Simakade Holdings Ltd v Dotaona [2018] PGNC 253; N7356 (17 July 2018)

N7356

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 144 of 2018

BETWEEN:
SIMAKADE HOLDINGS LTD
First Plaintiff

AND:
NAI-AI KABOKU INCORPERATED LAND GROUP (ILG Reg. No. 725)
Second Plaintiff

AND:
LOBOT LOTU, HOSEA KUNAM, JONAH SURUGA, ORIM KOPMAN AND THOMAS TURANA as Customary Landowners of the Dengnenge Resources Area, Open Bay, Lassul, Inland Baining Local Level Government, East New Britain Province
Third Plaintiff

AND:
DAVID DOTAONA, CHAIRMAN OF THE NATIONAL FOREST BOARD
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
DENGNENGE RESOURCES DEVELOPMENT LIMITED
Third Defendant

AND:
KK CONNECTIONS LIMITED
Fourth Defendant

AND:
LALOANI NO. 8 LIMITED
Fifth Defendant

Kokopo: Anis J
2018: 6^th and 17^th July

JUDICIAL REVIEW – Interlocutory hearing – motion to dismiss judicial review - multiplicity of proceeding – whether that amounts to abuse of the court process

PRACTICE AND PROCEDURE – source invoked in the notice of motion – Order 12 Rule 40(1)(c) of the National Court Rules – Order 16 of the National Court Rules discussed - whether application is incompetent

PRACTICE AND PROCEDURE – argument raised at the leave hearing – whether argument can be reargued by the same party after the grant of leave or at the second stage of the judicial review proceeding

Facts

The plaintiffs are applying for judicial review to challenge the decision of the 1^st and 2^nd defendants in granting a Forest Clearing Authority or licence to the 3^rd defendant, to clear forest in the Lasul area of Baining LLG, in East New Britain. Leave to apply for judicial review has been granted and the judicial review application is pending. The 3^rd, 4^th and 5^th defendants in the meantime have applied to dismiss the proceeding.

Held

1. Order 12 Rule 40(1)(c) of the National Court Rules is not the relevant or the correct provision where one could use to invoke the National Court’s jurisdiction in judicial review proceedings that are commenced under Order 16 of the National Court Rules.
   

(Cases: Peter O’Neill v. Nerrie Ellakim (2016) SC1539 and Timothy v Marus [2014] SC 1403 applied)

2. A party or a person who is not a party but who has an interest in the matter, who is aggrieved by the decision of the National Court that has granted leave to apply for judicial review, may appeal directly under Order 10 of the Supreme Court Rules to the Supreme Court to challenge the said decision.
   

(Case: Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346 applied)

3. Any application that is filed after leave is granted that challenges the merit or that challenges whether there is a reasonable cause of action, should itself be regarded as an abuse of the Court process unless:

(i) if it can be shown that a crucial or material fact or facts concerning the merit of the proceeding, was not disclosed to the leave Court; or

(ii) if it can be shown that new facts have arisen since the granting of the leave application which are relevant concerning the merit of the judicial review proceeding concerned.

4. The notice of motion was dismissed with costs because it was incompetent and it was an abuse of the Court process.
   

Cases cited:

Peter O’Neill v. Nerrie Ellakim (2016) SC1539
Timothy v. Marus [2014] SC 1403
Simakade Holdings Ltd & Ors v. PNG Forest Authority & Ors (2018) N7213
Rei Logona v. Clark Piokole (2015) SC1618
Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346

Counsel:

Mr N. Saroa, for the First and Second Plaintiffs
Mr F.U. Cherake, for the Third Plaintiff
Mr Mitige, for the First and Second Defendants
Mr T. L. Tape, for the Third, Fourth and Fifth Defendants

RULING

17^th July, 2018

1. ANIS J: This is my ruling on an interlocutory matter in this judicial review proceeding. The notice of motion concerned was filed by the 3^rd, 4^th and 5^th defendants on 25 May 2018. It sought the following relief:

1. Pursuant to Order 12 Rule 40(1)(c) of the National Court Rules, the proceedings be dismissed for an abuse of process of the Court.
2. An order for costs against the Plaintiffs.
3. Any other further order this Honourable Court deems fit to be so ordered.
   

2. The 1^st and 2^nd defendants supported the notice of motion. The plaintiffs on the other hand opposed it. I heard arguments from counsel on 6 July 2018 and reserved my decision to today at 9:30am. I will rule on it now.

BACKGROUND

3. The 1^st plaintiff and the 3^rd defendant hold separate licences which have been issued by the 1^st and 2^nd defendants under the Forestry Act of 1991 as amended (FA). For the 1^st plaintiff, it currently holds three (3) timber permits to harvest logs over an area described briefly as Lasul in the Baining LLG of East New Britain Province (logging area). The 3^rd defendant, over the same logging area, holds a Forest Clearing Authority or licence (FCA licence) which was also issued under the FA. Leave to apply for judicial review was granted on 18 April 2018. The judicial review will be to challenge the decision of the 1^st and 2^nd defendants in granting the FCA licence over the logging area to the 3^rd defendant.

