N8402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 704 OF 2018

BETWEEN:
JUSTICE FOUNDATION FOR PORGERA LTD
First Plaintiff

AND:
KIMALEYA ONDALANE of Tieni Yauga Clan, RUBEN NALEPE of Kulumani Ambo Edeme Clan, PAWE MENEPA of Angalani Oyopene Clan, JOHN KULINA of Tieni Lakima Clan and KULE LAIYO of Pulumani Wango Clan
Second to Sixth Plaintiffs

AND:
WAPI KOPI,
Mining Warden of the Mineral Resources Authority
First Defendant

AND:
MINERAL RESOURCES AUTHORITY OF PNG
Second Defendant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J,
2020: 13th May

PRACTICE AND PROCEDURE - Application for Joinder – whether the applicant for joinder has sufficient interest in the proceeding and has a right to be heard – whether the inclusion of the applicant for joinder to the proceedings would ensure that all matters in dispute may be effectually and completely determined and adjudicated upon - it is necessary that the applicant for joinder be joined as a defendant to the proceeding as circumstances have changed and whatever decisions made by the court will affect its economic and proprietary interests – application granted

Cases Cited:
Papua New Guinea Cases

Mainland Holdings Ltd v. Stobbs (2003) N2522 
Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638 
Coecon Ltd v. Westpac Bank  (PNG) Ltd (2012 ) N5097
Bobby Enda v. Kanawi Pouru (2013) N5314
Jimmy Varika v. Mendikwae Ltd (2016) N6228

Overseas Cases

Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 

Counsel:

Mr. J. Haiara, for the Plaintiffs
Mr. D. Hill, for the Defendants
Mr. M.M. Varitimos Q.C. and Mr. D. Wood, for Barrick (Niugini) Limited

13th May, 2020

1. HARTSHORN J: This is a decision on a contested application by Barrick (Niugini) Limited (Barrick) to be added as a defendant to this proceeding. The application is supported by the defendants and opposed by the plaintiffs.

Background

2. The plaintiffs are a company purporting to represent the interests of various customary landowners and five such landowners. They commenced this proceeding claiming declaratory relief concerning a Warden Hearing which was conducted by the first defendant on 27th September 2018 at Porgera. The Warden Hearing was conducted pursuant to s. 108 Mining Act 1992. 

3. The plaintiffs also seek a permanent injunction restraining the first defendant from presiding over and conducting any Wardens Hearing in respect of an application for an extension of Exploration Licence Tenements EL 858 and EL454. 

4. This court refused an application by Barrick to be joined to this proceeding. The plaintiffs then filed a notice of motion seeking to amend its originating summons to claim amongst others, an additional declaration concerning the administration of all mining leases, exploration licences, permits and tenements involving the Porgera Gold Mine and the Porgera Region from 1st January 2018, and orders restraining the defendants from dealing with 19 listed tenements and for them to produce certain documents.

This application

5. Barrick submits that it should be joined as a defendant to this proceeding as amongst others:

a)	there has been a significant change of circumstances since the refusal of this court to permit its joinder which now warrants such joinder;

b)	it is the holder of 19 tenements including Exploration Licences EL454 and EL858 relating to the Porgera Mine, the subject of this proceeding;

c)	if the relief sought by the plaintiffs in their December notice of motion and their proposed amended originating summons are granted, it will directly affect the proprietary and economic interests of Barrick and the Porgera Joint Venture, which are essential to the operation of the Porgera Mine.

6. The plaintiffs submit that Barrick had already unsuccessfully applied to be joined. Its only recourse is to appeal this court's refusal of its application to be joined. Further, the purported change of circumstances are speculation.

Consideration

7. In regard to the plaintiffs’ submission that the only recourse of Barrick is to appeal this court's refusal of its previous application to join, in Mainland Holdings Ltd v. Stobbs (2003) N2522, Injia DCJ (as he then was) said the following concerning this court's wide discretionary powers to control the management of a case before it:

"In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations including change in relevant circumstances which render the continuation of the order no longer necessary or appropriate."

8. I respectfully agree with His Honour's comments. In this instance application is made pursuant to amongst others, the inherent jurisdiction of the court. I am satisfied that this court has the necessary jurisdiction to consider this application on the ground submitted that there has been a change of circumstances since the refusal by this court of the previous application for joinder by Barrick.

