N10841

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 94 OF 2022

BETWEEN:
LEMSON MABIRIA – Former Chairman and Nominee 
First Plaintiff

AND:
THOMAS WANDIAGO – Former Deputy Chairman & Nominee
Second Plaintiff

AND:
AMAYA PAIYA OLA; ERIC AKO HAWAI; ANDY MUYA; EGAWI TAGO; ALBERT JAKANEKO & AJARI LIWA – Former Board Members & Nominees
Third Plaintiff

AND:
HIDES LOCAL LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Fourth Plaintiff

AND:
NICKSON ALBERT HIWI; PHILIP IRUKA; PHILIP AKO; MATHIAS MBARI; ALBERT TUNDU; MARAKO PATE; MICHAEL PANI & ANGOPE LAPU – As newly elected Board Members 
First Defendant

AND:
DR ALPHONSE GELU – SECRETARY
Second Defendant

AND:
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS 
Third Defendant 

AND:
HON WESTLEY NUKUNDI NUKUNJ - MINISTER
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani:  Purdon-Sully J
2024:  4th & 13th June   

PRACTICE & PROCEDURE – JUDICIAL REVIEW - Application for leave to amend Originating Summons and Statement under Order 16 Rule 3(2)(a) of the National Court Rules before hearing of leave application – power of the Court to grant leave is discretionary –the criteria and the guiding principles on the question of leave to amend pleadings discussed – leave granted – multiplicity of pleadings raised – no abuse of process found.

Cases Cited:

Papua New Guinea Cases
Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Tovan v Malpo [2016] N6240 
New Guinea Co Ltd v Thomason [1975] PNGLR 454
Papua Club Inc v Nusuam Holdings Ltd [2002] N2273
Geosite Management Ltd v Kavo [2020] PGNC 223; N8439
SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170
Powi v. Southern Highlands Provincial Government (2006) SC844
Michael Kewa v Elias Mai Kombo (2004) N2688)
Barrick (Niugini) Ltd v Nekitel [2020] SC2007
Innovest Ltd v Pruaitch [2004] N5949
Waim No 85 Ltd v Independent State of Papua New Guinea [2015] SC1405
Morobe Provincial Government v Tropical Charters Ltd [2010] N3977 
Makeng v Timbers (PNG) Ltd [2008] N3317

Overseas Cases
Clarapede -v- Commercial Union Association (1883) 32 W.R 262
Cropper -v- Smith [1884] UKLawRpCh 91; [1883] 26 Ch.D 700

Legislation:
National Court Rules, Order 16
Constitution, s 155(4)

Counsel
J Simbala, for the Plaintiffs
P Harry, for the First Defendants

DECISION
13th June 2024
1.	PURDON-SULLY J: By Notice of Motion filed 28 March 2024, the plaintiffs seek leave pursuant to Order 16 Rule 13(6)(4)(f) of the National Court Rules (NCR) and s 155(4) of the Constitution to amend their Originating Summons and Statement under Order 16 Rule 3(2)(a) both filed 10 September 2022 in the forms marked as annexure ‘B’ and ‘C’ respectively to the affidavit of Joppo Simbala sworn 20 March 2024 and filed 28 March 2024.

2.	The plaintiffs’ application to amend is opposed by the first defendants on various grounds which will be later detailed and seeks that the entire proceedings be dismissed as an abuse of process.  

3.	The plaintiffs rely upon written submissions filed 24 April 2024 together with the following documents:

a.	Originating Summons filed 10 September 2022;
b.	Statement pursuant tio Order 16 rule 3(a) filed 10 September 2022;
c.	Notice of Motion filed 28 March 2024;
d.	Affidavit of Joppo Simbala sworn 20 March 2024 filed 28 March 2024
e.	Affidavit of Lemson Mabiria worn 3 February filed 3 February 2024
f.	and any documents that may be referenced in the affidavits relied upon.

4.	The first defendants rely upon written submissions dated 24 April 2024 together with the documents detailed at [3] of those submission as follows:

a.	Affidavit in response of Nickson Albert Hiwi filed 18 April 2024;
b.	Affidavit of Duplicity of Pleadings of Nickson Albert Hiwi filed 25 July 2023;
c.	Affidavit in Reply of Nickson Albert Hiwi filed 3 February 2023; and
d.	Affidavit in Support of Nickson Albert Hiwi filed 21 January 2023.

