Todiai v Schnaubelt [2017] PGSC 37; SC1637 (13 November 2017)

SC1637

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 131 of 2017

BETWEEN:
GREGORY TODIAI & OTHERS

Appellants

AND:
WALTER SCHNAUBELT & OTHERS
Respondents

Waigani: Injia CJ
2017: 10^th & 13^th November

SUPREME COURT - APPEAL - Leave to Appeal- Interlocutory decision dismissing application to dismiss application for judicial review brought under Order 16 of the National Court Rules- Class action commenced by representatives of resource owners affected by Forest Clearance Authority - Application to dismiss based on Lack of consent /authority of all plaintiffs authorising representatives to bring class action - Whether arguable case on appeal made out- Division or separation of plaintiffs' representatives that have obtained consent/authorisation and consent/authorisation from those that did not obtain consent/authorisation -Action can be commenced or continued by those who have obtained consent/authorisation- Whether sufficient cause shown to interrupt trial - Procedural options open to raise question of standing at the trial or on appeal- Special nature of judicial review proceedings- Essence of time, quick and cheap disposal of proceedings- Trial proceedings not to be interrupted by appeal from interlocutory ruling except where the appellants' right to litigate the material issues in the trial are substantially prejudiced by the interlocutory ruling and an intervention from the appeal court is warranted- National Court Rules, Order 16 rr 3, 5(1), 13 (2).

Counsel:
Mr Purvey, for the Appellant
Mr Mirou, for the Respondents

13^th November, 2017

1. INJIA CJ: This is an application for leave to appeal from an interlocutory decision of the National Court dismissing the appellants' application to dismiss a judicial review proceeding brought by the respondents. Appeal from an interlocutory decision in a judicial review proceeding brought under Order 16 of the National Court Rules (NCR) lies with leave.

2. The appellants' application to dismiss the proceedings was made after the trial Judge granted leave for judicial review and a copy of the notice of motion instituting the substantive review (which had been filed earlier in anticipation of leave for review being granted) was handed up to the trial Judge in Court after he granted leave for review. The notice of motion (supported by affidavit evidence) contained the claims for substantive relief and interim injunctive relief. No question arises with regard to the early filing of a notice of motion instituting the substantive review under NCR, O 16 r 5(1).

3. I take it that the application to dismiss was made in respect of the Notice of Motion instituting the substantive review (NCR, O16 r 5(1)) and not the Originating Summons seeking leave for judicial review (NCR O, 16 rule 3) which had been determined. Such application may be brought under NCR, O 16 r 13 (2). No question arises from the application brought by the appellants.

4. Upon grant of leave for judicial review the trial judge granted certain interim orders sought in the same notice of motion referred to which were later discharged. No question arises in respect of those decisions except that the appellant argues that the proceedings should have been dismissed for the same reason that the interim orders were discharged namely, lack of standing of all of the plaintiffs' representatives.

5. It is the trial judge's decision on the standing of the plaintiffs to bring the substantive application for judicial review that is the subject of the proposed appeal if leave to appeal were granted. The judicial review proceedings challenged the Forest Clearance Authority issued by the Minister for Forests to clear the forest area situated in the Lak (East) and Kands (West) areas of Konoagil Rural LLG area, Namatanai, New Ireland Province, to make way for a large scale Oil Palm project. There was evidence before the trial Judge that not all the plaintiffs that came from those 17 LLG areas signed the consent/authority for their local representatives comprising of Village Chiefs and Leaders to authorise representatives to commence and continue the proceedings. The appellant argued before the trial judge that this was a class action, that the authority and consent from all the plaintiffs were required pursuant to decisions of the Supreme Court and National Court in Phillip Takori v Simon Yagari (2008) SC905; Alex Bernard & ors v Minister for Petroleum & ors (2016) N6299), and that those consent/authorisation were not obtained from all the plaintiffs from the 17 LLG before and after the commencement of the proceedings. The trial judge rejected the arguments and dismissed the application.

6. An applicant for leave to appeal must demonstrate that he has an arguable case to warrant the grant of leave. He must also show sufficient cause for the appeal Court to disturb the proceedings in substantive action in the Court below by a grant of leave to appeal the interlocutory decision.