9. In regard to an application for joinder, I reproduce the following passage from my decision in Jimmy Varika v. Mendikwae Ltd (2016) N6228 at [6]:
"6. I recently considered the law concerning joinder of a party in James Marape v. Peter O’Neill and Ors (2015) SC1458. Notwithstanding that my decision constituted the minority, the majority agreed with my summation of the principles relevant to the exercise of discretion on the joinder of a party.
I reproduce that part of my decision in Marape v. O’Neill (supra):
“…. Order 5 Rule 8 (1) … (is as follows): 
“(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 ……..”
23. In the Supreme Court case of PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126, Kandakasi J. and Sawong J. said:
“…. we are of the view that the most important test (sic) for joinder of parties are:
(a) whether the applicant has sufficient interest in the proceedings; and
(b) whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.
8. In considering whether a proposed party has met the above tests, it is necessary and important to have regard to the cause of action pleaded. For it is the pleadings that disclose the matters in dispute and who are the correct plaintiffs and defendants. …”
24. I was a member of the Court in PNG Deep Sea Fishing (supra) and agreed with their Honours’ reasoning and conclusions concerning the appeal against the refusal to add parties. 
25. In Kara v. Public Curator of Papua New Guinea (2010) N4048, after referring to the tests that are listed a) and b) in PNG Deep Sea Fishing (supra), I stated that:
“25. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely adjudicated upon, certain factors warrant consideration.
26. These include whether:
a)	any relief is sought against the proposed party,
b)	the plaintiff opposes the application for joinder,
c)	the proposed party will be affected if the relief sought in the statement of claim is granted,
d)	the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.”

26. As to the second factor above, where the plaintiff, in this case the appellant, opposes the joinder, as I referred to in Coecon Ltd v. Westpac Bank  (PNG) Ltd (2012 ) N5097, this factor was recognised in Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 in which Wynn-Parry J. said:
“The general rule is, I think accurately stated…. in these words: “Generally in common law and chancery matters a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue.” ”
27. In Coecon v. Westpac (supra), although it was apparent that the plaintiff had a cause of action against the person sought to be joined as a defendant, the plaintiff had decided, for whatever reason, not to pursue him and only to pursue the defendant. The plaintiff opposed the application for joinder. I refused the application. Similarly in Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638, I refused an application for joinder that was opposed by the plaintiff.
28. In Coecon v. Westpac (supra), no relief was sought against the person sought to be joined and he would not have been affected if the relief sought by the plaintiff was granted. In Timbers PNG Ltd (supra), the plaintiff had been granted leave to judicially review a decision of the Minister for Forests. No relief was sought against the company seeking to be joined. The company could have been indirectly affected if the judicial review of the Minister’s decision was successful but not as a direct result of the relief sought by, or the actions of, the plaintiff. 
29. In Bobby Enda v. Kanawi Pouru (2013) N5314, although the plaintiffs opposed the joinder application and no relief was sought against the applicant seeking to be joined, it was apparent that if the relief sought was granted it would have directly affected the applicant’s rights to exercise its timber permit rights. Consequently, I was satisfied that the applicant had a sufficient interest and granted the joinder.”
10. In this instance, counsel for the plaintiffs' conceded that there has been a change of circumstances since this court's refusal of the previous application by Barrick for joinder. This in my view was a correct concession as it is clear that the plaintiffs' December notice of motion seeks to significantly amend the relief which the plaintiffs seek.

11.As mentioned, a factor to be considered in determining whether Barrick should be joined is that the plaintiffs oppose its joinder. In the normal course, a plaintiff is entitled to pursue his remedy against the defendants of his choosing: Dollfus Mieg v. Bank of England (supra), Coecon Ltd v. Westpac Bank (supra), Timbers PNG v. PNG Forest Authority (supra) and Enda v. Pouru (supra). A factor that may require the joinder of a party in opposition to a plaintiff’s wishes is if the party seeking to be joined will be directly affected if the relief sought in the proceeding is granted: Enda v. Pouru (supra). 

12. In this instance, although no relief is sought against Barrick, from the evidence, I am satisfied that it is the holder of 19 tenements including Exploration Licences EL454 and EL858 relating to the Porgera Mine, the subject of this proceeding and if the relief sought by the plaintiffs in their December notice of motion and their proposed amended originating summons are granted, it will directly affect the proprietary and economic interests of Barrick and the Porgera Joint Venture.

13. Consequently, I am satisfied that Barrick has a sufficient interest in the proceeding and has a right to be heard. To ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, I am of the view that it is necessary that Barrick be joined as a defendant to the proceeding. Given this it is not necessary to consider the other submissions of counsel.

Orders

14.  The Court orders that:

a)	Pursuant to Order 12 Rule 1 and Order 5 Rule 8(1) National Court Rules and 	the inherent jurisdiction of this Court, Barrick (Niugini) Limited is added as a defendant to this proceeding;

b)	The plaintiffs shall pay the costs of the defendants and Barrick (Niugini) 	Limited of and incidental to the notice of motion of Barrick (Niugini) Limited filed on 27th March 2019;

c)	The time of entry of these orders is abridged to the time of entry by the Registrar which shall take place forthwith.
__________________________________________________________________
Haiara's Legal Practice:  Lawyers for the Plaintiffs                                                 
Allens Lawyers:  Lawyers for the Defendants                                             
Ashurst Lawyers: Lawyers for Barrick (Niugini) Limited/ Applicant