N8248
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 811OF 2019
BETWEEN
IDILE LALAETA FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE HEHEGO LAN OF WIOLE VILLAGE,
HUHU LLG AREA, ALOTAU DISTRICT, MILNE BAY PROVINCE
Plaintiffs

AND
VINCENT LINGE, PROVINCIAL LAND COURT MAGISTRATE, ALOTAU
First Defendant/Respondent

AND
JANET DALELEKINA & GROUP OF HOULANA WIWAI CLAN OF WIYOLE, HUHU LLG AREA, ALOTAU DISTRICT,
MILNE BAY PROVINCE
Second Defendants/Respondents

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Respondent

Alotau: Toliken, J.
2020: 19 February

PRACTCE & PROCEDURE – Motion for dismissal – Failure to authenticate representative capacity – Failure to plead substantive relief in Order 16 Statement – Whether failures fatal –Motion filed after leave for judicial review was granted –Order 4 Rule 20, Order 16 Rule 3 National Court Rules.

After leave was granted for judicial review, the Third Defendant sought to have the proceedings dismissed for failure by the Plaintiff to authenticate his representative capacity pursuant to Order 4 Rule 20, and to plead a substantive relief in his Order 16 Statement pursuant to Order 16 Rule 3 of the National Court Rules. 

Held:

(1)	In judicial review proceedings, where the primary function of the National Court is to review the process in which an administrative, quasi-judicial or judicial tribunal arrived at its decision, a person aggrieved by the decision of a tribunal, need not plead his representative capacity pursuant to Order 5 Rule 3 of NCR.

(2)	While Order 16 Rule 3(4) NCR specifically relates to amendments at the leave stage, it does stipulate that the Court’s general power to allow an amendment to suits under Order 8 Division 4 NCR is not prejudiced or abrogated. It should follow therefore, that, notwithstanding that leave had been granted in this case, the Court still retains its general power of amendment under Order 8 Division 4 NCR and may allow the Plaintiff to amend his statement by pleading the relief upon which the review is sought.

(3)	The Plaintiff is allowed leave to amend his Order 16 Statement by pleading the substantive relief he is seeking.  

Cases Cited:

Kwayok v Singomat (2017) N7097 
Mali v The Independent Sate of Papua New Guinea (2002) SC 690
Mapiso v Enga Provincial Government (2018) N7722
Tigam Malewo v Keith Faulkner (2009) SC960
Yakasa v Piso (2014) SC 1330

Counsel:

S Alberic, for the Plaintiff
P Palek, for Third Defendant 

RULING
19thFebruary, 2020
1.	TOLIKEN, J:  By Notice of Motion filed on 13th January 2020, the Third Defendant Jane Dalelekina applies for the following orders –

•	The proceedings for the failure of the Plaintiff IDILE LALAETA to authenticate his representative capacity pursuant to Order 4 Rule 20 of the National Court Rules. (sic.)
•	Further, and in the alternative, that the proceeding be dismissed for failure of the Plaintiffs’ to plead and seek any substantive relief in their Amended Order 16 Statement filed on 13th December 2019. (sic.)

2.	It is to be noted that the first order sought by the Third Defendant appears not to make any sense. It obviously omits the word “dismissed”, but this passed without comment by the Plaintiff. It is apparent though that the Third Defendant sought to have the proceedings “dismissed” for failure by the Plaintiff to authenticate his representative capacity and that is exactly what the parties understand the first relief to be. I will proceed therefore on that basis. 
BACKGROUND
3.	The Plaintiff commenced these proceedings on 13th November 2019. He filed an Originating Summons pursuant to Order 16 Rule (3)(1) of the National Court Rules (NCR) for leave to apply for judicial review of a certain decision of the Provincial Land Court. In his Order 16 Statement, the Plaintiff sought an order in the nature of certiorari to remove into this Court and quash the said decision of the Provincial Land Court made on 01st June 2018 and to restore the order of the Local Land Court made on 16th November 2015. The grounds for which relief was sought were essentially for improper exercise of power under the Land Dispute Settlement Act Ch. 45 and a failure to do substantial justice as required by that Act.