4. Let me address the notice of motion.

ISSUES

5. The issues that arise from the notice of motion are as follows:

(i) Whether the source of the notice of motion namely Order 12 rule 40(1)(c) of the National Court Rules, is the correct provision where an applicant may invoke to apply to dismiss a judicial review proceeding.
(ii) Whether the question of multiplicity or duplicity of proceeding had been considered by the Court and if so, what avenue or avenues do the 3^th, 4^th and 5^th defendants have if they are dissatisfied with the Court’s ruling?
(iii) Subject to the above preliminary issues, whether this judicial review amounts to multiplicity/duplicity of the court proceedings and if so whether it should be dismissed.

CORRECT SOURCE

6. Order 12 rule 40(1)(c) reads:

40. Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings —

.....

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

7. Is that the correct source to invoke in an interlocutory application for judicial review? The plaintiffs argue that the correct source should be under Order 16 of the National Court Rules. The defendants on the other hand argue that the source cited namely Order 12 Rule 40(1)(c) is the correct source. The defendants also argue that even if the source was wrongly cited, the Court’s power is discretionary and the Court should not dismiss the motion but instead deal with its substance. The defendants rely on case authorities which I have noted.

8. In my view, this legal issue has been settled by the case law. I refer to the Supreme Court’s decision in the case of Peter O’Neill v. Nerrie Ellakim (2016) SC1539. The Supreme Court held and I quote:

18. Given this we prefer the reasoning and conclusion in Timothy v. Marus (supra) and are of the view that Order 16 National Court Rules provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. Consequently in the National Court in a judicial review proceeding, if a notice of motion that contains an application for interlocutory relief that is not brought pursuant to a Rule in Order 16 is accepted, a fundamental error is committed. This is because such a notice of motion has not engaged the jurisdiction of the Court to permit it to adjudicate upon an interlocutory application in a judicial review proceeding.

9. The Supreme Court in the above case followed its earlier decision on point which was in the case of Timothy v Marus [2014] SC 1403. In Marus’s case, the Supreme Court held and I quote, “Judicial review under NCR Order 16 is a special and exclusive procedure which deals with complains by person aggrieved by the decisions of public administrative bodies......” The Supreme Court therein held that the lower court had erred in accepting the notice of motion that was filed under Order 4 rule 36 of the National Court Rules, which it said had no application to judicial review proceedings and consequently, it said that that had resulted in a fundamental error going to jurisdiction.

10. I therefore find the 3^rd, 4^th and 5^th defendants’ notice of motion to be incompetent. But before I exercise my discretion and consider whether to dismiss the notice of motion, I will consider the next preliminary argument which is whether the ground relied upon in the notice of motion, that is, “multiplicity of proceeding”, had been considered by the Court, and if so, what should have been or should be the correct process to follow if a party, like the defendants, are aggrieved by the leave Court’s decision.

MULTIPLICITY OF PROCEEDINGS

11. The 3^rd, 4^th and 5^th defendants argue that the plaintiffs have filed multiple or related proceedings apart from this judicial review proceeding. As such, they argue that that amounts to multiplicity of proceedings which they conclude constitutes an abuse of the court process. On that basis, the defendants submit that the judicial review proceeding must be dismissed.

12. The plaintiffs, in reply, submit that the said argument had been raised and had been considered by the leave Court at the hearing of the application for leave to apply for judicial review. As such, they say that the issue is resjudicata and they submit that the notice of motion is misconceived and must be dismissed.

13. In response, the 3^rd, 4^th and 5^th defendants submit that they are entitled to raise the same argument. They submit that a leave hearing is not a proper hearing; that the leave Court is required to briefly consider whether a matter should be referred to for judicial review; that not all parties are given the opportunity to properly address the matter. Counsel referred to case authorities in support of his argument.

14. I concur generally with counsel for the 3^rd, 4^th and 5^th defendants regarding the hearing process at the leave stage. Proceedings that are conducted at that stage and except for the State, are heard ex-parte. The leave hearing and Court’s decision, in practice, are normally all done together in an oral hearing. Evidence adduced are or would be those that are filed by an applicant, and the Court will be required to look at them as well as at the pleadings particularly the Statement in Support that is filed under Order 16 rule 3(2)(a) of the National Court Rules, before it makes its ruling on whether or not to grant leave to apply for judicial review.