5.	In these reasons, in referring to the first defendants, I acknowledge that the 6th named first defendant Mr Albert Tundu is no longer represented by Mr Harry, Counsel for all the other named first defendants.  At the hearing of this application Mr Harry informed the court from the bar table that Mr Tundu had retained his own lawyers and now supports the plaintiffs’ position. I see from the file that an Appearance on his behalf was filed on 13 December 2023 by Kumura Lawyers.  They did not appear and participate in this hearing and there were no other appearances on behalf of the other defendants. 

6.	For the record, and if necessary, I give the first defendants leave to be heard on this application. The court raised this matter earlier however I note the orders made by the court on 4 April 2024 to the effect that the parties were to file a response and written submissions in response to the Notice of Motion to amend and the first defendants have complied with that order.  It is proper they be heard.

7.	The matter came before the court on 4 June 2024.  The complete court file was not available at the time of hearing, and it was necessary to reserve my decision to peruse documents relied upon by the parties.  

8.	Before I consider the arguments advanced on behalf of the parties it is necessary to briefly outline the background to this matter.  

CONTEXTUAL BACKGROUND

9.	The first, second and third plaintiffs were board members of the fourth plaintiff appointed for a term of three years in April 2018.

10.	On 17 May 2022, the fourth defendant appointed the first defendants as new board members (the decision). The plaintiffs contend that the decision was unlawful.

11.	Aggrieved by the decision, on 10 September 2022 the plaintiffs commenced proceedings seeking leave for judicial review.  They did so by way of Originating Summons supported by a Statement under the relevant Rules.

12.	On 26 October 2022 the plaintiffs filed an Amended Notice of Motion in which leave was sought to amend the application for leave to apply for judicial review and other interim orders. On the same day the plaintiffs filed an Amended Originating Summons and an Amended Statement.

13.	On 6 December 2022, the plaintiffs were granted leave for judicial review of the decision. 

14.	On 3 February 2023, the plaintiffs filed a Notice of Motion in which leave was sought to amend the Originating Summons.

15.	On 21 February 2023 the plaintiffs filed a Notice of Motion for substantive review.  

16.	On 14 April 2023 the plaintiffs filed a further Notice of Motion in which leave was sought to withdraw the Notice of Motion filed on 3 and 21 February 2023 including the Amended Notice of Motion, Amended Originating Summons and Amended Statement all filed 26 October 2022.

17.	Following a contested hearing on 20 April 2023, by order of this court on 11 May 2023, formally entered on 12 May 2023, the earlier order of 6 December 2023 granting leave for judicial review was discharged, the plaintiffs, however, given liberty to proceed with their application for judicial review. Further orders were made addressing the various opposing Notices of Motions before the court.  The background to the making of those orders is detailed in the judgment of Linge AJ published on 12 May 2023. 

18.	I set out the orders in full:

1.	I refuse to grant leave to the plaintiff pursuant to his Notice of Motion filed on the 14 April 20223 to withdraw and order dismissal of:

	(a)	the Notice of Motion dated and filed on 3 February 2023.
	(b)	the Notice of Motion filed pursuant on 24 February 2023.
	(c)	the Amended Notice of Motion, Amended Originating Summons, and the Amended Statement.
	(d)	the Summons for Production issued to Lemson Mabiria, Kenneth Unda, David Ikipe and the Bank of South Pacific dated 20th of January 2020.

2.	The Order of 6 December 2022 is hereby discharged.

3.	I refuse to restrain fourth plaintiff Account Number 100 1447296 held with the bank of South Pacific.

4.	The plaintiff is at liberty to proceed with their application for leave to apply for judicial review.

5.	Costs on an indemnity basis.

6.	Time is abridged to time of settlement of this order.

[Emphasis added]

19.	On 18 October 2023 the plaintiffs instructed their current lawyers with a Notice of Change to that effect filed on 25 October 2023.

