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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No. 3 OF 2006
KENN NORAE MONDIAI
First Appellant
AND
PNG ECO FORESTRY FORUM INC
Second Appellant
AND
WAWOI GUAVI TIMBER CO LTD
First Respondent
AND
PAPUA NEW GUINEA FOREST AUTHORITY
Second Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent
Waigani: Kapi C. J., Davani & Lay JJ.
2006: 27 June
2007: 17 October
SUPREME COURT RULES -Order 10 Appeal- Objection to competency – whether any provision for
SUPREME COURT RULES ORDER 11 R11 – adding appellant after 40 days – whether rule constrained by Supreme Court Act s17.
PRACTICE AND PROCEDURES – whether leave required for person not a party to appeal
LOCUS STANDI – meaning of "sufficient interest" National Court Rules 016 r.3(5).
Cases Cited
Papua New Guinea Cases
Jeffrey Balakau v. Ombudsman Commission of Papua New Guinea [1996] PNGLR 346
Kitogara Holdings Pty. Limited v National Capital District Interim Commission and others [1988-89] PNGLR 346
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Dinge Damana v The State [1991] PNGLR 144
SCM No. 6 Yanta Development Association and others v Piu Land Group Inc & Ors 8 March 2005 (Supreme Court, unnumbered, unreported)
Van der Kreek v Van der Kreek [1979] PNGLR 185
State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448
Patterson Lowa v Wapala Akipe & Ors [1991] PNGLR 112
SC795 Gregory Manda v Yatala Ltd
Haiveta v Wingti (No.1) [1994] PNGLR 160
Emas Estate Development Pty Ltd v Mea & Ors [1993] PNGLR 215
Dillingham v Díaz [1975] PNGLR 262
In re Petition of M. T. Somare [1981] PNGLR 265
Ombudsman Commission v Donohue [1985] PNGLR 348
Overseas Cases
Cuthbertson v Hobart Corporation [1921] HCA 51; (1921) 30 CLR 16
Halabi v Westpac Banking corporation (1989) 17 NSWLR 26
In re Securities Insurance Company [1894] UKLawRpCh 68; [1894] 2 Ch 410
British Launderers Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21
R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1981] UKHL 2; [1982] AC 617 (House of Lords)
R v Inland Revenue Commissioners; Ex parte National Federation of self-employed And Small Businesses Limited (1980)Q.B.407 (Court of Appeal)
Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493
Onus v Alcoa of Australia [1981] HCA 50; (1982) 149 CLR 27
Environmental Defence Society Inc v South Pacific Aluminum Ltd (No. 3) [1981] 1 NZLR 216
Environmental Defence Society Inc v South Pacific Aluminum Ltd (No. 4) [1981] 1 NZLR 53
In Regina v. Horsham Justices ex parte Farquharson and another [1982] Q.B. 762
Facts
Held
Counsel
T. Nonggor with J. Holingu, for the First and Second Appellants
I. R. Molloy with J. Shepherd, for the First Respondent
R. Pato with J. Haiara, for the Second and Third Respondents
M. Cooke QC with M. Boni, for the Applicant Intervenor.
1. BY THE COURT: The First and Second Respondents have filed objection to the competency of the appeal and John Danaiya has applied to be joined as an appellant. Other applications were also filed which were stood over to be heard by a single judge.
2. We note at the outset that no leave has been sought or granted to adduce fresh evidence on the appeal and the evidence filed in support of the applications is not evidence on the appeal.
3. Secondly the Respondents dispute the truth of the relevant inferences of fact to be drawn from the evidence filed by the First and Second Appellants, although the Respondents have not at this stage filed evidence in rebuttal.
4. The background of the matter is that on 23 March, 1990, the First Respondent submitted an application to the Second Respondent for the Kamula Doso timber rights area in the Western Province to be awarded to it as a geographical extension to its existing timber permit for the Wawoi Guavi project.
5. The Kamula Doso timber rights area comprises three blocks of forest covering a total area of 791,000 ha, almost twice the size of the existing Wawoi Guavi Project. Block three of the Wawoi Guavi project has a common boundary with Block three of Kamula Doso. The balance of the two concessions are separated geographically by the Makapa logging project which is operated by an unrelated company.
6. At meeting No. 54 on 4 February, 1999, the National Forest Board resolved that the Kamula Doso Forest Management Area be an extension of the existing Wawoi Guavi timber project and directed the Managing Director of the Second Respondent to proceed to act on the Board's decision in accordance with Section 64 (3) of the Forestry Act.
7. The allocation of Kamula Doso lay in abeyance for some years. Then in October 2004 the First Respondent commenced proceedings OS No. 557 of 2004 seeking judicial review and mandamus orders to force the Second Respondent to implement its 4 February 1999 decision for the grant of Kamula Doso as a geographical extension of the Wawoi Guavi permit.
8. On the 20 December, 2005, the National Forest Board, the Board of the Second Respondent, resolved, inter alia, that:
I) pursuant to the resolution of Board Meeting No. 54 of 4th February 1999 Wawoi Guavi Timber Co. Ltd (WGTC) was "invited" to submit project proposals under Section 64 (3) (amended) of the Act.
II) the Board represented its intention to grant extension to Kamula Doso FMA in correspondences subsequent to 4th February 1999 resolution as confirming the invitation to the Developer.
III) WGTC submitted its application on account of forestry regulation form 92 on the 23rd of March 1999 pursuant to Section 64 (3) (amended) of the Act.
IV) resolved that by operation of law in accordance with section 63(1) of Interpretation Act chapter No. 2 the Board shall and does hereby determine and approve Wawoi Guavi Timber Co's (WGTC) application pursuant to Section 64 (3) (amended) and not Forestry Amendment Act, 2000.
V) Resolve that the Forestry Management Agreement (FMA) of October 1997 is valid and subsisting. However, the FMA has been rectified by the parties. The Minister for Forest shall be advised to sign the rectified FMA document.
