Yawing v Kerro [2023] PGNC 248; N10415 (20 July 2023)

N10415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 112 OF 2022

BETWEEN:
MALATABI KEITH YAWING acting in his personal capacity & duly authorized representative of 58 villagers of Wagang village consisting of Wards 6 & 7 Aihi Local Level Government, Lae District, Morobe Province
First Plaintiff

AND
GRACE KERRO Acting in her personal capacity and duly authorized representative of 31 villagers of Yanga Village, Ward 7 Ahi Local Level Government, Lae District, Morobe Province
Second Plaintiff

AND
PUBLIC SERVICE COMMISSION
Third Plaintiff

AND:
GUNTHER JOKU AS MANAGING DIRECTOR OF CONSERVATION & ENVIROMENT PROTECTION AUTHORITY
First Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 19^th & 20^th July

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 12 Rule 8 (4) NCR – Application for Variation – Leave Granted for Judicial Review – Orders Consolidating Related Proceedings – Materials Relied Insufficient – Facts Circumstances Related – Administrative Orders Not Substantive – Application Denied – Cost Follow Event.

Cases Cited:

Rimua v Ekanda [2011] PGSC 12; SC1094
Barrick (Niugini) Ltd [2020] PGNC 376; N8652
Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 1) [1974] PNGLR 106
Cronan v Cronan and Walters [1978] PNGLR 207
Ekepe v Gaupe [2004] PGNC 82; N2694

Counsel:

J. Liskia, for Plaintiff
J. Wohuinangu, for First and Second Defendants

RULING

20^th July, 2023

1. MIVIRI, J: This is the ruling on the plaintiff’s application for variation of the orders of this Court made on the 26^th April 2023 in the following terms:
   
   • (i) Leave is granted for a review of the Decision the subject of the application.
   • (ii) This matter will be dealt together with OS (JR) 35 of 2020 which is the subject of pending Supreme Court appeal on the stay granted by this Court.
   • (iii) In the meantime, the Court encourages parties to talk it through and address the very science related issues or the technical issues on environment and damage to be resolved through the engagement of appropriately qualified experts who are independent and can help both the Developer, the landowners, the Morobe Provincial Government, and the State.
   • (iv) Since OS (JR) 35 of 2020 is stayed, this proceeding will await a lifting of the stay order and the matter will come back for directions as to further progressing and conclusion of the matter.
   • (v) Time for entry of the orders is abridged.
     
2. He motions that Pursuant to Order 12 Rule 8 (4) of the National Court Rules, term 2 of the Court Order of 26^th April 2023 is varied so that the matter will be dealt with separately from OS (JR) 35 of 2020. Secondly that pursuant to Order 12 Rule 8 (4) of the National Court Rules, term 4 of the Court Order of 26^th April 2023 is varied, so that the matter will proceed for further directions to progress and conclude the matter.
   
3. This is an administrative decision formulated by the Court into Directions and orders to efficiently and diligently deal with a case so that justice is delivered all in that case or related cases as one case. In so doing the Court is mindful that convenience will not defeat the dictate of the law. And in making the decision to compound as here it is not breaching the law to give credence to its convenience. But that all considered it is the best option in law considering all for and against. And the result is the decision as is the case here to expedite proceedings are made after consideration of what the parties to the proceedings have placed before the Court. And after seeing out the general scheme in the proceedings both for and against based on the material filed in it. This is not necessarily the substantive decision in the matter. It is not the heart of the dispute. And any motion to vary as is sought here must not lead to chasing the tail by the head so that the end to the dispute is never in sight. The effect is to procrastinate a dispute unnecessarily. Interlocutory and collateral issue must be avoided, and the dispute confined to what is the source originating to see the Justice that flows from there. It is not necessarily what is underpinning the dispute on either side of the dispute. But it is steps administratively, directions of the court, set out to see out the Justice of the matter viewing both intertwined interlinked by their facts the parties and the law. It is right that they be tried together.
   
4. For instance, order (iii) to deal this present matter together with OS (JR) 35 of 2020. In my view there is some real prospect of the matter coming to a final decision on a common ground to both matters. The Court has not made orders that would bring matters separate conflicting heads in their facts, in the law applicable together as one to be dealt with together. Disputes that have arisen of their own accord not related in any way to each other to be pulled together alongside each other. In my view it would not be proper for the court to bring such cases separate together. Which is not the case here by the orders this Court has made.
   
5. The variation sought against the original orders, in particular order (iii) and (iv) have no basis demonstrated by the affidavit relied of Lawyer Jackson Liskia. Both matters are related matters digging out the same issues interrelated by the facts and evidence relied. That is clear from the Statement pursuant to Order 16 Rule 3 (2) annexure “JL-8” OS (JR) 35 of 2021, and “JL-9” Statement Order 16 Rule 3 (2), OS (JR) 112 of 2022. The same way in and out in the law is argued and maintained. That is why when leave was granted the orders following were made in that manner. They are to expedite the proceedings with due dispatch. They do not bring harm to the proceedings in the way set out and ordered. There is no change of circumstances that warrant that the original orders made be varied to accommodate the new change in circumstances: Rimua v Ekanda [2011] PGSC 12; SC1094 (19 April 2011). Applications to vary court orders are made because the material will support that fact because there is a change in circumstances from the initial when the order was made. And the orders will give effect to expedite the matter as it is now made: Barrick (Niugini) Ltd [2020] PGNC 376; N8652 (5 August 2020).
   
6. This is not a case where there are two distinct causes of actions and therefore the variation must be allowed given: Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 1) [1974] PNGLR 106. Here it was same plaintiff and defendant but raising distinct causes of action, so it was not res judicata or issue estoppel. In my view that is not the case hence the orders made at first instance. That situation remains the same without any substantial change after the initial order made warranting it to be varied to accommodate Cronan v Cronan and Walters [1978] PNGLR 207. The material relied on is insufficient to vary the initial order made. This is leave granted to eventually arguing the substantive notice of motion for Judicial review. That order by itself concludes that stage of the proceedings. It is not likened to an interim injunction as in Ekepe v Gaupe [2004] PGNC 82; N2694 (13 October 2004). Therefore, the consideration there are in inappropriate and do not apply to the present set of facts and circumstances. And the material relied on do not entail that variation to the orders be granted as applied. Rather the contrary as the balance does not sustain. The application is refused with costs.
   
7. The formal orders of the court are:
   
   • (1) Application for Stay is not on the record of the proceedings.
   • (2) Application will not be granted.
   • (3) Costs will follow the event.
     

Orders Accordingly.
__________________________________________________________________
CELCOR Inc : Lawyer for the Plaintiff/Applicant
Office of the Solicitor General : Lawyer for the First & Second Defendants