N3061

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 259 OF 2006

KEN NORAE MONDIAI
First Plaintiff

AND

PNG ECO FORESTRY FORUM INC.
Second Plaintiff

WAWOI GUAVI TIMBER COMPANY LIMITED
First Defendant

PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

Waigani: Lay J.
2006: 19 May, 4 July

PRACTICE AND PROCEDURE ─ National Court Rules O.5 r.8─application to join as a plaintiff ─ considerations ─ whether applicant has legal right to enforce ─ whether applicant could have a cause of action ─ whether applicant has "sufficient interest".

Facts:

The Applicant Ombudsman Commission of Papua New Guinea applied to be joined as a party to these judicial review proceedings. The Commission had prepared a report into matters raised by the substantive proceedings and had made recommendations. There was an allegation that the recommendations of the report had not been followed by the Second Defendant.

Held:

The Applicant was created by the Constitution and Organic Law. Its’ powers must be found in those constitutional provisions. Its’ powers were to investigate, report and recommend. The Court could not extend those powers. It was a matter for the Parliament. There is no legislative authority for the Ombudsman to join in the action as a party with sufficient interest. The Ombudsman Commission’s power of enforcing the recommendations contained in its’ reports is confined by Constitution s.219(6) to advertising, and recommendations to the Parliament and the relevant authorities. The Ombudsman Commission could not bring proceedings, nor did it have any legal right to enforce. It did not have a "sufficient interest" within its constitutional functions. It could not be made a party to the proceedings. It is a matter for the trial judge as to whether the Ombudsman Commission should be heard on the substantive review pursuant to O.16 r.9(1) although that Rule permits non parties to be heard in opposition, not in favour of the Summons.

Cases Cited:
PNG Printing Co Pty. Ltd Andrew Thompson [1993] PNGLR 81; CBS Inc. v Ranu Investments Pty. Limited [1978] PNGLR 66; Pinpar Development Corporation v TL Timber Pty. Limited [1999] PNGLR 139; AGC (Pacific) Limited v Sir Albert Kipalan & 4 Ors N1944; SCR No.4 of 1980; Re Petition of MT Somare [1981] PNGLR 265; R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378; The Ombudsman Commission and Ila Geno Chief Ombudsman and others v National Parliament and others SC721.

RULING ON APPLICATION BY OMBUDSMAN COMMISSION TO BE JOINED AS PLAINTIFF

Counsel:
Mr. Nemo Yalo, for the Applicant Ombudsman Commission
Mrs. T. Nonggor, for the First and Second Plaintiffs

4 July 2006

1. LAY J.: The Ombudsman Commission of Papua New Guinea applies to be joined as Fourth Plaintiff in these proceedings. The First and Second Plaintiffs, who were the only plaintiffs at the time of the application, consent. At the time that this application was moved I heard and allowed the application of John Denaiya to be joined as Third Plaintiff. I asked for all interested plaintiffs to make written submissions in respect of this application as I was concerned that the joinder of the Ombudsman Commission as a Plaintiff may be a breach of the Constitution Section 219(6) which provides that:

"Except as provided by or under Division III .2 (leadership code), the Commission's powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice."

2. The substantive proceedings concern the implementation of a decision by the Second Defendant by which the First Defendant may receive by way of extension to a Timber Permit, a timber concession of not quite twice the size of the original concession area. The Plaintiff’s claim is that the extension was granted unlawfully in breach of many provisions of the Forestry Act.

3. The Ombudsman Commission prepared a report into the matter and made recommendations to the Second Defendant which it is alleged the Second Defendant has not implemented.

4. An application to join a party to proceedings is made under Order 5 Rule 8 of the National Court Rules which provides:

8.	Addition of parties. (8/8)

(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 and make orders for 
the further conduct of the proceedings.

(2)	A person shall not be added as plaintiff without his consent.

5. Joinder can be permitted to claim a legal right: See PNG Printing Co Pty. Ltd. v Andrew Thompson [1993] PNGLR 81. Another test is whether or not there could be a cause of action against the proposed party: See CBS Inc. v Ranu Investments Pty. Limited [1978] PNGLR 66 which was followed in Pinpar Development Corp. v TL Timber Pty. Ltd [1999] PNGLR 139. It is ordinarily desirable to join all parties who might have causes of action against each other arising out of the same facts, to avoid a multiplicity of actions: See AGC (Pacific) Ltd. v Sir Albert Kipalan & 4 Ors N1944.

6. Because the substantive proceedings are by nature a judicial review conducted pursuant to the provisions of Order 16 of the National Court Rules, whether the joinder of the Ombudsman Commission is "necessary" can be tested by examining who should or can be a party to such proceedings. To be a plaintiff in proceedings the applicant ought to have sufficient interest in those proceedings to bring proceedings in their own right. Order 16 Rule 3(5) provides that "the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

7. Counsel for the First and Second Plaintiffs has referred me to the case of SCR No. 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265. That case was concerned with the constitutionality of a piece of legislation and according to the head note, the five members of the bench held that every citizen has standing to raise the constitutionality of an Act of the Parliament. All members except Myles J. specifically found that the common-law rules of standing were not directly applicable because they were developed under a different constitutional background to the constitutional framework which applies in this country. In my view the true ratio decidendi of that case is not relevant to a common-law action for judicial review. However, in the course of his judgment, Kapi J. (as he then was), while discussing the common-law position, at page 294, referred to the judgment of Lord Denning R v In land Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All E.R. 378 where Lord Denning approved the principles stated by Professor H. W. R. Wade Q. C. in Administer Law (4th ed. 1977, page 608) where he said:

"(It (law) should recognize that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interested than a regard for the due observance of the law."