VI) the legal proceedings numbered OS No. 557 of 2004;-
a. Be settled out of Court (in the light of the overwhelming legal advice not in favour of success); and
b. That an appropriate Deed of Settlement and Release with an appropriate court order in the form of duly agreed terms be executed;
c. No order as to costs; and
d. That the PNGFA lawyers be instructed accordingly.
VII) that the Board directs that the Acting Managing Director to negotiate and execute the terms of the Deed of Settlement and Release pursuant to resolution (VI) above.
9. On the 9 March, 2006, the Second Respondent by its Managing Director signed a deed of settlement with the First Respondent. That deed of settlement provided inter alia that the Second Respondent would " make no objection to an Order being made by the National Court of Justice of Papua New Guinea in terms of the draft Order which is annexed hereto and marked annexure 'A'."
10. The parties came before the Deputy Chief Justice Sir Salamo Injia on the same day that the deed of settlement was executed by the parties. His Honour asked the parties whether there were any other interested parties such as resource owners or landowners who might be affected and was informed that "the order is not an order compelling the Forestry Authority to make a decision. That decision has already been made and that decision was made after due advertising and process under the Forestry Act."
11. Consequently the court made the orders sought by the First Respondent without a hearing on the merits and without objection by the Second Respondent which was represented by counsel, inter alia in terms that:
"An order in the nature of mandamus is hereby granted requiring the Defendant to forthwith implement and give effect to the decision of the National Forest Board made at meeting No. 54 on 4 February 1999 that the Plaintiff be granted the Kamula Doso Forestry Management area in the Western Province as an extension to the Plaintiff's existing Timber Rights Permit No. 1-7."
11. John Danaiya, by his counsel says, he is the applicant to be joined, although his name was not mentioned in the form of the application.
12. John Danaiya was not served with the application brought before Injia DCJ and did not find out about the orders made until the 24 April, 2006. The application by John Danaiya to be joined as an appellant to the appeal was filed on 1 May 2006. The decision from which the appeal is brought was made on 9 March, 2006 and the order entered on 17 March, 2006.
13. The First Appellant is the Chairman of the Board of the Second Appellant and a member of the Board of the Second Respondent. He became a member of that Board by reason of the provisions of Forestry Act s.10(1)(f) which provided that the President or his nominee of the Second Appellant was appointed a member of the Board.
14. The Appellants did not seek to join the proceedings in the Court below because they say they believed, on the basis of advice tendered to the Board of the Second Respondent, that the proceedings would be discontinued with no orders being made in favour of the First Respondent. The First Appellant, through his membership of the Board of the Second Respondent was aware of the proceedings, was aware of the Board resolution of 17 December, 2005 and wrote to the Ombudsman Commission by letter dated 23 January, 2006 complaining that:
"Despite these findings (of the Ombudsman Commission) the National Forest board in Meeting 117 held 17th December 2005 resolved to approve the original decision to grant the Kamula Doso logging rights as an extension to the Wawoi Guavi Timber Permit...We wish to request your attention in this way as steps may be taken by the parties over the next few days to seek judicial recognition of the board’s decision."
15. The Second Appellant is an incorporated association formerly named in the Forestry Act s.10(1)(f) in the connection mentioned above (in par 17). It was formed, amongst other things for the purpose of encouraging Eco Forestry.
16. The major allegations of illegal conduct made by the Appellants against the Second Respondent are that:
17. It has proceeded to deal with Kamula Doso for the purposes of allocating the Timber rights purchase area, when the Appellants contend there is no current National Forest Plan in accordance with the requirements of section 47 of the Forestry Act. And they say this because the plan which was prepared and submitted to Parliament in accordance with the requirements of section 48 of the Forestry Act was specifically for the years 1996 to 2001. It was purportedly extended by one year by the second Respondent on 9 December 2002. Another such extension was resolved to be approved by the Board in January 2004. The Appellants dispute the validity of the extensions. The Appellants say that there has been no National Forest Inventory as required by section 47 (2)(6) of the Forestry Act which would relate to the extended period or at all. The inventory, required by the Forestry Act, is the basis on which the annual permissible cut of Timber is calculated so that the harvesting can take place on a sustainable basis. It is a public document and is to be available to the public for sale within 30 days of being certified by the Board: See Regulation 69(5). The information contained in the National Forest Plan does not relate to any harvesting of forest products after 2001. Further the appellant's say Kamula Doso was never in the National Forest Plan. There is a plan which was prepared by the Second Respondent entitled National Forest Plan which does show Kamula Doso. The Parliamentary Library records indicate it is not the plan submitted to Parliament.
18. The significance of the National Forest Plan is that "Forest Resources shall only be developed in accordance with the National Forest Plan": section 54 of the Forestry Act.
19. Further the Appellants say Kamula Doso is large enough to be an independent concession, being almost twice the size of the existing Wawoi Guavi TRP area. The Second Respondent is therefore in breach of Forestry Act s.64(3)(e) by treating it as an addition to an existing permit.
The Application to Be Joined as an appellant
20. Counsel for the applicant submitted that the Applicant did not find out about the proceedings in the National court until the 24 April, 2006, consequently he could not comply with the 40 day requirement to lodge his appeal. If the Applicant must proceed by way of Constitution Section 155(2)(b) the application should be heard together with this appeal. The delay has been explained and there is a manifest injustice, the judge was not properly informed and the landowners are directly affected. And in reply, the Applicant's interest arises because there is only one TRP, the Applicant alleges it expired in 2002.
21. Counsel for the First Respondent submitted that the existing proceedings referred to by counsel for the Applicant relate to land in the existing TRP granted in 1992 and renewed in 2002. The Applicant comes from that area, he has no interest in the Kamula Doso area, the subject of the Order under appeal. He does not have sufficient interest to appeal. There is no provision under Order 10 of the Supreme Court Rules for the Applicant to be joined as an intervenor. And in reply, there is no suggestion that the Respondents are not going to fulfil the requirements of the Forestry Act.
