Akipe v Manau [2022] PGNC 578; N10127 (13 December 2022)

N10127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 40 OF 2022

HARI JOHN AKIPE AS MEMBER & CHAIRMAN OF THE HALEPURA CLAN OF BLOCK 1715, ANGORE PDL8, DAWA SAYAPE
First Plaintiff

AND
JOHN POI AS MEMBER OF & CHAIRMAN OF THE TOPE CLAN OF BLOCK 1715, ANGORE PDL8
Second Plaintiff

AND
HIMIYA JULA AS MEMBER & CHAIRMAN OF THE JULUMA CLAN OF BLOCK 1715, ANGORE PDL8.
Third Plaintiff

AND
PHILIP POKOPI AS MEMBER & CHAIRMAN OF THE TAPU YALO BLOCK 1715, ANGORE PDL8.
Fourth Plaintiff

AND
PETER MONDORO
Fifth Plaintiff

V

DAVID MANAU AS SECRETARY OF THE DEPARTMENT OF PETROLEUM
First Defendant

AND
HON KERENGA KUA AS MINISTER FOR PETROLEUM
Second Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2022: 06^th & 13^th December

PRACTICE & PROCEDURE – Judicial Review & Appeals – Joinder Application Order 5 Rule 8 – Whether sufficient interest to join –consolidation of proceeding – necessary for an effective determination of issues raised – material filed support joinder – balance discharged on probabilities – application granted – costs in the cause.

Cases Cited:

Papua New Guinean Cases
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944
Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674
Concord Pacific Ltd v Nen [2000] PGNC 34; N1981

Overseas Cases
Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA

Counsel:
M. Tumul, for Interested Party for Joinder
J. Nandape, for First to Fourth Plaintiffs

RULING

13^th December, 2022

1. MIVIRI, J: This is the ruling of the court on the notice of motion of the 29^th of November 2022, of the applicant David Hayabe as member of and Chairman of the Polopu Clan of Angore Well head Block 1715, to be joined as a party to this proceedings as the fourth defendant invoking the National Court Rules, “the rules” Order 5 rule 8 (1), Order 16 rule 13 (13) (1) to join the proceedings as a third defendant. Order 5 rule 8 (1) is in the following terms:
   

“Joinder of parties generally. (8/2)

Two or more persons may be joined as plaintiffs or defendants in any proceedings—

(a) where—

(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court gives leave to do so.

2. The facts that have been submitted filed in support per the affidavit of David Hayabe dated the 29^th November 2022 Chairman of the Polopu Clan of the Hari Hilape Tribes located at Angore Well Head Block 1715, Undipu Council Ward in the Hayapuga Local Level Government Tari Pori District Hela Province support that he join the proceedings as fourth defendant in this proceedings. He is heavily involved in the matter as Chairman of the Polopu Clan including all other matters leading up to the court proceedings. His evidence is primary to the proceedings instituted and his joinder will be important to the settlement of the issues that have been raised in this cause of action. He is a person who is directly affected by the action and the decision that was challenged. It is pertinent that he be heard in defence of the matter for and on behalf of his clan and people. That in essence is his affidavit for joinder. His application for Joinder is appreciated and not opposed by the plaintiffs. Evidence of this is also filed in court in the affidavit of Lawyer Mek Tumul sworn the 05^th December 2022 filed also on that date. Which confirms email correspondence confirming that there is no dispute to the joinder of the applicant.
   
3. I am satisfied that the applicant has met the test for Joinder of Parties given; (a) He has sufficient interest in the proceedings; and (b) his joinder as a party is necessary to ensure that all matters in the proceedings can be effectively and completely adjudicated upon, PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010).
   
4. The underlying rational is, "It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...It is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process.

In all cases of joinder, whether simply of causes of action or also parties, the Court retains the discretion to join or sever (if already joined) if the interests of justice demand so. .