4.	I heard and granted the application for leave for judicial review on 05th December 2019.  On 13th December 2019 the Plaintiff filed an Amended Originating Summons and Order 16 Statement. The Third Defendant challenged the competency of the Amended Order 16 Statement on the basis stated in her Notice of Motion.
ISSUES
5.	The issues to consider are these –

1.	Whether the Plaintiff, who purportedly represents himself and others, is required to authenticate his representative capacity pursuant to Order 4 Rule 20 of the NCR in judicial review proceedings?

2.	Is the plaintiff required by Order 16 Rule (3) of NCR to plead a relief in his Order 16 Statement? If so, what is the effect if he does not? 

ISSUE 1. 	Whether the Plaintiff Must Authenticate his Representative Capacity 

6.	Mr. Palek of Counsel for the Third Defendant submitted that the Plaintiff, who purports to represent himself and his clan members, must authenticate his representative capacity in accordance with Order 4 Rule 20 NCR. That he has not done. Mr. Alberic, of Counsel for the Plaintiff, appeared to concede to Third Respondent’s contention, but argued that Order 4 Rule 20 which falls under Division 3 of that Order applies to writs of summons. Counsel, however, cited the leading case on representative action - Mali v The Independent Sate of Papua New Guinea (2002) SC 690 where the Supreme Court held that in all actions or proceedings of a representative nature, all intended plaintiffs must be named and duly identified. Counsel submitted that this “oversight” may be appropriately cured by amending the originating summons to make it compliant.

7.	Order 4 Rule 20 (1)(a)(b) relevantly provides –

20.    Endorsement as to capacity. (UK 6/3)
(1)     Before a writ of summons is issued it must be endorsed –
(a) where the plaintiff sues in a representative capacity— with a statement of the capacity in which he sues; and
(b) where a defendant is sued in a representative capacity—with a statement of the capacity in which he is sued.
(2)     …
(3)     …

8.	Rule 20 comes under Division 3 of Order 4 which Division deals with Writs of Summons and the commencement of the originating process thereto.  I would therefore agree with Mr. Alberic, of Counsel for the Plaintiff, that Order 4 Rule 20 has no application in as far as an Originating Summons under Order 16 Rule 3 is concerned. Originating Summonses are appropriately dealt with under Division 4 of Order 4. And so, in that respect the Third Respondent’s jurisdictional basis for her application might be misconceived, and on that basis alone, her motion ought to be denied.

9.	It is to be noted, however, that Order 4 Rule 20 was not the rule upon which the Supreme Court in Mali v The State premised its rulings. What was under discussion there was Order 5 Rule 3 which relevantly provides –
3.      Joint right. (8/3)
(1)     Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him—
(a)  all persons so entitled shall be parties to the action; and
(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.
(2)     Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.
10.   	This Rule is of general application and thus clearly apply to both originating processes – writ of summons and originating summons. It is to be read with Order 4 Rule 1 which provides that proceedings in the National Court shall be commenced only by a writ of summons or an originating summons. Order 4 Rule 2 provides for situations upon which an action shall be commenced by a writ of summons while Order 4 Rule 3 stipulates those situations where a plaintiff has the choice of commencing proceedings either way, unless the Rules or an Act requires an action to be commenced by a writ of summons. From this, the requirement under Order 5 Rule 3 becomes apparent because some representative or class actions may very well be appropriately commenced by originating summons instead of a writ of summons. Those to me are clearly the situations Order 5 Rule 3 is directed at.  
11.   	And in as far as Order 5 Rule 3 is concerned, it is now well settled since Mali v The State (supra.) that where a person commences proceedings, whether by writ of summons or originating summons, in a representative capacity, the following must be done: (1) all intended plaintiffs (those whom he claims to  represent) must  be named in the originating  process, (2) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or their personal representative to act for them  and (3)  any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.  (Tigam  Malewo v Keith Faulkner (2009) SC960; Kwayok v Singomat(2017) N7097; Mapiso v Enga Provincial Government (2018) N7722)

