N9721

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 130 OF 2021

BETWEEN:
PATRICK DABUGO- Chairman, Timalia Gangulu Block, Cr Togo Agibe Payabe, Olape Marago, Chairman, Tawenda Tokaju Block, Max Mapira, Chairman Middle Block, Andy Hamaga, Chairman Geterenda Block, Lucas Urubu, Chairman, Tuguba Block, Chris Payabe, Chairman Parepare Block
Plaintiffs

AND:
HON. PILA NININGI as MINISTER FOR INTER GOVERNMENT RELATIONS
First Defendant

AND:
STEVEN IPULE as CHAIRMAN ELECT FOR PDL7 LLG SPECCIAL PURPOSE AUTHORITY
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Tamade, AJ
2022: 7th June

JUDICIAL REVIEW – Leave for – Principles and considerations – kinds of orders and reliefs to be granted at time of granting leaving – competency of originating summons – plaintiffs plead substantive relief along with leave for judicial review – Improper to plead substantive reliefs at leave stage.

NATIONAL COURT RULES – Judicial review – originating summons seeks only one relief which is leave for judicial review – once leave is granted – file a Notice of Motion under Order 16 Rule 5 seeking orders for judicial review.
PRACTICE & PROCUDEURE – Inappropriate and improper to seek substantive relief together with leave for judicial review in originating summons – Appropriate to grant other reliefs in appropriate cases on proper prove after grant of leave with any consequential reliefs only after grant of substantive relief of judicial review.

JUDICIAL REVIEW – Leave for – Principles and considerations – locus standi – suing in representative capacity – need to satisfy requirements for representative claims – consent of all other people plaintiff represents must be annexed to originating process – all intending plaintiffs must each give specific instruction to their lawyer.  

Cases Cited:

The following cases are cited in the judgment:

Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366
Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 

Counsel	

Mr Michael Kambao, for the Plaintiffs
Ms Bathsheba Kulumbu, for the State

7th June, 2022

1.	TAMADE, AJ:  This is an application seeking leave for judicial review.

2.	The Plaintiffs have filed these proceedings on 1 September 2021 and have today, 7 June 2022 moved the Court for leave for judicial review.

3.	The Plaintiffs state that they are block leaders of Hides PDL 7 within the PNG LNG Project in Hela Province which consist of 63 major clans.

4.	The Plaintiffs claim that the National Government through the Minister for Inter-Government Relations proclaimed the establishment of a Hides PDL 7 Local Level Government Special Purpose Authority under the Local Level Government Act on 29 November 2016. 

5.	The Plaintiff’s however claim that by way of a Gazettal Notice described as G404 of 2021, Notice pertaining to a Hides PDL 7 Special Purpose Authority was published dated 22 June 2021. The Plaintiffs claim that there is no such entity as a “Hides PDL 7 Special Purpose Authority” as the name is missing the words “Local Level Government” and that the gazettal publication publishes the names of the executives of the Special Purpose Authority. The Plaintiff takes issue with the appointment of the Second Defendant as Chairman-elect for the Special Purpose Authority and says the Second Defendant does not represent the Plaintiffs and that there should be a re-election of the executives of the Hides PDL 7 Local Level Government Special Purpose Authority which is the correct entity and not the Hides Special Purpose Authority which is a non-existent entity.

6.	The Plaintiff has sought to move the application of leave by way of a Notice of Motion filed on 15 September 2021.

7.	The Plaintiff argues that pursuant to sections 5 and 7 of the Constitution of the Hides PDL 7 Special Purpose Authority, the Minister was required to notify the nominating bodies which include the persons representing the landowner groups as identified in section 5 of the Constitution with the oversight of the responsible Department which nominations shall be submitted to the Komo Local Level Government Assembly who shall then make up the Board for the Special Purpose Authority. The Plaintiffs, therefore, claim that this process was never adhered to by the Minister concerned.

8.	The Plaintiffs are therefore required in an application for judicial review to meet the following grounds for a grant of leave:

a)	Documentation (Order 16 Rule 3(2)) – Originating Summons, Statement, Affidavits
b)	Affidavit Showing service on the Secretary for Justice (Order 16 Rule 3(3))
c)	Standing- Applicants have to show sufficient interest/locus standi (Order 16 Rule 3(5))
d)	Delay- whether there has been undue delay (Order 16 Rule 4)
e)	Arguable Case- does the Applicant have an arguable or prima facie case and 
f)	Alternative remedies- has the Applicant exhausted all alternative remedies.

Documentation - Competency of the Originating Summons

9.	The State has argued challenging the competency of the Originating Summons that the Plaintiffs should have only sought leave of Court in the Originating Summons however the Plaintiffs have also pleaded in addition to leave, all other substantive relief it will seek in the substantive hearing of the judicial review.

