

INJIA, DCJ: The Applicants apply for leave to amend their Statement in Support filed under O 16 r 3(3) of the National Court Rules. This Statement was first filed in support of their application for leave to apply for judicial review. Leave was granted based on those grounds set out in the Statement. The amendment proposed is to add new grounds set out in the Statement. There is no amendments sought to the names and particulars of the parties and the relief sought in the statement.

At the hearing of the substantive application on 17th September 2004 before me, it became clear to me that the correct decision to review was not the original decision made on 20th September 2000 by the Respondents to terminate the Applicants’ employment, but their subsequent decision made on 20th April 2001. In the subsequent decision, the Respondents decided not to accept the Public Service Commission’s ("Commission") recommendation made to them to revoke their original decision and to re-instate the Applicants. Instead, they decided to confirm their original decision. On 17 September 2004, during a pre-hearing review of the case, I intimated to counsel that because the Commission had conducted an administrative review of the Respondent’s original decision as provided for under the Public Service Management Act, the Respondents’ subsequent decision superseded their original decision and the nature and focus of the review will therefore be different. I suggested to the Applicant’s counsel that the correct decision to review is the subsequent decision of the Respondents. I then granted liberty to the Applicants to apply to amend the Statement under O 16 r 6(2). I indicated that any such application would be determined on its own merits. This present is such an application.

The Application is supported by the affidavit of Ms Sawanga, of counsel for the Applicants. The Respondents contest the application. They rely on an affidavit filed by Ms Thompson, of counsel for the Respondents. Both affidavits explain what transpired before me and other relevant matters such as delay in making the application and likely prejudice to the parties.

Ms Sawanga submits the application should be granted because the same cause of action remains as against the same Respondents. Only the grounds are sought to be amended to reflect the correct decision referred to. She submits the Respondents will not suffer any prejudice as a result of the amendment.

Mr Griffin of counsel for the Respondents submits the application should be dismissed because the proposed grounds in effect introduces a new cause of action, which was not pleaded in the original Statement. It is new because the focus of the review now will be the Respondents’ decision made on the Commission’s recommendation and not the original decision. The new cause of action is different from that cause of action upon which leave was granted in the first place. He also submits these proceedings were commenced in 2002 and there has been an undue delay in making the application. His clients will also suffer prejudice if the amendment is allowed at this late stage of the proceedings.

Order 16 r 6(2) and (3) provides:-

"(2) The Court may on the hearing of the summons allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the Applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party."

In my view, O 16 r 6(2) allows an applicant to apply to amend his or her grounds pleaded in the Statement. The Court has a wide discretion. The discretion is exercised in appropriate cases. The principles on amendment are similar to those applicable to actions commenced by Writ of Summons or Originating Summons. I say this because of O 16 r 8. There are many relevant considerations which the Court will consider in determining the application. Five of those are summarized by Justice Gavara-Nanu in The Papua Club Inc. v Nasqum Holdings Ltd & Others N2273 (2202). In Michael Kewa & Others v Elias Mai Kombo N2688 (2004), Justice Cannings added three (3) more considerations to the list. The eight (8) considerations are:-

"1. Will the amendment enable the Court to determine the real question in controversy between the parties?

2. Will the amendment correct any defect or error in the proceedings?
   
3. Will the amendment cause real prejudice or injustice to the other party?
   
4. Is the application for such amendment made mala fide or bona fide?
   
5. Can the other party be fairly compensated with costs for the amendment?
   
6. Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?
   
7. Where do the interests of justice lie?
   
8. Is the proposed amendment efficacious? That is, is it a proper amendment?
   

Those eight (8) considerations apply to actions commence by Writ of Summons or Originating Summons. In my view, they equally apply to applications for judicial review under Order 16, by virtue of O 16 r 8. But then judicial review, by its nature, is a review of a decision made by a statutory tribunal or authority. It involves an examination of its decision-making process, the review being confined to what transpired before the decision-making tribunal or authority. The review process is similar to an appeal process in some respects.

Therefore, there must be some special consideration given to the special nature of judicial review proceedings. Although application for judicial review is not an appeal, the principles on amendment of grounds of appeal should equally apply, with appropriate modification, to judicial review applications. For this reason, I would add one (1) more considerations to the list of considerations set out in the above two cases. That is, the application must not seek to introduce a completely new ground or relief which is not sought in the Statement in Support filed under O16 r 3(1); or seek to introduce a ground or relief which is not available in judicial review, or seek to enjoin a person, as a new party to the proceedings, who is not directly affected by the decision.

In terms of the procedure, the application may be made at any stage of the proceedings before judgment. In relation to amendments seeking to add new grounds of review, O 16 r 6(2) provides that such application be made at the time of the hearing.

In a case where the proposed amendment is substantive in nature, the application must be made on notice to the Respondents, and supported by affidavit e.g. amendment to grounds set out in the Statement: O 16 r 6(3).

I have considered the submissions and find that there is no new cause of action being introduced in the proposed amendment. The decision under challenge under the proposed amendments is on the same subject matter of the Applicant’s dismissal for disciplinary reasons. The parties are the same, the Respondents’ action complained of is similar under both decisions because in the subsequent decision, simply they re-affirmed or confirmed their original decision giving basically the same reasons they gave in their original decision. I also consider that the Respondents will not suffer any prejudice because the default by not pleading the correct decision is in my view a technical procedural blunder on the Applicant’s part which should not in any substantial way change the Respondent’s position in terms of preparing their defence.

I do agree with Mr Griffin however that the application is belated. The Applicants’ lawyer should have picked up this basic and fundamental defect early and made this application much earlier thereby unnecessary expense to all parties including their own clients. In the interest of justice, however, I will not refuse the application for this reason alone. But I will penalize the Applicants with costs.

For these reasons, I grant the application but I award costs of this application to the Respondents on a solicitor-client basis. I further order that the matter be placed on the next call-over list for fixture of a fresh trial date, to come before myself, as the matter is somewhat part-heard before me.
________________________________________________________________

Lawyer for the Applicants : Harricknen Lawyers
Lawyer for the Respondents : Young & Williams