SUBMISSIONS

20.	It is submitted on behalf of the plaintiffs inter alia that the plaintiffs have changed lawyers and the application for leave to amend filed 28 March 2024 is aimed to improve shortfalls in the pleadings and identify the real issues for determination by the court; that the first defendant is well aware of the case they are required to meet and are unlikely to suffer any prejudice and if any prejudice is occasioned by the application, which is denied, it can be fairly compensated by an order for costs.

21.	It is submitted on behalf of the first defendants inter alia that:

a.	the Notice of Motion is an abuse of process, being the second notion amongst others where the plaintiffs seek leave of the court to amend the Originating Summons and Statement filed 10 September 2022 and where:

i.	the plaintiffs have already filed an Amended Originating Summons and an Amended Statement on 10 October 2022, this amendment superseding and replacing the earlier Originating Summons and Statement filed on 6 September 2022 and as such, there is nothing to amend;

ii.	on 11 May 2023 the court dismissed the plaintiffs Amended Originating Summons and Amended Statement but did not reinstate the Originating Summons and Amended Statement filed on 6 September 2022 and as such the effect of that dismissal was that it brought the judicial review proceedings to an end and no judicial proceedings remained on foot; 

iii.	the plaintiff’s first motion filed 14 April 2023 to withdraw the Amended Originating Summons and the Amended Statement have been argued inter partes and dismissed by the court such that the plaintiff is precluded by the principles of issue estoppel and res judicata from being reintroduced.

b.	The plaintiff’s lawyer has deposed to the main affidavit supporting the motion and thus has placed himself in a conflicting situation as lawyer and witness where he was not present at the inter partes hearing on 14 April 2023 and his views are his opinions and submissions.

c.	The plaintiffs have sought similar reliefs to the current proceedings, those other proceedings instituted by them in OS 123 of 2023 on 28 April 2023 such that the plaintiffs are running parallel/duplicate proceedings which is an abuse of process and to that end have been dishonest without disclosing those proceedings to the court.

d.	The plaintiffs have engaged in an unlawful withdrawal from a bank account, the plaintiffs conceding that the order of 6 December 2022 they relied upon to withdraw the funds was discharged by the court such that the plaintiffs should not be permitted to take any further steps in the proceeding unless they return the funds as the plaintiffs should not be permitted to benefit from their own illegal conduct and the court should order that the funds be refunded.

e.	The plaintiffs have named the authority as the fourth plaintiff and themselves as former remembers of the authority when the current existing member of the authority are the first defendants. The proceeding is accordingly defective and should be dismissed as there is no evidence that the first defendants authorised the authority to file the proceedings against them, the first defendant creating confusion having convinced Mr Tundu to challenge the Minister’s decision such that Mr Tundu should according be removed as a party as he is not a credible witness.

THE ISSUES

22.	The issue for the court is whether the National Court has the power to amend pleadings in proceedings instituted under Order 16 of the NCR prior to the grant of leave for judicial review and, if so, whether leave should be granted to the plaintiffs to amend their Originating Summons and Statement in support filed 10 September 2022 or whether the application is an abuse of process for the various reasons advanced on behalf of the first defendants.

LEGAL PRINCIPLES

23.	Judicial review is a special process, Order 16 of NCR exclusively guiding the way judicial review proceedings are conducted.  As such, any issue as to its competence, summary dismissal or any other issues need to be taken in accordance with process and procedures found in Order 16.

24.	It has been held that in appropriate cases, prior to the grant of leave, interim orders may be made (see Innovest Ltd v Pruaitch [2004] N5949 (Innovest) at [22]).  That principle is in contrast to the principles enunciated in Makeng v Timbers (PNG) Ltd [2008] N3317 (Makeng), and other authorities.  Makeng however was a decision that concerned the grant of interim injunctive relief prior to the grant of leave to apply for judicial review. The issue before the court in that case arose not in the context of an application to amend pleadings prior to the grant of leave but an application for interim injunctive relief prior to the grant of leave to apply for judicial review in the context of Order 16 Rule 3(8) of the NCR which states that where the court grants leave to apply for judicial review, then the court goes on to consider granting an order for stay or other interim relief. It was held in Makeng that the court had no jurisdiction to grant interim relief before leave to apply for judicial review was granted.