10.	The Plaintiffs in rebuttal state that they have moved the application for leave by way of a Notice of Motion which they say is sufficient and that they have also filed an Undertaking as to Damages to submit to the Court’s jurisdiction. The wording of the Undertaking as to Damages is that which is usually given when a party is seeking an injunction though Mr. Kambao of the Plaintiff submits that this also shows to the Court that the Plaintiff will submit to any order of the Court as to proper process and that to my mind, any defect in the proceedings can be cured by the Plaintiff attending to those.

11.	The State has relied on the case of Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366 (10 July 2014) to support the proposition that a Plaintiff cannot seek a substantive relief in a judicial review matter together with leave in an originating summons. The Supreme Court, therefore, said this:

26. We are respectfully of the view that, His Honour's interpretation and understanding of the provisions of O.16, r.3 (8) and O.16, r.5(2), in terms of the above is correct. Accordingly, we adopt them as our own and add for clarity sake that, O.16, r.5(1) and (2) provides as to the steps to take once leave has be grant. Hence how the whole process of judicial review should work out is as follows:

(1)	An Originating Summons is filed seeking only one relief, namely leave for judicial review together with a Statement as described by O.16, r. 3(2)(a) and an affidavit verifying the facts relied by the applicant.

(2)	(2) Copies of the documents under (1) above should then be served on Secretary for Justice, not less than 2 days before the date set for its hearing (O.16, r.3).

(3)	(3) If leave for judicial review is granted, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5).

(5) If any urgent or interim relief is also sought this should be included in the notice of motion and may be argued earlier if need be or otherwise in accordance with motions rules prior to a hearing and determination of the substantive review.

(6) After attending to any pressing urgent or interim matter, the substantive review application should proceed to a hearing without delay, a date for which, should be fixed within 21 days from the grant of leave.

12.	I adopt the reasoning by the Supreme Court as the law in this case, the Plaintiff should have proceeded only seeking leave in the Originating Summons and then once leave is granted, file a Notice of Motion under Order 16 Rule 5 seeking orders for judicial review. The procedure for judicial review is specific under Order 16 and the Plaintiff has proceeded as in an ordinary Originating Summons which they have done so to their own detriment.

Undue Delay

13.	The State has taken issue with the delay in this matter stating that the decision the subject of judicial review is the Gazettal Publication on 22 June 2021 and these proceedings were filed on 1 September 2021. The State has submitted that the Plaintiffs have sat on the leave application only to move the leave application today which is almost a year from the date of the Gazettal publication. 

14.	The Plaintiff’s state that issue as to delay has been addressed by the Court in that this matter was listed for summary determination and the Plaintiffs have successfully argued for the matter to be removed from the Summary Determination List. On the last return date of the matter, the Court removed the matter from being Summarily Determined and allocated today as the hearing date for the leave application to be heard.

15.	In regard to delay under Order 16 Rule 4 of the National Court Rules, the Court only has to be satisfied on a reasonable explanation of why the Plaintiff has not come to Court within a reasonable time as to not affect the good administration of justice and under Order 16 Rule 4 (2), where an order for certiorari is sought, an applicant has to seek leave within four months from the date of the decision sought to be reviewed.

16.	I am satisfied that there is a reasonable explanation by the Plaintiff of why the application seeking leave was not heard earlier as the issue of delay was determined when the matter was listed for summary determination and therefore that takes care of the delay issue.

Standing/Locus Standi

17.	The State has strongly submitted that the Plaintiffs do not have standing to issue these proceedings as they are suing in a representative capacity in a class action as pleading that they are Block leaders representing some over 5000 plus people as in the case of Mr Patrick Dabugo and therefore the Plaintiffs need to have consent of the people they represent to be annexed to the Originating process to meet the requirement for representative claims as in the case of Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 (3 April 2002). 

18.	The Plaintiffs on the other hand maintain that they have deposed to Affidavits to say that they are the so-called appointed leaders representing the various landowner groups and therefore they have authority.

19.	The Supreme Court said this in the Simon Mali case in relation to representative claims:

“We accept the State’s submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests).”

20.	I find that the Plaintiff have fallen short of this requirement as to acting in a representative capacity and therefore these proceedings are incompetent.

21.	As to the other requirements of whether there are alternative remedies or avenues available to the Plaintiff and whether the Plaintiff has an arguable case, I am of the view that the competency of the Originating Summons and whether the Plaintiffs have standing to act in a representative capacity is fatal to the Plaintiffs in passing the bar to be heard on an enquiry into the merits of the claim at the leave stage.

22.	I therefore find that the proceedings are therefore incompetent and should be dismissed. 

23.	The Court, therefore, orders that:

i)	These proceedings are dismissed in its entirety.

ii)	The Plaintiff’s shall meet the costs of the State to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Strategic Legal Services:  Lawyers for the Plaintiffs
Office of the Solicitor General:  Lawyers for the State