SC1674
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO: 27 OF 2018

BETWEEN
PHILIP MIRIORI as Chairman of the Special Mining
Lease Osikaiyang Landowners Association Inc.
First Applicant

AND
SPECIAL MINING LEASE OSIKAIYANG
LANDOWNERS ASSOCIATION INC.
Second Applicant

LAWRENCE DAVEONA as the Former Chairman of the
Special Mining Lease Osikaiyang Landowners Association Inc.
First Respondent

AND
DENNIS NASIA as the Former Public Officer of the
Special Mining Lease Osikaiyang Landowners Association Inc.
Second Respondent

Waigani:  Dingake J
2018   :   16th March

SUPREME COURT – Requirements for Joinder – Applicant must prove sufficient interest in the proceedings and that joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

Cases cited:
Papua New Guinea Cases

PNG Deep Sea Fishing Ltd v Critten (2010) SC 1126;
Kara v Public Curator of Papua New Guinea (2010) N4048;

Overseas Cases

Dollfus Mieget Compagnice S.A. v Bank of England 1951 1 Ch. 33.

Counsel:

Phillip Miriori in person
No appearance, for Respondents.
Mr. Buri Ovia, for Joinder/Applicant

16th March, 2018

1.	DINGAKE J:	 This is an application for joinder by the applicants’ who seek to be joined as respondents to this appeal, arising out of the National Court Proceedings in OS No. 452 of 2017 (CC2) – Philip Miriori as Chairman of Special Mining Lease Osikaiyang Landowners Inc. & Another v Lawrence Daveona as former Chairman and Dennis Nasia as the former Public Officer of the Special Mining Lease Osikaiyang Landowners Inc. & Another.

2.	Their application, filed on the 10th April, 2018, is brought in terms of Order 11 Rule 11 of the Supreme Court Rules 2012.

3.	The applicants are:

(i)	Joseph Nausi Damana
(ii)	Anthony Tapakau Tori
(iii)	Steven Tampura Imora
(iv)	Lucy Mangoma Bakamari

4.	The application is supported by the supporting affidavits of all the applicants mentioned above.

5.	In order to appreciate the issues canvassed in this application, it is important to outline brief background facts.

6.	On or about the 8th of May, 2017, the appellants, Philip Miriori (first plaintiff) as Chairman of the second plaintiff and Special Mining Lease Osikaiyang Landowners Inc. (second plaintiff) brought proceedings OS No. 452 of 2017 (CC2) against, Lawrence Daveona, former Chairman of the second plaintiff (first defendant) and Dennis Nasia as former Public Officer (second defendant).

7.	In the above matter the appellants sought final orders restraining the first and second defendants, not to hold an Annual General Meeting or to purport to hold an Annual General Meeting of the second plaintiff on the 10th of May, 2017, and that the first plaintiff is at liberty to proceed with the Annual General Meeting of the second plaintiff on the 15th of May, 2017, in accordance with his notice dated the 20th April, 2017 for the AGM of the second plaintiff to be held on the 15th of May, 2017.

8.	The National Court, per Kandakasi J, ordered the matter to go for mediation.

9.	Several mediation sessions were held, but no successful conclusion was reached because of a number of reasons, including the fact that first appellant withdrew from the mediation, complaining that the mediation was not being conducted fairly. 

10.	It would seem that on the 12th December, 2017, the parties to the National Court Proceedings signed a Deed of Settlement with respect to the proceedings, thereby resolving the issue of who was legally appointed the leader of the second applicant and drafted Consent Orders for endorsement by the National Court.

11.	The Court, per Kandakasi J, declined to endorse the Consent Orders on the basis that the mediation was not over.

12.	It must be borne in mind that at all material times hereto, Kandakasi J, was the Mediator and the primary Judge in the National Court seized of the matter.

13.	On the 13th of November, 2017, the appellants filed a notice of discontinuance, discontinuing the National Court Proceedings.

14.	On the 19th of December, 2017, the National Court made directions for the parties to return to mediation on the 29th of January, 2018.

15.	The parties were not agreed on whether mediation could continue having regard to the Deed of Settlement and the notice of discontinuance.

16.	In consequence of the disagreement, the National Court, on the 5th of February, 2018, framed four (4) questions which were to be brought before another Judge.

17.	The questions framed by the Court related to the effect of the appellants’ withdrawal, discontinuance and alleged resolution of the dispute on the court ordered mediation.

18.	The Court also directed that all joinder applications filed by interested parties should also be determined.

19.	The questions referred to above, including the joinder application, were to be heard by Shepherd J, before the matters return to the primary judge herein (Kandakasi J). This matter was handed over to me on account of the unavailability of Shepherd J.