22. Counsel for the Second and Third Respondents submitted that the Second Respondent was now up to step 14 in a series of 34 steps in the process of granting an extension to a TRP. The Board decision the subject of the Court Order appealed from, was simply for the First Respondent to apply for the extension. The landowners are not involved until steps 21 and 22. The Applicant comes from an area other than the extension area. He was not a party to OS 557/2004 but it is disputed that he was not aware of the proceedings. He was aware of the action but chose to ignore it. No finding relating to the Applicant’s standing was made in the National Court, therefore he is seeking a review of questions of fact and should seek leave, which he has not. He is outside the 40 days and has not given notice to the State pursuant to s.5 of the Claims by and Against the State Act (the latter point not being contained in the Notice of Objection.).
23. The Supreme Court Rules O.11 r.11 provide that:
"The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions."
24. The Supreme Court Act Section 17 provides that notice of appeal shall be given within 40 days after the date of the judgment in question. The Court has no power to hear a matter not commenced within that time: see for example, from a long line of authorities, Jeffrey Balakau V. Ombudsman Commission of Papua New Guinea [1996] PNGLR 346 (Amet C.J. Kapi DCJ and Los J.) and the cases there cited.
25. The power given under the Rules must be exercised subject to the provisions of the Act, in particular the provisions of Section 17. Section 17 operates so as to provide a right of appeal within 40 days of the decision to any "person" whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings: Kitogara Holdings Pty. Limited v National Capital District Interim Commission and others [1988-89] PNGLR 346.
26. An appellant cannot introduce a new matter in an appeal by way of amendment pursuant to O.11 r.11 outside the 40 days: Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 (Kapi DCJ, Sheehan J. and Brown J.) and see also Dinge Damana v The State [1991] PNGLR 144 (Kapi DCJ, Amet J and Woods J).
27. An appeal does not take on a life of its own independent from the appellant. It is always the appeal of the appellant. If a further person is added as an appellant to an existing appeal then that person institutes their appeal when they are joined. We therefore consider that a person cannot be added as an appellant to an appeal outside the 40 days allowed by s.17 for instituting an appeal. To do so would be to allow the additional party to institute an appeal outside the statutory time frame. We therefore reject the submission that the Rules do not require the addition of an appellant to be done within the 40 day time period for appeal.
28. The decision in SCM No. 6 (Yanta Development Association and others v Piu Land Group Inc & Ors) 8 March 2005, (unpublished and unnumbered decision of the Supreme Court, Los, Batari and Lenalia J. J.) referred to by counsel does not assist counsel's submission on this point. The decision does not address the issue of the time limitation. It is true that O.11 r.11 does not limit or require the addition of a party to be done within 40 days. We consider that in the case of the proposed addition of an appellant Supreme Court Act Section 17 limits the Rule.
29. During argument Counsel for the Applicant suggested that the Applicant could be added as a Respondent or that he could proceed by way of s.155(2)(b) of the Constitution. No application was made to amend the application. Our view is that the Supreme Court is not the place to be amending applications during argument. It is essential that all of the parties have notice of the precise application being made so that all relevant authority is drawn to the attention of the court. Where a party is caught by surprise by late amendment the danger is that injustice will be done to the party caught by surprise and the court will not be assisted as it should. In Van der Kreek v Van der Kreek [1979] PNGLR 185 (Prentice CJ, Pritchard and Andrew) the Court said:
"applications to add grounds of appeal in the course of an address in reply should not be entertained."
30. We consider that observation equally applicable to an invitation to treat an application as amended so as to include a relief not sought in the application, unless the other parties consent or the court is prepared to grant an adjournment to prevent prejudice to the other parties. We decline to do so in this case. The application before us was neither to join the applicant as a respondent nor to proceed by way of review.
31. For those reasons we refuse the application to be joined as an appellant made by John Danaya. Therefore it is not necessary to address the issue of standing in respect of the applicant.
Objection to Competency
32. It was submitted for the Appellant’s, and we agree, that the Supreme Court Rules contain no provision for a Respondent to a Motion of Appeal under Order 10 to file a Notice of Objection to the Competency of the Appeal. For that reason we would dismiss the Objections to Competency. They have no basis under the Supreme Court Rules. The point has not been previously taken and ruled upon. In the future objections to competency should not be filed in respect of Order 10 appeals.
33. It was also submitted for the Appellants that the Second and Third Respondents Notice of Objection and the First Respondent’s amended Notice of Objections were served out of time. If the Rules relating to Notice of Objection applied, which they do not, then the notice has to be both filed and served within 14 days after service of the notice of appeal.
34. The evidence of service shows that the Motion of Appeal was filed on 18 April, 2006 and served on all respondents on 19 April 2006. The First Respondent’s amended objection and the Second and Third Respondents objections were served on 8 May 2006, which is 5 days out of time. There is no power in the Court to extend the period of 14 days: State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448 approved in Patterson Lowa v Wapala Akipe & Ors [1991] PNGLR 112 and followed in SC795 Gregory Manda v Yatala Ltd and other cases. It was submitted for the Second and Third Respondents that some of the Appellants documents were late served, but there was no evidence of that before us. We would also therefore dismiss the First Respondent’s amended objections and the Second and Third Respondents objections on the ground that they are out of time if they could have been filed under the Rules.
35. However, as most of the grounds were fully argued we will express our views on them on the basis that the Court may raise and consider issues of competency at any time: Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and Haiveta v Wingti (No.1) [1994] PNGLR 160. In our view this principle applies to all matters before the Supreme Court and is not restricted to appeals pursuant to Order 7.
36. The Second and Third Respondents first ground of objection is that "the Appellants have no right to lodge an appeal against the order of 9 March, 2006 because they were not parties to the National Court proceedings as envisioned by Section 4(2) of the Supreme Court Act." That is quite clearly wrong and not the law-Section 17 of the Supreme Court Act gives a right of appeal to a non party: Kitogara Holdings vs NCDC [1988-89] PNGLR 346 per Kapi J. at 349 and Woods J at 351. The Second and Third Respondents written submissions sought to argue this ground as if it had been drafted in the same terms as ground 3 of the First Respondent's objections raising issues of mixed fact and law. It was not so drafted, it was not amended and as drafted it cannot stand. This ground is dismissed.