12.   	Order 16 of course stipulates that applications for judicial review must be commenced by originating summons and it would naturally follow that it would fall under the purview of Order 5 Rule 3.  And so, it would appear to me that the Plaintiff might technically be in breach of Order 5 rule 3 for failing to name the individuals he claims to represent, failing to secure instructions from them individually and for failing to produce to the Court those persons’ authority for him to file proceedings in their behalf.  
13.    	While it might be possible to amend the originating summons as suggested by Mr. Alberic under Order 16 Rule 3(4),  which provides that a court hearing an application for leave may allow the applicant’s application to be amended whether by specifying different or additional  grounds for relief or otherwise on such terms as it thinks fit, we have gone past the leave stage. While amendments at this stage of the proceedings as contemplated by the Rules, may, prima facie, be not in order, Order 16 Rule 3 (4) does not divest the Court of its general power of amendment under Order 8 Division 4. I will come back to this point when I discuss the second issue below. 
14.  	Be that as it may, the pertinent question in my view is, whether the requirements of Order 5 Rule 3 NCR ought to strictly, if at all, apply to judicial review proceedings.  I say this because judicial review is concerned with administrative, quasi-judicial or judicial decisions of administrative and quasi-judicial tribunals and inferior courts. Here the inquiry is not about the correctness or otherwise of the decision itself, but rather a scrutiny of the process by which that decision was reached. The court is therefore, in the strict sense, not resolving ultimate rights of parties whose interests may have been affected by the tribunal in question, even though the reviewing court’s decision may very well do so ultimately. 
15.   	Apart from the party who is aggrieved by the decision sought to be reviewed and the decision maker or tribunal, any other party would only be a nominal defendant. The plaintiff is not suing the defendant in pursuance of remedy for civil wrong, be it in tort or in contract or breach of a constitutional right. Because of the specific and restricted nature of judicial review jurisdiction, I do  not think that  it is appropriate nor intended by the Rules to impose an onerous duty on persons in judicial review proceedings to comply with the strict requirements of Order 5 Rule 3, even if they are acting in a representative capacity 
16.  	The Third Defendant conceded through counsel that the issue of representation was never raised in the Land Courts from which these proceedings emanated, so why should it now be an issue before this court?  If the Plaintiff’s standing to represent his clan members was an issue it ought to have been raised in the Local and Provincial Land Courts. The Third Defendant’s failure object to the Plaintiff’s standing and representative capacity in the Land Courts implies acquiescence, and she is therefore estopped from raising the issue in this Court, even if the rules of court allow her to do so.
17.   	And so on this issue, I rule that in judicial review proceedings, where the primary function of the National Court  is to review the process in which an administrative, quasi-judicial or judicial tribunal arrived at its decision, a person aggrieved by the decision of a tribunal, need not pleaded his representative capacity pursuant to Order 5 Rule 3 of NCR.