25.	Order 16 Rule 13(6)(4)(f) relevantly states:

Order 16 Rule 13 (6)(4)(f)

13. Judicial Review (Amendment) Rules 2005  

	.....
      
6. Directions Hearing 
   
     (4) At the Directions Hearing, the Judge may consider and determine and issue directions or orders for the prompt hearing of the application, amongst other things, the following:
	....

            	f. Amendment of grounds of review.

26.	Order 16 Rule 3(4) states:

Order 16 Rule 3(4)

3.      Grant of leave to apply for judicial review.

		.....

(4)     Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

27.	Order 16 does not specifically provide for amendment of the pleadings prior to the hearing of a leave application. Order 16 Rule 3(4) appears to relate to amendment that can be made at the hearing of a leave application while Order 16 Rule 13(6)(4(f) appears to relate to amendments that can be made after the grant of leave (when read in conjunction with sub-rules (5) (Directions to be issued at the time of the granting of leave) and (6)(3) (A person who is served with the Notice of Motion is entitled to attend the Directions Hearing) of Rule 13.

28.	However, while Order 16 is silent as to when and how the application for leave to amend should be made, the legal principles applicable to the court’s discretion to allow amendment were considered in the recent decision of Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 (Dads Investment).  

29.	In Dads Investment, the Supreme Court (Kandakasi DCJ, Murray & Kangwia JJ) said at [13]-[15]:
13.	....an application for judicial review is subject to compliance of the requirements under Order 16 of the National Court Rules. Pursuant to O. 16 r. 3(4) and r. 6 (2), the Court has discretion to allow amendments to an O.16 statement that is filed in support of such an application. Relevantly the sub-rules are in the following terms: Rule 3(4)
“Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.”
Rule 6 (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.”
14.	As may be gleaned from these provisions, the power to grant leave for amendments at the leave stage is vested in the court hearing an application for leave for judicial review by O.16 r.3(4). After grant of leave and at the hearing of the substantive review, power is vested in the court hearing the substantive review application for leave to amend a statement under O.16 r. 3(2)(a). It should follow therefore that, a plaintiff in a judicial review proceeding has the right under the relevant provisions to apply for leave to amend his or her O.16 statement. However, it should be noted that all such amendments are restricted to and for the purpose of “specifying different or additional grounds for relief or otherwise”. Unfortunately, there is no prescription anywhere in O.16 as to when and how the application should be made and most importantly, the relevant criteria of any such amendments.
15.	Given that lacking, we note this Court in its decision in Barrick (Niugini) Ltd v. Nekitel (2020) SC2007, held the conventional criteria for amendment of pleadings in other National Court proceedings, as stated in Papua Club Inc v. Nusaum Holdings Ltd (2002) N2273, is applicable and upheld an appeal against a refusal of leave to amend the appellant’s O.16. r.3 (2) (a) statement. Accordingly, we are of the view that an applicant for leave to amend an O.16 statement must meet the conventional criteria for amendment but restricted to “specifying different or additional grounds for relief or otherwise” to achieve any of the objectives under the conventional criteria for amendments but within the context of the fact that it is a judicial review proceeding. We will pick up on this later and elaborate when dealing with the relevant grounds of the appeal.
	[Emphasis included]

30.	That the court accepted that the power to grant such leave prior to the grant of leave for judicial review existed, arises from its reasons at [40], where it said:

Given the settled law that, judicial review proceedings are exclusive and completely governed by Order 16, a court hearing an application for leave to amend need to remind itself of that fact. Having done so, the court also needs to consider at what stage of the proceedings an application to amend is An application for leave to amend prior to grant of leave should readily be granted if the purpose of the amendment per the conventional criteria are met being made. The same cannot be the case after the grant of leave for judicial review.  The Plaintiff in such a case is pursuing his proceedings based on the leave granted. It should follow therefore, any application for leave to amend after grant of leave for judicial review must be confined to the matters that were pleaded and that which formed the basis of the grant of leave. Venturing outside the confines of that, would be doing so without leave and therefore be highly irregular and unauthorised. For a decision to grant leave to proceeding with a judicial review application is not a decision authorising a plaintiff to introduce any additional facts and grounds as he pleases but to proceed to a hearing on his or her substantive review application based on what was placed before the court which the court had considered and decided to grant leave.