Whether Leave Required
37. There are four aspects to the question of whether leave to appeal is required and raised by the objections to competency. The first we deal with is whether leave is required because there is an unresolved issue of fact as to whether the appellants are persons with standing to appeal and the Supreme Court Act s.14(1)(c) requires leave to appeal on issues of fact. This is raised by ground 4 of the First Respondents amended notice of objection and ground 3 of the Second and Third Respondents grounds. It is submitted that the issue of standing of the Appellant to appeal involves questions of fact. We consider this submission can be shortly disposed of. There were no findings of fact in relation to the Appellants in the court below from which the appellants appeal, because they were not parties. That facts are to be found by this Court does not raise the issue addressed by Supreme Court Act s.14(1)(c). Therefore leave is not required by virtue of the provisions of this Section. Further, the question of standing must at least be a question of mixed fact and law for which leave is not required.
38. The second issue is whether leave is required as a rule of common law for a non party to appeal. This is raised by grounds 1 and 2 of the First Respondents amended notice of objection. Counsel for the First Respondent has referred to several case authorities as supporting the proposition that leave is required. The first was Kitogara Holdings v National Capital District Interim Commission & 4 Ors (supra). That case dealt with an application for a Constitution s.155(2)(b) review, not an Order 10 appeal. None of the members of the court mention a requirement for leave, although mention is made of threshold issues to be satisfied in such an application. At 349 Kapi DCJ, as he then was, discussed whether the appellant had a right of appeal. He referred to Cuthbertson v Hobart Corporation [1921] HCA 51; (1921) 30 CLR 16 at 23-25, High Court of Australia, for the proposition that even though not a party to the original proceedings a person may appeal against an order affecting their interests. Leave was granted in Cuthbertson v Hobart Corporation, then unsuccessfully challenged on the ground of the appellant’s lack of interest in the subject matter of the appeal. The case did not involve a consideration of whether or not leave was required, because as a matter of law it was. Leave is required for all appeals to the High Court of Australia: See comment of Sir Michael Kirby, President, (as he then was) in Halabi v Westpac Banking corporation (1989) 17 NSWLR 26 at 40-41. What was discussed, at 25 in Cuthbertson v Hobart Corporation, was the principles to be applied in deciding whether or not to grant leave. Reference was made to the practice in England where it was said "...a person not a party to the proceedings cannot appeal from an order or judgement except by leave of the Court" and the practice applied on such applications for leave was adopted and applied.
39. The next case relied on by the First Respondent was Emas Estate Development Pty Ltd v Mea & Ors [1993] PNGLR 215. There is passing reference in the judgment of Amet J(at 221) that leave had been sought to proceed and Brown J(at 225) said that "it was necessary for the present appellant to seek the court's leave to appeal since it had not been a party to the original claim by John Mea, which was heard by Los J. Leave was given on 28 September 1992". Whether or not leave was required was not argued before or decided by that Court. Those statements came about as part of a recital of the background leading up to the hearing of the appeal. That case is therefore not authority for the proposition that leave is required.
40. Finally, counsel referred to In re Securities Insurance Company [1894] UKLawRpCh 68; [1894] 2 Ch 410, 413 & 414. That was an appeal from the Chancery Division in the English High Court. Lindley LJ stated the rule in the Court of Chancery before and after 1862 to be "... a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave."
41. Parliament granted the right of appeal to the people of Papua New Guinea by the Supreme Court Act 1975. The Act provides in s.14 for the occasions when leave to appeal is required. We do not consider that there is any justification to further modify, cut down, or reduce that right by a common law rule. We consider such a rule could not have been adopted by Constitution schedule 2 .2, if it was it has been abolished, because the rule is inconsistent with the right of appeal contained in s.4, qualified only by s.14 and s.17, granted by the Supreme Court Act.
42. We conclude that the requirement for leave to be sought by a non party to appeal from a decision of the National Court is not the law of Papua New Guinea. Leave is not required to appeal solely because the appellant was not a party in the proceedings from which the appeal is brought.
43. Thirdly, the First Respondent's Notice of Objection to Competency (ground 5) also asserts that the Appellants raise issues of fact in their Motion of Appeal. An appeal on issues of fact lies only with leave: Supreme Court Act s.14(1)(c). The Second and Third Respondents take the same point (ground 2 of their objection) and their written submissions include detailed comments on each ground. We do not consider that any purpose would be served by addressing each ground of the appeal. It is sufficient for us to say that we have considered each of the grounds 3.1 to 3.8 and 3.14 to 3.18 specifically referred to in the written submissions of the Second and Third Respondents and in our opinion each of these grounds raises either a question of law or a question of mixed fact and law. None of the grounds raises an issue which could be determined by a person without legal training, which is a simple paraphrase of the test laid down by Lord Denning in the British Launderers Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21 at 25 cited by this Court in Dillingham v Díaz [1975] PNGLR 262 at 269 and many other cases since. That ground of objection fails.
44. Fourthly and finally on the leave issue, the First Respondent’s Notice of Objection to Competency (Ground 6) asserts that the grounds of appeal relied upon call into issue questions determined at the time that leave to apply for judicial review was granted. The grant of leave was an interlocutory order and made more than 40 days prior to the filing of Notice of Appeal. It is argued that leave was not sought and the appellants are out of time now to institute an application for leave.
45. We do not consider that this ground can succeed. It is well settled that, apart from the grant of leave itself, nothing is finally determined on the application for leave. All issues are open and only finally determined on the substantive hearing of the judicial review.
"On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O16 rr2,3 and 5. The application, of course, is ex parte and the Court does not have any other material contesting the application. The Court is not required to address the matter specified in O16 r1(2). These are matters for consideration by the Court hearing the substantive application". Ombudsman Commission v Donohue [1985] PNGLR 348 at 361 Amet J.
46. Even questions concerning standing to apply for judicial review, which must be decided in a preliminary way on the application for leave, are not finally decided until the substantive hearing. It is preferable to lean towards recognizing the standing of the applicant on the application for leave and to let the issue be finally determined on the substantive hearing, except in cases where it is very clear that the applicant does not have standing: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1980] 2 All E.R. 378 at 642-644.