8. And at page 295 of his judgment Kapi J. quotes again from the judgment of Lord Denning at page 391 where he said "... But a man who is genuinely concerned can point, objectively, to something that has gone wrong and should be put right. He should be heard."

9. And also on page 295 of his judgment Kapi J. said:

"The new rule would be that the applicant must have sufficient interest in the matter.... As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning... I would leave it to the courts to develop the application of the rule in individual cases."

10. The Somare Case was dealing with the standing of individuals, not the standing of the Ombudsman Commission as a constitutional institution. 

11. In the case of The Ombudsman Commission and Ila Geno Chief Ombudsman and others v The National Parliament and others SC 721 (Kapi C.J., Injia DCJ, Salika J, Jalina J, Sakora J) the court said:

"We consider that the Ombudsman Commission is a creature of constitutional laws and its functions and standing should be a matter left to be decided by legislative act in the National Parliament. We believe Scheduled 2.4 places this restraint on the power of the Court from formulating or developing the underlying law in some circumstances if the Court considers that it is not proper to do so by judicial act. In State v Wik Kor [1983] PNGLR 24 Kapi DCJ (as he then was) refused to formulate a rule of law for this very reason. So for the same reason we decline to formulate a rule of law relating to standing of the Ombudsman Commission."

12. Now in this case it is not argued that the Ombudsman Commission has a legal right to enforce, or that it could have a cause of action against any of the defendants. The highest the Ombudsman Commission's case can be put is that it is, by virtue of its report into the matters the subject of these proceedings, well-informed and would be in a position to greatly assist the court. It is also submitted that it should have a role to play in ensuring the proper application of the law by government departments and institutions and the facts raise the issue of whether the Ombudsman Commission’s recommendations can be ignored.

13. The Plaintiffs have submitted that this expanded role for the Applicant can be supported by virtue of the Constitution s.22 (powers or duties not to be left without legal effect), the National Goals and Directive Principles, which although generally non-justiciable (Constitution s.25) is not the case for the Ombudsman Commission in some circumstances. See Constitution s.25(4) which provides: 

"Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or on any other body prescribed for the purpose of Division III .2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate."

14. A similar provision applies in relation to enforcement of the basic social obligations (Constitution s.63(4). In my view the placing of the comma in the provision is significant. It is not placed after Ombudsman Commission. The effect is that the reference to the Ombudsman Commission is qualified by the words which follow. It seems clear to me that the provision is directing the Ombudsman Commission, in exercising its jurisdiction under the Leadership Code, to take into account the National Goals and Directive Principles. It is not a provision removing the effect of section 25 (1) from the Ombudsman Commission for all purposes.

15. From the provisions of Constitution section 219 the function of the Ombudsman Commission is to investigate. Neither the Constitution nor the Organic Law gives the Ombudsman Commission a role as intervener in litigation or as prosecutor or plaintiff to explain or enforce the recommendations of its reports. If it finds there has been a breach of duty the Ombudsman Commission shall report it to the permanent head of the body investigated and the Minister (Organic Law on the Ombudsman Commission ("OLOC") s.17(7) and s.22), and where unfairness has been wrought by legislation, the Parliament (OLOC s.22(4)) and may make reports to other officials (OLOC s.23). The Ombudsman Commission has a further specific jurisdiction under the Leadership Code if any of the persons who have breached a duty are leaders. When s.219(6) of the Constitution speaks of "enforcement", it must be speaking about the enforcement of the results of the Ombudsman Commission's investigations because investigation is all that the section authorizes. Now as I find, the sole functions of the Ombudsman Commission are to investigate, and report and its duties under the Leadership Code, the latter being irrelevant for current purposes, what the Ombudsman Commission is doing in joining proceedings, is attempting to enforce the reports of its investigation by litigation, which s.219(6) prohibits it from doing.

16. It may appear to some to be a very good idea for the Ombudsman Commission to have the power to bring its reports to court or to intervene in litigation to assist the court and to ensure that the law is followed, but that is not a role which the constitutional laws have given it. Nor is it a role which I am prepared to develop for it for the reasons set out in The Ombudsman Commission and Ila Geno Chief Ombudsman and others v The National Parliament and others (supra). I find that there is no legal right in the Ombudsman Commission which it seeks to enforce in these proceedings, it has no cause of action against any of the defendants, it has no power to enforce its reports by joining in proceedings as a plaintiff and it has no general function arising out of the Constitution or the OLOC as a "concerned citizen" to enforce the law. It therefore does not have a "sufficient interest" within the confines of its constitutional functions to be a party to the proceedings.

17. I am mindful of the observation that "it is ordinarily undesirable, except in simple or clear cases, to determine the question whether the applicant has a sufficient interest or locus standi, as a preliminary issue: See IRC v National Confederation of Self employed and Small Businesses Ltd (supra) at 642-644. In my view this is such a clear and simple case.

18. I also consider that the refusal of joinder will not result in a multiplicity of actions because of my view that the Ombudsman Commission has no jurisdiction to bring an action against any of the Defendants in the current circumstances. 

19. For those reasons I refuse the Ombudsman Commission's application to be joined as a plaintiff in the proceedings.

20. I leave open the question as to whether the Ombudsman Commission is a person from whom the Court may hear on the hearing of the substantive hearing pursuant to O.16 r.9(1), although that Rule permits non parties to be heard in opposition to and not in favour of the Summons. Whether or not a non party is heard at the substantive hearing is a matter I consider should be determined by the trial judge. 

ORDERS:

1.	The Ombudsman Commission’s application to be joined as a party is refused;

2.	Costs follow the event. 

Nemo Yalo: Lawyer for the Ombudsman Commission
Gadens Lawyer: Lawyers for the First and Second plaintiffs