[Emphasis added]

31.	Having considered the relevant provisions and authorities to which I was directed, it is my respectful view that the National Court has the power to amend pleadings in proceedings instituted under Order 16 of the NCR at any time and at any stage of the proceedings.  This is clear from a consideration of Order 16 Rule 13(6)(4)(f) and Order 16 Rule 3(4) and the Supreme Court decision of Dads Investment.  

32.	It is further submitted on behalf of the plaintiffs that s 155(4) of the Constitution would also provide such a jurisdictional basis.  

33.	Section 155(4) of the Constitution provides:

155. THE NATIONAL JUDICIAL SYSTEM. 
….	
 (4) Both the Supreme Court and the National Court have 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.
….

34.	In Geosite Management Ltd v Kavo [2020] PGNC 223; N8439 Kandakasi DCJ observed at [25] that s 155(4) had been readily used by so many lawyers and parties almost as a matter of cause such that in most cases the provision “has been abused more than its proper application”. He went on to outline the principles applicable to its application by reference to the earlier authorities of SC Review No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170 and Powi v. Southern Highlands Provincial Government (2006) SC844. 

35.	In the former, Kapi DCJ (as he then was) said with the agreement of the other members of the court:

In summary, these cases establish that the first limb of s155 (4) gives the Supreme Court and the National Court power to make orders in the nature of prerogative writs and the second limb power to make other orders which are remedial, adjectival as well as procedural in nature.

In so far as power is given to make these orders in reviewing exercise of power by the courts, this supervisory jurisdiction is exercised over inferior courts. That is the nature of prerogative writs. It cannot be used by the same court to review a decision of the same level of court. If the constitutional framers intended this, they would have said so expressly.

36.	In the latter decision, the Supreme Court (Jalina, Gavara-Nanu & Kandakasi JJ) after a review of the authorities detailed the relevant principles applicable for the application of s 155(4) in the following terms at [25]:
From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:
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 the 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.

37.	Given that the matter was not fully argued before me and given the principles enunciated in Dads Investment to which I have had regard and the conclusion I have reached thereto, I express no concluded view on any assistance s 155(4) may provide in the matter before me.  There is persuasive authority either way that it may do so.  The learned judge in Makeng concluded that s 155(4) of the Constitution was not applicable to Order 16 Rule 3(8), that section conferring no primary jurisdiction on the court to grant a stay or other interim relief before leave to apply for judicial review was granted, rather it being a facilitative power in aid of enforcement of a primary right.

38.	Some preliminary observations, however, can be made.  On the assumption that the orders sought in the present case by the plaintiffs for leave to amend are to be regarded as interim or interlocutory orders in the sense of “….not final; that which intervenes between the beginning and end of the lawsuit or proceeding to …. decide a particular point of matter that is not the final issue of the entire controversy…. (Tovan  v Malpo [2016] N6240 at [13]) – and no submissions were made to the contrary before me – the principles governing applications for leave to amend a pleading and injunctive relief (the latter the interim relief sought in Makeng) are different in nature and as such that fact may be relevant to a consideration of when such applications can be made relevant to an application for leave to apply for judicial review.
  
39.	Further, in my respectful view, the principle enunciated in Makeng would be subject to the inherent powers of the court to do justice.  The divergence on principle that appears on the authorities with respect to the availability of interim relief prior to the granting of leave to apply for judicial review may be qualified in the manner enunciated in Innovest at [22], where Gavara-Nanu J said:

… the purpose of the Rules is to guide the Court in conducting trials in a fair and just manner in order to dispense justice to the parties. The Rules in that regard are not an end in themselves but a means to an end. Therefore if dispensing with the requirements of Order 16 Rule 3(8) is in the interests of justice, then that should, in my opinion be a proper basis for the Court to exercise its power of dispensation under Order 1 r 7 of the NCR…

40.	Finally, in the present case, it is open to argument that the primary right to be protected is that of the application for leave in a judicial review proceeding and the need to protect that primary right by appropriate amendment and that the court’s discretionary power conferred by s 155 (4) of the Constitution, a constitutional mandate, enables the court to tailor its remedies and grant the interim relief sought by the plaintiffs prior to the grant of leave for judicial review in order to prevent irreparable damage or prejudice to that right. 