47. It is quite clear from the Motion of Appeal that the Appellants appeal from the decision made on the substantive application. We cannot accept the submission that because the appeal particularises matters which may have been decided in a preliminary way on the leave application, necessarily the appeal is from the leave application and not the substantive proceeding. As we said earlier nothing is finally decided on the application for leave, apart from the grant of leave. If it were otherwise there would clearly be a grave injustice because matters would be finally decided in the absence of some of the parties and also possibly before the plaintiff had brought all of its evidence before the court. This ground also fails.
48. The objections to competency also challenged the standing of the appellants to bring the appeal (First Respondent's ground 3, Second and Third Respondents ground 2). The question is whether the Appellants are aggrieved by the order and could have been made parties to the proceedings in the National Court. We consider that this issue can be determined by an examination of whether they have sufficient interest (National Court Rules O.16 r.3 (5) or whether they are "proper persons to be heard" (016 r.9 (1) or persons directly affected: See Yanta v Piu SC798.
49. In re Petition of M. T. Somare [1981] PNGLR 265, referred to by the parties, was concerned with standing to invoke the Supreme Court's power of constitutional interpretation under Constitution section 19. The members of the Court discuss at some length the state of the common law on standing at Independence and before the current National Court Rules came into force. Much of what was said leading to the conclusion by Kapi J. as he then was, that there should be a new rule being "... that the applicant must have sufficient interest in the matter" has been overtaken by the introduction of the National Court Rules in 1983 including the provision in O.16 r.3(5) that:
"The Court shall not grant leave unless it considers the applicant has sufficient interest in the matter to which the application relates."
50. Having introduced our own Rule on standing it is no longer relevant to look back at the common law at 16 September 1975 or to be concerned with such matters as the earlier common law distinction between Relator actions brought by the Attorney General and private actions, on this issue of locus standi.
51. We can turn our attention to the question of the meaning of "sufficient interest" without looking back to the case law before the introduction of the Rule.
"... any person who 'is a person aggrieved' by the failure of a public authority to do its duty has sufficient interest."
53. And at 422
"On this review of the authorities I would endorse the general principle stated by Professor H. W. Wade QC in his Administrative Law, 4th edition (1977) page 608. He says:
'it [the law] should recognise 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 interest than a regard for the due observance of the law.'
"Those words were written in relation to mandamus but they apply also to the other prerogative orders of certiorari or prohibition. They apply also nowadays to declarations and injunctions-where these are sought in situations which are comparable to the prerogative orders, that is, against public authorities who are acting unlawfully."
54. The High Court refused leave. The appeal was allowed in the Court of Appeal (1980) QB 407 and leave granted. In the House of Lords ([1982] AC 617) it was held the grant of leave was correct. However the appeal was allowed and the action dismissed. All of the law Lords were of the opinion that in the High Court on the substantive hearing and in the Court of Appeal a wrong course had been taken in considering the issue of "sufficient interest" as a preliminary and isolated question. The House of Lords was of the opinion that the whole of the evidence before the court should have been examined to determine what public duty the Revenue Commissioners owed and what was the nature of the breach of that duty upon which the applicant relied. Examining the evidence from that standpoint their lordships were of the opinion that the relevant legislation gave a wide discretion to the Commissioners in the management of revenue collection. The breaches complained of by the Federation fell into the area of administration and managerial decisions rather than lawful duty. Judicial review is not available to correct what the applicant may think to be an incorrect administrative decision as distinct from an unlawful decision. Lord Diplock considered that two questions should have been asked on the substantive hearing (1) what was the public duty in respect of which the Board was alleged to be in breach and (2) what was the nature of the breach relied upon by the applicant. And he went on to say "These questions need to be answered before it is possible to say whether the Federation has a sufficient interest." Lord Wilberforce expressed himself similarly and said "The question of sufficient interest cannot be considered in the abstract." Lord Fraser agreed that an examination of the statutory scheme on the substantive hearing would have shown that the applicant did not have sufficient interest. Lord Scarman said "The sufficiency of the applicant’s interest has to be judged in relation to the subject matter of the application." Lord Roskill, whilst not entirely agreeing with Denning MR’s formulation in the Court of Appeal found that once a body was admitted to be a public body with a public duty there is jurisdiction to grant judicial review. The court must not cross the boundary between administration, good or bad, and unlawful conduct. He agreed with the reasons of Lords Wilberforce and Fraser.
55. The House of Lords has therefore placed emphasis on the need to discover whether the body against which relief is sought is a public body, whether it has public duties and what is the nature of the alleged breaches of those duties. Are they duties in law or managerial or administrative decisions taken within a lawful discretion. There must also be an examination of the relationship of the party complaining to the duty allegedly breached.
56. Whether a member of an interest group or pressure group or the group itself can have sufficient interest has been the subject of litigation in a number of jurisdictions. Counsel for the First Respondent cited the Australian High Court decision in Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493. It is noteworthy that the case was decided prior to the publication of the reasons of the House of Lords in the R v Internal Revenue Commissioners: Ex Parte National Federation of Self-Employed and Small Businesses Limited. The Australian Conservation Foundation case involved an attempt to challenge approval of a development proposal or the foreign currency exchange transaction related to it; and to force the Minister to comply with administrative directions promulgated by the Governor General under the relevant Act. The Appellant was a large organisation concerned with conservation of natural resources throughout Australia. The application first came before a single judge of the High Court, Aickin J, who found that the administrative procedures under the Act which the appellant sought to enforce did not give a right of enforcement to private citizens, that they were entirely in the control of the executive government and did not have the force of law. On appeal Gibbs J agreed with that point (p.524). And in formulating a statement of the law as he saw it he said (p.526):
12. It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest (in the subject matter of the action) is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.