Issue 2: 	Whether the plaintiff is required by Order 16 Rule (3) of NCR to plead a relief in his Order 16 Statement? If so, what is the effect if he does not?
18.   	Mr. Palek for Third Respondent submitted the Plaintiff’s failure to plead same a relief in his Order 10 Statement renders the proceedings incompetent and the proceedings ought therefore to be dismissed. Mr. Alberic again submitted that this deficiency can also be cured by amendment, which, if the Court is minded to grant, can be done almost immediately.
19.   	The requirement under Order 16 Rule 3 (2)(a)(b) for the Plaintiff to plead the relief he craves from the Court is mandatory and is in the following terms –
3.      Grant of leave to apply for judicial review. (UK. 53/3)
(1)     ...
(2)     An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported—
(a)  by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
20.   	So, did the Plaintiff in this case plead the relief he was seeking?
21.   	It is instructive to set out the Amended Originating Summons and the relevant parts of the Amended Order 16 Statement here to fully appreciate the Third Defendant’s motion.
AMENDED ORIGINATING SUMMONS
The Plaintiffs claim leave of the Court pursuant to Order 16 Rule 3(1) of the National Court Rules to apply for judicial review of the decision of the First Defendant made on 1 June 2018, for the purposes of certiorari, the decision by which –
(1)	The decision and Order of the Local Land Court made on 5th November 2015 was quashed in its entirety; and
(2)	The matter was remitted for re-hearing in a properly constituted quorum within the terms of Section 23 of the Land Disputes Settlement Act; and
(3)	Parties were given liberty to seek mediation in the Local Land Court. 
………………………………………………………
AMENDED STATEMENT PURSUANT TO ORDER 16 RULE 3 (2)(A) OF THE NATIONAL COURT RULES 
	…
5.	The Plaintiffs seek leave to apply for judicial review of the decision of the First Defendant made on 1 June 2018 by which –
(a)	the decision and order of the Local Land Court made on 5 November 2015 was quashed in its entirety; and 
(b)	the matter was remitted for re-hearing in a properly constituted quorum with the terms of Section 23 of the Land Disputes Settlement Act; and
(3)	parties were given liberty to seek mediation at the Local Land Court.
	…
22.    	And at paragraph 6 the Plaintiff states the grounds (6 in total) upon which the relief is sought.
23.   	Unfortunately, it is crystal clear that the Plaintiff did not plead any relief at all in his Amended Order 16 Statement. If he intended to apply for certiorari to remove the orders of the Provincial Land Court to this Court be quashed, then he failed to plead that. Is that fatal? But for the power of the Court to allow an amendment to an applicant’s statement under Order 16 Rule 3(4) the defect could easily be cured by amendment as submitted by Mr. Alberic. There is, however, a problem there. An amendment under Rule 3 (4) may only be allowed during the leave stage. In this case, leave has been granted and it would appear that no amendment can be allowed once the matter has gone past that stage. The Court is, however, not divested of its general power to allow amendments under Order 8 Division 4 and Order 16 Rule 3(4) says exactly that. The Rule relevantly provides –
(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.
24.    	And so, while Rule 3(4) specifically relates to amendments at the leave stage, it does stipulate that the Court’s general power to allow an amendment to suits is not prejudiced or abrogated.
25.    	It should follow therefore, that, notwithstanding that leave had been granted in this case, the Court still retains its general power of amendment under Order 8 Division 4  and may allow the Plaintiff to amend his statement by pleading the relief upon which the review is sought. It is worth noting that the Plaintiff did in fact plead the relevant relief in his original Statement, but for reasons known only to him and counsel, he omitted to do the same in his Amended Statement.
26.   	While non-compliance with the Rules in this case should really see these proceedings dismissed, it must be noted as the Supreme Court said in Yakasa v Piso (2014) SC 1330, important as they are for the expedient, timely and cost effective resolution of litigations, rules of court are “handmaidens of justice, not its master.” Hence strict insistence on compliance with rules of court which result in injustice to the parties or any one of them, would be inimical to the Constitutional command under Sections 155 (4) and 158 of the Constitution for the court to make orders as are necessary to do justice in the circumstances of a particular case and to give paramount consideration for the dispensation of justice thereto. The Court’s supervisory powers in judicial review derives primarily from Section 155(4) and so it would be in the interest of justice that the Plaintiff be allowed to amend his Amended Order 16 Statement by pleading the relief he craves for.
27.   	The defendants, in my opinion would not be prejudiced in anyway. The Third Defendant in particular will not be prejudiced because it is the decision of the First Defendant that will be reviewed and not any act directly attributed to the latter.
28.  	My orders are therefore as follows –
1.	The Third Defendants motion to dismiss the proceedings for failure by the Plaintiff to authenticate his representative capacity pursuant to Order 4 Rule 20 is dismissed.
2.	Subject to Order 3 below, the Third Defendant’s alternative Motion for the proceedings to be dismissed for failure by the Plaintiff to plead a relief in his Order 16 Statement is denied.
3.	The Plaintiff is allowed to amend his Amended Order 16 Statement filed on 13th December 2019 by pleading the relief upon which the review is sought and thereafter file and serve the Amended Statement by close of business on Friday 21stFebruary 2020.
4.	The matter is to return to the Court on Friday 14th March 2020 at 9:30 am for Directions.
5.	Costs shall be in the cause.   
Ordered accordingly.
________________________________________________________________Alberic Lawyers: Lawyer for the Plaintiff 
L B Mamu, Public Solicitor: Lawyer for the 	Third Defendants