41.	For the reasons given earlier it is not necessary to reach a concluded view on the applicability of s 155(4) to the matter before me. 

42.	The grant of leave to amend is a matter of discretion for the court.  In the exercise of that discretion the conventional criteria that govern amendments to pleadings in ordinary civil proceedings are to be adopted in proceedings for judicial review (Dads Investment at [14] – [15], [41]).  

43.	Relevantly those principles include:

a.	whether the amendment will enable the Court to determine the real questions in controversy between the parties or correct any defect or error in the proceedings,

b.	whether the proposed amendments will not result in injustice and prejudice to the other party,

c.	whether the application is not made mala fide and that the other party can be compensated with costs for such amendments (see New Guinea Co Ltd v Thomason [1975] PNGLR 454; Papua Club Inc v Nusuam Holdings Ltd [2002] N2273; Michael Kewa v Elias Mai Kombo (2004) N2688); Barrick (Niugini) Ltd v Nekitel [2020] SC2007).

d.	where do the interests of justice lie.

44.	There is no authority that states that all the principles in the conventional criteria are to be satisfied to secure an amendment (Dads Investment Corporation Limited v Samson (supra) at [39]).

CONSIDERATION

45.	Applying the above principles to the matter before me, I am satisfied that in my discretion I should grant the plaintiffs leave to amend their pleadings as sought.  

46.	I am satisfied that I have the power to grant leave and that the interests of justice require that leave be granted.  Where there is a defect or irregularity in the pleadings, if such defect or omission does not result in prejudice to the opposing party then it should be remedied by amendment (Innovest Ltd v Pruaitch [2004] N5949). 

47.	I am satisfied that the grant of leave to amend will:

a.	enable the court to determine the real question in controversy between the parties, the amendments amounting to no more than a fresh approach to the same facts based on the same cause of action as opposed to one that seeks to change the action into one of a substantially different character (Morobe Provincial Government v Tropical Charters Ltd [2010] N3977), and

b.	not cause a real prejudice or injustice to the other parties, the amendments seeking to simplify the issues to assist both parties to prepare their respective cases and thus better assist the court to address the issues before it and the other parties could be fairly compensated with costs if the court viewed the justice of the matter requiring such compensation to be paid (Clarapede -v- Commercial Union Association (1883) 32 W.R 262 per Brett M.R. at page 263).

48.	While the proceedings before the court have had a somewhat torturous past, the conduct of the plaintiffs does not suggest mala fide, there being no evidence to suggest that the difficulties and delay in advancing the matter prima facie can be laid at the feet of the plaintiffs who retained new lawyers at the end of last year, those lawyers seeking to place the matter on a better legal footing. 

49.	The plaintiffs should not lightly be denied an opportunity to advance their case under new legal representation.  In Cropper -v- Smith [1884] UKLawRpCh 91; [1883] 26 Ch.D 700 at pages 710-711, Lord Bowen said: 

It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.....I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ......It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.
50.	The interests of justice are served by affording the plaintiffs an opportunity to bring their application for leave for judicial review before the court in a manner that they view will best advance their interests. It will then be for the court to determine if the criteria for leave has been met.  If leave is granted the first defendants will have an opportunity to test the merits of the substantive application for review, including by raising issues that go to the merits of that application and any issues of competency.

51.	The court accepts the submission on behalf of the plaintiffs that the Originating Summons filed on 10 September 2022 unnecessarily pleaded various reliefs, both interlocutory and substantive, when the only relief that ought to have been pleaded was leave to apply for judicial review (Makeng v Timbers (PNG) Ltd [2008] N3317 at [37]; Innovest Ltd v Pruaitch [2004] N5949 at [5]-[6]).  

52.	The proposed amendment seeks to correct the content of the Originating Summons to ensure that the only relief sought should be an order for leave to apply for Judicial Review.  It is appropriate to do so.