57. Stephens J said:
an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it
58. The High Court, or at least Gibbs CJ had not moved to the position of the law in England and still considered Relator actions by the Attorney General an answer to righting of public law wrongs. Later in Onus v Alcoa of Australia [1981] HCA 50; (1982) 149 CLR 27 Gibbs C J. said that the principle applied in Australian Conservation Foundation Inc was (at 36):
" A plaintiff has no right to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question of what is sufficient interest will vary according to the nature of the subject matter of the litigation."
59. Onus v Alcoa involved two private citizens, members of an aboriginal community, bringing an action for the purpose of restraining Alcoa from breaking the criminal law by acting in contravention of s.21 of the Relics Act. The plaintiffs could not show any right of their own had been infringed but the relics concerned were of cultural and spiritual significance for their community. Mason J. distinguished the Australian Conservation Case (at 43):
" As other members of the Court have shown this case is clearly distinguishable from Australian Conservation Foundation Inc v The Commonwealth (reference provided ). The relics here have great cultural and spiritual significance for the Gournditch-jmara community. The members of that community are the guardians of the relics according to their laws and customs and they use the relics. I agree with Gibbs C. J. in thinking that in these circumstances the appellants have a special interest in the preservation of the relics, sufficient to support locus standi."
60. Stephen J. said at 41-42:
"... I do not regard the existing state of the law to be that the possession of intellectual or emotional concern is any disqualification from standing to sue. On the contrary, it will be but rarely that a person having a special interest in the subject matter of the action which he has instituted does not also possess at least a strong intellectual and perhaps also a strong emotional concern with that subject matter. What is more, the absence of a mere material interest in that subject matter, in the sense of property or possessory rights, will not, as the law now stands, be in itself any bar to standing; this the present case attests.
Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of "special interest" applies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of the plaintiff's relationship to that subject matter..."
61. The Australian Conservation Case can be said to have failed for the same or similar reasons to the R v Inland Revenue commissioners: Ex parte Federation of Self Employed and Small Businesses Limited case failed in the House of Lords. The breaches complained of were decisions which fell into areas of administrative discretion rather than statutory duty. It does seem that in Onus v Alcoa the High Court of Australia expressed itself in language much closer to the English position than it did in the Australian Conservation case.
62. Counsel for the Appellants has referred us to three decisions of the New Zealand Court of Appeal. The first case Environmental Defence Society Inc v South Pacific Aluminum Ltd (No. 3) [1981] 1 NZLR 216 involved an appeal by two societies, one concerned generally with environmental issues and the second with environmental issues specifically concerning birdlife. The litigation concerned the Respondent's request for expedited consents to progress a development. Under the National Development Act the Governor General-in-Council had to consider whether it was "essential" that the decision be made promptly. The Appellants contended that the decision by the Governor General- in-Council had not been lawfully made. Whilst refusing the substantive appeal on its merits, the Court of Appeal held that, at least for the purposes of the particular Act, the two societies had sufficient standing and interest to bring the proceedings. The court cited with approval from the speech of Lord Diplock in the House of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Limited [1981] UKHL 2; [1982] AC 617 [1981] 2 All ER 93; [1981] 2 WLR 722 at pages 104 or 737 and 107 or 740 of the respective reports:
"I agree in substance with what Lord Denning MR there said, although in language more eloquent than it would be my normal style to use ([1976] 3 All ER 184 at 192, [1976] 1 WLR 550 at 559):
' I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.'
"The reference here is to flagrant and serious breaches of the law by persons in authority exercising governmental functions which are continuing unchecked. To revert to technical restrictions on locus standi to prevent this, that were current 30 years ago or more would be to reverse that progress towards a comprehensive system of administrative law that I regard as having been the greatest achievement of the English courts in my judicial lifetime.
"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of the central government, in practice never does so against government departments. It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge."
63. The second New Zealand case is Environmental Defence Society Inc v South Pacific Aluminium Ltd (No. 4) [1981] 1 NZLR 53. This was a proceeding brought to the Court of Appeal directly, pursuant to provisions of the National Development Act. The developer was required to produce and submit an environmental impact report, which was then to be audited by the Environment Commissioner. The Society contended that the report prepared was so deficient it could not be regarded as a report for the purposes of the Act. Woodhouse P for the court said (at 10-11):
"" At this point a second question of a preliminary kind should be mentioned. On behalf of South Pacific and the Harbour Board it is submitted that even if their environmental report is deficient, an individual member of the public has no right of action concerning the matter. Any remedy, it is said, will be in the ensuing audit by the Commissioner; and a defective report might expect to be so categorised by him. No doubt that could well happen. But the submission, which really goes to the standing of the Society to bring its proceedings, needs to be assessed against the plain intention of the legislation that members of the public will have an early and sufficient opportunity of informing themselves about proposed works and the implication for the environment. A report that was wholly deficient would not even begin to do that, whatever the Commissioner might say about it; moreover he himself might well lose the opportunity of weighing public submissions that could have a useful influence upon his own audit of the project. We are satisfied that the Society is a responsible environmental organisation and so has standing accordingly. "
64. Both those cases could be said to be authority for the proposition that when an Act of the Parliament concerns itself with a particular subject matter, and with the opportunity for public comment about that subject matter, a body established for the purpose of concerning itself with that subject matter, has sufficient interest to contest allegations of unlawful conduct arising under the Act.
65. The last New Zealand case is Consumers Cooperative Society (Manawalu) Ltd v Palmerston South City Council [1984] 1 NZLR 1. The council had acquired land which was now excess to its requirements and which it proposed to sell to a food retail chain by private contract. The Appellant operated two supermarkets in the area. The Public Works Act provided, subject to various conditions, that the Council "shall offer to sell the land by private contract to the persons from whom it was acquired or the successor of that person" or to "an owner of adjacent land..." or if the offer was not accepted in 40 days "cause the land to be offered for sale by public auction...". The Appellants complaint was that the Councils' proposal to sell by private contract to a party who was not the former owner or its successor was a breach of the Act. In the court below the trial judge had held that as the purpose of the legislation was to alleviate the hardship of those who had their land taken for public purposes and not to protect the business interests of the public, the plaintiff had no standing.