7. The main ground of the proposed appeal in essence is a challenge to the plaintiffs' standing to bring the proceedings in the Court below in that they lacked the complete authorisation or consent of all resource owners (the plaintiffs) from the entire 17 LLG areas on behalf of whom they purported to bring and continue the proceedings. The plaintiffs' standing is normally determined at the leave stage. However the application and grant of orders for leave for judicial review normally proceeds ex parte and all interested parties, except the State, are not heard on the question of standing. A person who is not heard in the leave application and is aggrieved by a decision to grant leave for review has several options open to challenge the plaintiff's standing. First, it can be raised before the trial Court at the hearing of the substantive application for review. Second, it can be raised in the appeal Court in an appeal from an interlocutory ruling granting of leave for judicial review. Third, it can be raised in the appeal Court in an appeal from a dismissal of an application to dismiss the judicial review proceedings based on lack of standing. The appellants in this case have chosen the third option and no question arises from the appellants' choice of that particular option.

8. Having hearing arguments on the application from both parties, I discern the main issues for determination to be first, whether the appellants have an arguable case that the trial judge was wrong in the exercise of his discretion. If the appellants have demonstrated an arguable case, this Court goes on to consider other relevant matters, the most important of which is that cause must be shown for the intervention and disturbance of the trial on the substantive claim. The question is whether sufficient cause has been shown. The appellants must show that they stand to suffer prejudice to their right to litigate the same issues in the coming trial.

9. Applying those principles to the case before me, I am satisfied that an arguable case has been demonstrated that the trial judge's finding to allow the matter to proceed to trial in the absence of a complete a consent and authorisation by all the plaintiffs from the 17 LLG areas run against the principles in the cases referred to above. However the weight to be attached to this conclusion is reduced significantly by the fact that the action is still maintainable on a division or separation of the plaintiffs' representatives that had obtained the consent/authorisation and those that did not. There is evidence that the majority of the resource owners from the 17 LLG areas signed the authorisation forms and to that extent, the proceedings remain validly instituted. I am not persuaded that the cases cited by the appellants actually say if the failure to obtain the consent from every plaintiff in a class action is a complete bar to the entire action. To my mind, if a class action contains a mixture of plaintiffs' representatives that have or have not obtained the plaintiffs' consent or authorisation, I would think that the plaintiffs would be divisible along that line and the action continue in respect of those representatives that have obtained authorisation from the plaintiffs whilst those that have not obtained consent/authorisation may be removed or terminated from the proceedings. In addition, the principal plaintiffs also brought the proceedings in their own right as leaders from the affected forest clearance authority areas and they should be allowed to pursue the action.

10. I am also satisfied that the issue of standing of all the representatives of all the plaintiffs to bring either the OS proceeding or file the Notice of Motion instituting the substantive review is a matter that is open to be resurrected before the trial judge in the substantive review. The question of standing will particularly become relevant at the time in the trial of the substantive claim when the precise forest area to be cleared that is affected by the forest clearance authority, the ownership of the land on which the forest resource issue is situated and the appropriateness of the relief to be granted to the appropriate plaintiffs who have suffered loss and damage are determined at the trial. That option is still open to the appellants. Judicial review proceedings are different from ordinary civil proceedings and they deal with causes of action which are of a special nature and time is of essence in dealing with those type of claims.

11. The rules of Court found in Order 16 of the National Court Rules are designed to achieve quick and cheap disposal of cases. It would not be in the interest of judicial review proceedings for the trial proceedings to be interrupted and protracted by appeals from interlocutory decisions except in clear cases where the appellants' right to litigate the material issues in the trial are substantially prejudiced by the interlocutory ruling and an intervention from the appeal court is warranted in order to disturb or halt the trial proceedings in the Court below until the appeal is heard and determined. I am satisfied that the appellant has fallen short of meeting this standard.

12. I also accept the respondents' submission that sufficient cause has not been shown that the trial on the substantive claim should be interrupted by appeal from the interlocutory ruling.

13. For the foregoing reasons, I issue the following orders:

(1) The application for leave to appeal is dismissed
(2) The appellant shall pay the respondents' costs of the proceedings.

____________________________________________________________

Young & Williams Lawyers: Lawyer for the Appellant

Eda Legal Services: Lawyer for the Respondents