53.	With regards to the Statement filed under Order 16 Rule 3(2)(a), as the Supreme court said in Makeng (supra) at [38], it should plead amongst other matters the following:

a.	a concise description of the decision made or required to be made the subject of the review including particulars of the decision-maker, the statutory provision under which the decision was made or required to be made but failed to make and the date of the decision;

b.	a succinct summary of the relevant factual circumstances;

c.	an accurate description of the relief sought; and

d.	the precise grounds on which the relief is sought.

54.	The court accepts the submission on behalf of the plaintiffs that the proposed changes to the Statement will correct and readjust the pleadings so that they are coherently relevant to the decision to be reviewed. It does not introduce new matters that are not already within the knowledge of the parties.  It presents important factual and legal issues that require consideration including, but not limited to, whether or not the first defendants were lawfully appointed by the Minister and whether or not the plaintiffs are entitled to the reliefs sought. The court accepts that these are not trivial issues but ones that go to the validity of the plaintiffs’ cause of action.

55.	Turning to the submissions on behalf of the first defendants, they can be briefly dealt with as follows.

56.	With respect to the first point submitted that the Notice of Motion is res judicata or issue estopped meaning the motion had previously been decided on its merits between the parties and amounts to an abuse (Waim No 85 Ltd v Independent State of Papua New Guinea [2015] SC1405) and the effect of the order of 12 May 2023 was to dismiss the plaintiffs Amended Originating Summons and Amended Statement filed 10 October 2022 bringing the entire judicial proceedings to an end such that the present application to amend has nothing to stand on, this submission is rejected.  It was the order for leave granted on 6 December 2022 that was discharged by the order of 11 May 2023. That order did not dismiss the Originating Summons underpinning it, filed on 6 September 2022.  Order 4 of the order of 11 May 2023 made clear that the plaintiff was at liberty to proceed with their application for leave to apply for judicial review, that is the extant application for leave.

57.	Further, once the order for leave for judicial review had been discharged by Order 2 of the Orders of 11 May 2023 (formally entered on 12 May 2023), the Notice of Motion for substantive relief filed 21 February 2023 was rendered nugatory.  It did not have an independent existence of its own separate from the grant of leave of 6 December 2022 which had given it life. On discharge of the order for leave for judicial review the Notice of Motion for substantive relief no longer had efficacy. To use a medical analogy, its life support had been turned off and it died a natural death as a consequence.  

58.	With respect to the second issue raised by the first defendants, namely the lawyer as a witness argument, the plaintiff’s lawyer having deposed to the main affidavit in support of the application for leave to amend, this argument has no merit. The court views nothing inappropriate in a lawyer who has taken over the carriage of the matter on an application for leave to amend providing information for the assistance of the court within his own professional knowledge as opposed to a plaintiff deposing to the same matters by way of an affidavit of information and belief.  Given the history of court proceedings it was appropriate for Mr Simbala to inform the court of the date when he received instructions and when he thereafter filed his Notice of Change of Lawyers acting on those instructions.  These are matters that are not in contest. They are however matters relevant to the court’s exercise of its discretion in light of the court history.  Nor can it reasonably be challenged that the Originating Summons that is sought to be amended is not convoluted. Indeed, a cursory perusal of the document might suggest it to be a statement of fact by a legally trained person as opposed to an expression of opinion.  That aside, while other matters deposed to by Mr Simbala amount to submissions, it is a defect that does not give rise to a finding of abuse such that the entire proceedings should be dismissed on that basis.