66. The Court of Appeal held that the Appellant had sufficient interest as an adjoining land owner or as a potential bidder at public auction, if the original owner did not accept the statutory offer to buy. The circumstances were different to the appeal here under consideration because in that case the appellant had a commercial interest in ensuring that the land was disposed of according to law as that would give the appellant an opportunity to negotiate or bid for purchase of the land.
67. The last case cited by the Appellants is In Regina v. Horsham Justices ex parte Farquharson and another [1982] Q.B. 762 the magistrates barred journalists from reporting the proceedings of a court case. The journalists enlisted the aid of their union and sought judicial review of the order. The Court of Appeal held the union was entitled to come to court to see if the magistrates were empowered to make the order, which was made pursuant to the provisions of an Act. The Court of Appeal there also citing the words of Lord Diplock from R v Inland Revenue Commissioners; ex parte National Federation of self-Employed and Small Business Ltd [1981] UKHL 2; [1981] 2 WLR 722, 740 cited by the New Zealand Court of Appeal in Environmental Defence Society Inc. v South Pacific Aluminium (No. 3) (supra) and set out above (at par. 67). In that case the Union and its members had an interest in the rights of free speech and the freedom of the press and the legislation in question empowered the magistrates to restrict those rights.
68. Both in England and in New Zealand the courts have rejected the notion that some authority to test the lawfulness of actions of public authorities rests solely with the Attorney General by a Relator action. In Onus v Alcoa the High Court of Australia also seemed to be moving away from that view. And we would adopt the same position. It is unrealistic in this day to expect an officer of the executive government to mount legal challenges to the departments and authorities of government.
69. From the cited cases we formulate the following questions to test whether the Appellants have "sufficient interest" to be a party to the proceedings in the National Court.
▪Is the party complained of a public body?
▪Does it have duties to perform at law, ie statutory duties?
▪What is the nature of the alleged breach of duty, are they duties in law or do they fall within managerial or administrative guidelines for decisions to be taken within a lawful discretion?
▪What is the Appellants relationship to the subject matter of the duty alleged to have been breached?
▪Is the party bringing the complain genuinely concerned or a mere busybody?
▪Does the complainant point to some duty in law which objectively has (on a leave application, arguably) not been observed?
70. In this case we consider there can be no argument against the proposition that the Second Respondent is a public body. It is a statutory corporation created by Act of the Parliament to perform the public function of regulating the forestry industry.
71. The Second Respondent has a clear statutory duty to prepare a National Forest Plan and to review it (Forestry Act s7(1)(b)) s47 based on a "certified National Forest Inventory" which complies with the requirements of Regulation 69 of the Forestry Regulation 1998 and to develop forest resources in accordance with that plan: s.54. The plan is to be approved by the National Executive Council and tabled in Parliament. These are public duties at law. The Act is framed in mandatory terms in relation to these duties. There is no discretion in the Second Respondent not to prepare the plan or to allocate forestry resources in some way which is not in accordance with the National Forest Plan. Because the preparation of a National Forest Plan is included in the Forestry Act as a function of the Second Respondent in s.7 which deals with the functions of the Second Respondent as well as in greater detail as to what the Plan shall contain in s.47, preparation of the National Forest Plan could be described as a core function of the Second Respondent. The responsibility for carrying out the statutory functions of the Second Respondent falls on its Board: s9.
72. Further statutory obligations which the Appellants allege the Second Respondent is in breach of, is the duty of the Board to come to the opinion that the subject timber rights are too small to operate as a commercially sustainable forest development project (s.64(3)(e); and if the Board came to the opinion that Kamula Doso complied with s.64(3) to invite "all timber permit holders whose timber permit operations are contiguous to the forest development project...to make proposals in respect to the forest development project":s.64(4). As Kamula Doso is almost twice the size of the First Respondent's existing TRP area, it is obviously arguable that the Board of the Second Respondent could not have come to the conclusion in accordance with Section 64 (3) (e) "that the area is too small to operate as a commercially sustainable forest development project."
73. Now it is implicit in the Second Respondent’s decision of 20 December 2005 set out at paragraph 20 that the First Respondent had acquired rights under the Forestry Act prior to the amendment which introduced s.64(3)(e) and that those rights are preserved by the provisions of the Interpretation Act s.63(1). That proposition has not been argued and is not before us. At the present time we are in the same position as a judge at first instance considering a leave application. We have no evidence rebutting the evidence filed by the Appellants to the effect that there is no National Forest Plan which includes Kamula Doso, nor has there been a National Forest Inventory which complies with Forestry Regulation s.69, and decisions have been taken contrary to the provisions of Forestry Act s.64(3) and (4). On the material currently before us it can be said that there is an arguable case that there are serious breaches of those statutory duties imposed on the Second Respondent and its Board.
74. The Appellants say that the Second Respondent has not carried out its lawful public duties. The nature of the alleged breaches then is an allegation of a direct breach of what is, in respect of the National Forest Plan, prima facie a mandatory statutory duty and in respect of the other allegations breaches of statutory provisions not carrying with them discretions of a managerial or administrative nature.
75. Neither appellant has a pecuniary or proprietary or possessory interest in the outcome of the proceedings. Neither is a landowner or resident of Kamula Doso, nor can they point to any personal right which is being infringed by the Respondents. However, the First Appellant is closely concerned with the conduct of the Second Respondent, as a director of that body. It is the Board of Directors who must ensure that a National Forest Plan is drawn up so that the Chairman can send it to the Minister: s48 with the transmittal form: Forestry Regulations s.70 and Form 68. It is the Board which must consider and examine Provincial Forest Plans before sending them to the Minister. It is the Board which must consult with customary owners: s.59. It is the Board which must arrange for a development options study before advertising a tender for a forest development project: s.62. The Board must advertise the project (s.64) unless it meets all of the conditions set out in s.64(3). And if the Board consider the project meets the conditions in s.64(3) it must invite "all timber permit holders whose operations are contiguous to the forest development project" to make project proposals.