15. The procedural facts concerning the leave hearing for the present case, however, were quite different. Let me address that now. At the leave hearing, the Court had granted leave to counsel for the 3^rd, 4^th and 5^th defendants to appear and oppose leave to apply for judicial review. The 3^rd, 4^th and 5^th defendants had raised arguments which include arguments on multiplicity/duplicity of court proceedings. In the end, I reserved my ruling and later published it on 18 April 2018 as an unreported judgment namely Simakade Holdings Ltd & Ors v. PNG Forest Authority & Ors (2018) N7213. The plaintiffs, in their submissions, point to paragraph 42 of my decision and submit that the ground had been argued unsuccessfully. Paragraph 42 of my said decision reads:

42. Finally, the 3 defendants allege duplicity of proceedings. They refer to the related proceedings filed, which I have covered above in my judgment. They say that this therefore amounts to abuse of the court process. I dismiss the argument. I find that there is no other judicial review proceeding filed that is similar to this one, which seeks the relief as sought in the Statement. The primary claim here is to challenge the process based upon which the FCA licence was granted to the 3^rd defendant on 6 May 2016 by the 1^st and 2^nd defendants. The 3 related proceedings are filed under ordinary originating summonses pursuant to Order 4 division 4 of the National Court Rules.

16. I uphold the plaintiffs’ submission. I note that I have, in my decision, addressed the issue of duplicity or related proceedings that have been filed by the parties. See also the Supreme Court’s decision in Rei Logona v. Clark Piokole (2015) SC1618. But that aside, I note that the 3^rd, 4^th and 5^th defendants further argue that they are still entitled to raise similar or the same argument after leave is granted and before the actual judicial review application hearing. So I ask myself this. “Can the 3^rd, 4^th and 5^th defendants raise the same argument?” My answer to that is, “no”. I differ from the 3^rd, 4^th and 5^th defendants’ argument for the following reasons. Firstly, the general proposition that a judge is required to quickly peruse and consider whether to grant or refuse to grant leave to apply for judicial review, is primarily permitted to save the Court’s time. It is also based on the fact that the hearing, except for the State who is required to be heard, is conducted ex-parte as of right under the law. However, in this case and as I have stated above, leave to intervene had been granted to the 3^rd, 4^th and 5^th defendants and they had made out their arguments including their arguments on multiplicity or duplicity of proceedings. And the Court has reached a decision after that. If the 3^rd, 4^th and 5^th defendants were dissatisfied with the leave Court’s decision, what should have been their recourse? In my view, they should have appealed to the Supreme Court, for example, by filing a notice of motion before the Supreme Court under Order 10 of the Supreme Court Rules. See also the Supreme Court case of Kitogara Holdings Ltd v. NCDIC [1988-89] PNGLR 346.

17. I will add this. If a leave Court finds, in addition to the other requirements, that there is an arguable case or that the judicial review is meritorious, the matter should proceed to the substantive judicial review hearing and it should be heard without delay. A notice of motion that is subsequently filed by a respondent or an interested party to dismiss the judicial review proceeding on the basis of want of reasonable cause of action or for want of merit, in my view, should itself (i.e., the notice of motion) be regarded as abuses of the court process. That is, if a respondent or an interested party fails to appeal the decision of the leave Court after the leave Court finds that there is an arguable case, the issue of whether the judicial review has merit or is arguable, should not be challenged in a further interlocutory process except at the substantive hearing of the judicial review application itself. An exception I see where the judicial review Court may proceed to hear an application of this nature (i.e., application to dismiss a judicial review for want of merit after leave has been granted and) before the actual judicial review hearing, is in a case where if it can be proven that the applicant did not fully disclose a crucial or material fact or facts concerning the merit of the proceeding, at the hearing of the application for leave to apply for judicial review. The second exception I see is where the facts or events have changed since the time the Court had granted leave to apply for judicial review and that the facts are crucial concerning the merit of the proceeding. I make these rulings because I observe generally that judicial time for judicial review proceedings have now been taken up with applications after applications filed by parties after leave stages which has seen judicial review proceedings being delayed and in many instances far beyond their required hearing times. In my view, judicial review proceedings, from the time leave is granted, should take less than three (3) months to complete. Instead, I see that it can take beyond six (6) months and even years before a judicial review matter is finally resolved or is determined. In my view, such practices go beyond the requirements as inscribed under Order 16 in the National Court Rules and in the case law, when dealing with judicial review proceedings.

SUMMARY

18. I will exercise my discretion and dismiss the 3^rd, 4^th and 5^th defendants’ notice of motion on the basis that it is incompetent and also on the basis that it is an abuse of the Court process.

REMARK

19. I find the arguments of both the plaintiffs and the defendants regarding the defence of res judicata misconceived. Not all judicial processes have been exhausted at this stage on the issue of duplicity of court proceedings.

COST

20. I will order cost of the application to follow the event. It will be assessed on a party/party basis to be taxed if not agreed.

THE ORDERS OF THE COURT

21. I make the following orders:

1. The 3^rd, 4^th and 5^th defendants’ notice of motion is dismissed.
2. The 3^rd, 4^th and 5^th defendants shall pay the plaintiffs’ costs on a party/party basis which shall be taxed if not agreed.
3. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.

________________________________________________________________
Nelson Lawyers: Lawyers for the First & Second Plaintiffs
Cherake Lawyers: Lawyers for the Third Plaintiff

PNG Forest In-House Lawyers: Lawyers for the First & Second Defendants
Kandawalyn Lawyers: Lawyers for the Third, Fourth & Fifth Defendants