There is generally much merit in joining all possible defendants to avoid bringing separate proceedings against each and failing against each. On a tactical level, if all possible defendants are joined, often each will tend to run a case designed to show that another defendant is liable. The rules also provide for alternative plaintiffs if there is some issue as to proper plaintiff. For example, in some commercial litigation it may not be certain which legal entity actually entered into a transaction, AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 (24 February 2000).” In my view this is applicable here on all fours and paves the way for all to contribute to the disposal of this matter.

5. There is no reason apparent or identifiable to deny the application. His application is made out and he is joined as the fourth defendant to this proceedings and the defendants will be added with his name as the fourth defendant.
   
6. Leave is also granted for the reasons in law set out above in the case of the applicant Pai Wasa chairman of the group Pai Nanai as fifth defendant in the proceedings. His name also appears on the Final Court Annexed Mediation Report for Angore PDL8 prepared by the Department of Justice & Attorney General attached to its letter dated the 04^th March 2022 addressed to the Secretary Department of Petroleum P. O. Box 1993 Port Moresby. Which attaches the subject under hand of the accredited mediator Mark Pupaka together with the list of confirmed Clans PDL 8 Angore Block 1715. All are attached to the affidavit of Thomas Tambo filed the 1^st October 2022 annexure “B”. His joinder is not opposed by the plaintiffs and the other parties. All concede that his joinder is necessary to expedite the issues raised and he is also seriously affected by the decision taken now challenged in this proceeding. And his joinder will settle the issues raised to reach finality in the matter.
   
7. Accordingly leave is granted for the applicant Pai Wasa chairman of the group Pai Nanai as fifth defendant in the proceedings and the proceedings will be amended accordingly to read.
   
8. Further the trial date set of the 08^th February 2023 is vacated in the light of the fact that there are two additional defendants added to the proceedings. Because there will be need by all parties on either side of the proceedings now to file further affidavits and affidavits in response. And also, settlement of the Statement of Agreed and Disputed Facts and Issues for trial and to file the Review Book. And these steps be settled before the trial date is settled.
   
9. Costs has been argued by both sides and it is a discretionary matter for the Court. The facts must warrant here is an uncontested application on joinder which has led successfully to leave for joinder granted the two applicants. Application filed by motion has not been disputed and evidenced out by the exchange of email between counsel that has materialized in Court today. The affidavit of Mek Tumul of Counsel is self-explained and does not take the matter to the lengths argued. It means effectively what has been spent has not gone to the extreme by defence let alone the plaintiffs and arguments to justify joinder. This is not a case where one is at fault and must bear responsibility for the costs that have flowed, Karingu v Papua New Guinea Law Society [2001] PGSC 10; SC674 (9 November 2001) approved and endorsed Concord Pacific Ltd v Nen [2000] PGNC 34; N1981 (31 July 2000). That is not the situation here. Accordingly, the facts and circumstances do not warrant that costs be awarded as argued but will be in the cause.
   
10. Given these facts it is proper that the matter will be adjourned to the next directions date Monday 06^th of February 2023 at 9.30am for further directions.
    
11. Between now and that date leave is granted all parties to file further affidavits and responding affidavits. No time is given to effect this. Matter is adjourned to the next directions date and time as set out above.
    
12. For the reasons set out above cost will be in the cause.
    
13. Accordingly, the formal orders of the Court are:
    
    • (i) The notice of motion of the applicant David Hayabe is granted as pleaded.
      
    • (ii) Leave is granted David Hayabe Chairman of the Polopu Clan of the Hari Hilape Tribes located at Angore Well Head Block 1715, as fourth Defendant to the Proceedings.
      
    • (iii) Further Leave is granted Pai Wasa chairman of the group Pai Nanai as fifth defendant in the proceedings.
      
    • (iv) The parties are granted liberty to file further affidavits and affidavits responding by and before the next directions date Monday 06^th February 2023.
      
    • (v) The Matter is adjourned to the directions Monday 06^th February 2023 at 9.30am for further directions.
      
    • (vi) Costs will be in the cause.

Orders Accordingly.

__________________________________________________________________

Nandape & Associate Lawyers: Lawyer for the Plaintiff/Applicant

Chillion Lawyers: Lawyer for the Applicant/Defendant