20.	This ruling relates to the joinder application only.

21.	The full order issued on the 5th of February, 2018, which the appellants have sought and obtained leave to appeal to the Supreme Court is in the following terms:

(1)	The continuation of the mediation is adjourned pending a determination of the four questions referred in term 2 of these Orders.
(2)	The questions for Judicial determination are:
(a)	Can the first plaintiff unilaterally file a Notice of Discontinuance of the proceeding when the Court ordered mediation process has not been formally concluded by the parties attending the mediation and the mediators?
(b)	Without the membership of the second plaintiff and all persons participating as parties expressed approval, consent or agreement, can the first plaintiff and the first defendant by their proposed agreement bind the members of the second plaintiff Association, second defendant and the other parties participating in the Court ordered mediation and in so doing, can the first plaintiff and second defendant make decisions that concern and affect the membership of the second plaintiff Association and the other participating parties who have raised a number of issues in the mediation process that remain to be resolved?
(c)	Can the mediation process continue with or without the participation of the first plaintiff who walked out of the mediation process following which the membership of the second plaintiff Association by an overwhelming majority resolved for the mediation process to continue and properly conclude?
(d)	Can the first plaintiff, first defendant and the second defendant terminate the Court ordered mediation process without the Court appointed mediator’s consent or approval and without the meaningful involvement and agreement of the members of the second plaintiff Association and all other persons participating as parties in the mediation and the mediators not issuing their certificate under Rule 9(5) of the ADR Rules.
(3)	The questions set out in term 2 of these orders are now referred for hearing and determination by His Honour Shepherd J on a date convenient to him.
(4)	All the Notices of Motion filed on 22 January 2018, for joinder through the firm of Geroro Lawyers, document numbers 86, 84, 80, 78, 76 and 74 are also adjourned for hearing by His Honour Shepherd J, which shall be first dealt with before hearing and determining the questions referred to him under term 2 of these orders.
(5)	After the Motions and the questions referred to His Honour are dealt with, the matter will return to this Court for allocation for a date for further mediation or as the case might be.
(6)	The time for entry of these orders is abridged to take forthwith upon the Court signing them.

22.	In their notice of appeal the appellants seek the following relief:

(i)	The appeal be allowed;

(ii)	The Orders of 5th February, 2018 be quashed;

(iii)	The National Court Proceedings be listed before another judge of the National Court to address the issue of leave before the National Court Proceedings are discontinued forthwith.

(iv)	The National Court proceedings be transferred to another Judge.

23.	The issue that falls for determination is a narrow one. It is whether the applicants have met the requisite test to be joined on appeal.

24.	The test whether a party should be joined on appeal are:

(i)	Whether the applicant has sufficient interest in the proceedings; and
(ii)	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.

25.	In deciding whether the above test has been met it is imperative for the court to have regard to the cause of action pleaded (PNG Deep Sea Fishing Ltd v Critten (2010) SC 1126).

26.	Furthermore, in considering whether the above test has been met, certain factors warrant consideration. These include whether:

(i)	Any relief is being sought against the interested party who seeks to be joined as a party;
(ii)	Whether the plaintiff opposes the application;
(iii)	Whether the interested party who seeks to be joined as a party will be affected if the relief sought in the statement of claim is granted;
(iv)	The joinder of the interested party who seeks to be joined as a party is necessary to satisfy orders made in the proceedings (Kara v Public Curator of Papua New Guinea (2010) N4048)

27.	The evidence of the four (4) applicants in support of the joinder application is similar, if not identical, and may be summarized briefly.

28.	All the applicants claim to have interest in the land within the Special Mining Lease and that they are members of the Special Mining Lease Osikaiyang Landowners Association Inc.

29.	The applicants also aver that they don’t recognise the agreement between the parties in OS No. 452 in relation to the position of Chairman of the Special Mining Lease and that they object to a decision by the current parties taken without consultation. They also pronounce themselves to be in favour of the continued mediation.

30.	Applying the principles set out in the PNG Deep Sea Fishing Ltd and Kara cases cited earlier, I am of the considered view that although the applicants may have some interest as members of the second plaintiff, they have not demonstrated sufficient interest in the appeal more particularly if regard is had to the fact that they were not parties to the National Court proceedings that led to the appeal now mounted by the appellants.

31.	Furthermore, the applicants have not alleged and proved by evidence that their joinder is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

32.	More significantly, the appellants seek no relief, against the four (4) applicants. Consequently, the applicants will not be affected if the relief sought in the statement of claim is granted.

33.	The applicants do not allege and prove that the joinder is necessary to satisfy any orders that may be made on appeal.

34.	I have also taken into consideration that the plaintiffs oppose this application for joinder; and that the applicants’ joinder is not necessary to satisfy orders made in the proceedings.

35.	In addition to the above considerations, I agree with the views of Wynn Parvy J, in the case of Dollfus Mieget Compagnice S.A. v Bank of England 1951 1 Ch. 33, to the effect that, generally, a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone and cannot be compelled to proceed against other persons who he has no desire to pursue.

36.	In the result:

(i)	The four (4) applicants’ application for joinder is without merit and it is refused. 	       	 

The Applicant in person  
No Appearance for the Respondents