76. The subject matter of the duties alleged to have been breached needs to be accurately identified. It is not possession of Kamula Doso but the lawful allocation of the timber rights for Kamula Doso. In our view both appellants are genuinely concerned about the allegations made. We consider that the First Appellant, who together with other Board members has these statutory duties in law, has a sufficient interest when he alleges that his fellow members of the Board are not carrying out their mandatory and other statutory duties.
77. The Second Appellant is an association concerned with issues concerning the forestry industry. Until recent amendments to the Forestry Act it was named in the Act as an organisation from which a member of the Board of the Second Respondent would come. We think that endorsement by Parliament establishes it as a bona fide and reputable interest group with a particular interest in the forestry industry, or as described in the Act "an effective and legitimate body representing eco-forestry interests": see s.10 (8) Forestry Act.. We consider that it has sufficient interest to have been a party to the original proceedings and is thus directly affected in a way which entitles it to bring this appeal because it is genuinely concerned with the alleged breach by the Second Respondent of its statutory duties in the management of the nations forestry assets.
78. Both Appellants could have been parties to the proceedings below and they are aggrieved by the decision, in that sense they are directly affected by the decision which affects the interests they hold in the proper administration of forestry law. We find this ground of objection fails.
79. In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.
80. We have thus far dealt with all of the grounds contained in the First Respondent’s Notice of Objection and grounds 1 and 2 of the Second and Third Respondents Notice of Objection. There are three remaining grounds in the Second and Third Respondents Notice, conflict of interest, laches and lack of good faith.
Conflict of Interest
81. This ground (Second and Third Respondents ground 3) alleges that the First Appellant, as a director of the Second Appellant and of the Second Respondent cannot challenge the decisions of the Second Respondent. No written or oral submissions were addressed on this issue by counsel for the Second and Third Respondents. Counsel for the First Respondent submitted that the First Appellant’s position constituted a breach of a fiduciary duty. In our opinion, the duty of a statutory Board and every member of the Board to carry out their statutory duties negates any fiduciary duty which might otherwise exist. A fiduciary duty might be raised when what the applicant challenges is an administrative decision. But we do not consider that a fiduciary duty can prevail against an allegation of unlawful conduct by a director of a public authority with public duties in law to perform. Equity cannot prevail against a statutory duty.
Laches, Delay and Lack of Good Faith
82. As we have set out in the facts the First Appellant knew of the decision of the Board on 17 December 2005 and wrote to the Ombudsman Commission regarding it on 23 January 2006 anticipating action by the Respondents to obtain legal sanction of the decision in the near future. The Second and Third Respondents cite Kitogara Holdings v NCDC [1988-89] PNGLR 346. In that case, with knowledge of the proceedings, the applicants had allowed the appeal period to run without appealing and gave no good explanation to the Court as to why, and as to why the Court should exercise its discretion to allow a review. That is not the present case. In Yanta Development Association Inc. & 3 ors v Piu Land Group Inc & 3 Ors SC798 the appellants had knowledge of the proceedings in the National Court but their enquiries with the lawyers for the plaintiffs were met with no assistance. The Court observed the "haste with which the judgment itself was pursued and obtained and in turn denied the appellants and other interested landowners opportunity to join in the action". The failure to serve persons directly affected in breach of mandatory requirements of the Rules meant the judgment had been irregularly entered and must be set aside.
83. We have not been referred to any authority directly on point as to the significance of delay in joining in an action in the Court below, when an appeal has been instituted within time. That was not the position in Kitogara Holdings. We are not prepared to rule on the issue unless it is fully argued.
84. It was also submitted that estoppel by acquiescence has occurred. We consider it is clear that equity cannot prevail against a statutory duty. If conduct is unlawful because it breaches clear provisions of a statute, delay cannot cure it.
85. We have made no reference to submission made on issues not raised in the Objections to Competency.
LENGTHY WRITTEN SUBMISSIONS
86. We do not wish to leave this matter without some comment on the written submissions tendered on behalf of the:
| Appellant's : | 44 plus 23 a total of 67 pages |
| Second and Third Respondents | 18 pages |
87. Lengthy written submissions are generally not helpful to the Court as a substitute for an extract of argument. An extract of argument enables the Court to have a ‘snapshot’ of the position of the respective parties.
88. Supreme Court Rules Order 11 rule 19 (b) provides that an extract of argument shall be prepared consisting of no more than four pages. Even if the court makes an order under Order 11 rule 12 for written submissions written extract of argument should still be filed.
89. In an extract or in full argument lengthy recitation of extracts from the evidence or paraphrasing of the evidence is not helpful. The court has an obligation to look at the evidence itself. Therefore it is not helpful to have submissions made lengthy by the repetition of material which members of the court have already read and made their notes upon by the time they come to consider the written submissions. What is helpful are pinpoint references to the places in the evidence where counsel submits the court will find support for the proposition being advanced. Whilst on the topic of evidence we comment that it is also not helpful for affidavit evidence to set out in the body of the affidavit lengthy extracts from annexures to the affidavit. The Court will look at the original document. Reference to particular pages or passages in the document can be helpful.
90. Likewise lengthy recitations of extracts from judgments are not helpful. Again the court has an obligation to read the original report, to determine for itself what was really decided and what was obiter comment. What is helpful and rarely occurs, is (1) submissions on what the party contends are the propositions for which the case is authority and (2) pinpoint references to the passages in the judgment which counsel submit support their legal arguments. It is helpful for counsel to provide copies of cases, particularly cases from foreign jurisdictions or unreported cases where access may not be readily available.
91. The exercise of condensing submissions down to an extract of four pages is a worthwhile one. It will often draw to counsel's attention areas where the evidence or arguments are not clear or where the point being made is simply lost in the length of material presented to the court.
92. Where counsel consider it imperative that the court is assisted by written submissions in addition to the extract of argument, application should be made for directions. But such submissions should consist of argument and not evidence and quotations from authority (unless very brief).
ORDERS
__________________________________
Gadens Lawyers: Lawyers for the Appellants
Blake Dawson Waldron: Lawyers for the First Respondent
Steeles Lawyers: Lawyers for the Second Respondent
Public Interest Environmental Lawyers: Lawyers for the Applicant John Danaiya
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