59.	With respect to the third issue, it was further submitted on behalf of the first defendants that the application before the court is an abuse by reason of there being a multiplicity of proceedings on foot, the plaintiffs seeking similar orders in OS 123 of 2023, that submission is rejected.  While the relief sought in proceedings OS 123 of 2023 and the drafting of the Originating Summons in OS 123 of 2023 suggests, kindly put, the need for attention, if not review by the plaintiffs’ current lawyers who did not prepare the document, and while the two sets of proceedings may arise out of a kindred factual relationship, not all the parties are the same and they are different proceedings.  Judicial review is not a cause of action.  It is a special procedural process where the role of the court is a supervisory one.  The plaintiffs in proceedings OS 123 of 2023, are not seeking judicial review of a decision by way of certiorari and mandamus relief against a public authority or public officer.  They appear to be pursuing some form of declaratory relief based inter alia on the tort of negligence against a number of defendants, one of whom is the Bank of South Pacific, who is not a party to these proceedings for judicial review, It is a cause of action purportedly based on an asserted injury or harm to them amounting to a civil wrong for which they seek a remedy.  Those proceedings do not prima facie present as a circumstance of split action where the plaintiffs institute judicial review for prerogative writs under Order 16 whilst concurrently seeking declaratory or injunctive relief pursuant to Order 4 of NCR which may amount to an abuse of process.  On the evidence the court is unable to conclude that the existence of those proceedings suggests that the plaintiffs should be the deprived of the opportunity to advance their case for leave for judicial review in this judicial track and do so on a proper basis which is the purpose of the motion to amend, on their case.

60.	With respect to the fourth argument advanced by the first defendants, namely that the plaintiffs should not be permitted to benefit from an illegal act, this argument has no merit. The application before the court is leave to amend pleadings.  The legal principles relevant to that process do not permit the making of the factual findings sought and, further, the legal basis for the court on such an application to then order the return of funds purportedly illegally removed from a bank account, is unclear.

61.	With respect to the fifth argument advanced on behalf of the first defendants based on improper and conflicting parties, this submission is rejected.  Again, this is an application for leave to amend pleadings. If, and when, the plaintiffs are granted leave - a preliminary consideration for leave being the legal capacity to commence judicial review proceedings with the State having a right to be heard at that stage of the proceedings on the requirements for leave - the plaintiffs have the right on any substantive review to raise issues to do with representation.  

62.	As regards Mr Tundu, the legal basis for the court removing him as a party at this stage of the proceedings “as he is not a credible or reliable witness”, on the submission of the first defendants, is entirely unclear.  There is no application for his removal before the court.  He did not participate in the hearing on 4 June 2024 and to make any order with respect to him in those circumstances would offend his right to be heard and the principles of natural justice. If there is sworn evidence from Mr Tundu that exposes either an asserted conflicting position or one that would form the basis for an adverse finding on credibility (even if such a finding was procedurally open to the court at this stage of the proceedings which it is not), it was not relied upon at the hearing.  It would be wrong for the court to make assumptions about Mr Tundu’s separate representation and what that may mean for these proceedings given that his legal representatives were not present at the hearing of this application on 4 June 2024.  Finally, the fact that it is asserted that Mr Tundu now holds a conflicting position to that of the other defendants, whether by reason of an asserted relationship to the first plaintiff or otherwise, is mere assertion.  It is not evidence.  Even if supported by admissible evidence, the mere holding of a position that conflicts with that held by the other first defendants does not prima facie impugn Mr Tundu’s credit such as to suggest the court can, and should, based on proper legal principle (not identified), remove him as a party.

CONCLUSION AND ORDERS

63.	In the result the court grants the plaintiffs leave to amend. 

64.	Each party should bear their own costs. The plaintiffs have been successful on their application, the first defendants not.  While the application for leave to amend was not occasioned by reason of fault on the part of the first defendants, the amendments sought did not give rise to any prejudice to them.  The first defendants could have supported the granting of leave rather than oppose it.  They could have informed the court of this at the earliest which would have saved the parties’ costs and the court time, the court required to then deal with the Gordian knot of issues raised.  While the court history of this matter does not reflect well on the plaintiffs, it is difficult for the first defendants to complain of the length of time this matter has been in the court system when the court has a reasonable expectation that all parties, particularly those who have the benefit of legal representation, make reasonable concessions when and where appropriate. 

65.	In the result the Orders will be:

a.	That the plaintiffs be granted leave to amend their Originating Summons and Statement under Order 16 Rule 3(2)(a) filed 10 September 2022 in the forms marked as annexure ‘B’ and ‘C’ respectively to the affidavit of Joppo Simbala sworn 20 March 2024 and filed 28 March 2024.

b.	Each party bear their own costs.

c.	Time to abridge
________________________________________________________________
Vijay & Co Lawyers: Lawyers for the Plaintiffs
Harry Lawyers: Lawyers for the First Defendants except Mr Tundu