Alero, In re [2021] PGSC 110; SC2188 (4 October 2021)

SC2188

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 2 OF 2020 (IECMS)

Application pursuant to Constitution Section 18(1)

Application by
ARNOLD ALERO, ALPHONSE
AMLAMO and ALI YAPI

Waigani: Hartshorn J
2021:9^th September, 4^th October

SUPREME COURT – practice and procedure – Application to intervene – test to be satisfied to intervene in such application – consideration of - whether there is a substantial interest and real interest which is a right or liability recognised in law, peculiar to the applicants, which is directly or likely to be directly affected by the issues in the Application - applicants have not shown that they have the requisite substantial and real interest to intervene in this Application – application to intervene dismissed – s18(1) Constitution

Cases Cited:

Reference by Igo Namona Oala (2011) SC1128
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202
Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016
Special Reference by Hon. Davis Steven (2019) SC1828
Reference by Hon. Belden Namah (2019) SC1896 and SC1898

Counsel:

Mr. A.W. Jerewai, for the Applicants and applicants to Intervene
Mr. T. Tanuvasa, for the First Intervener

4^th October, 2021

1. HARTSHORN J: This is a decision on a contested application to intervene in this Application. The applications are made by Alfred Kehala and Marcus Enep (applicants) in their respective purported capacities as Chairmen of companies the shareholders of which are customary landowners. The applicants are represented by counsel for the substantive Applicants who commenced this proceeding. The first intervener, the Attorney General of Papua New Guinea, opposes the applications to intervene.

2. The substantive Application is applied for pursuant to s. 18(1) Constitution by three Applicants who purport to be automatic citizens who represent three groups of land and forestry owners.

Application

3. The substantive Applicants request the Supreme Court to declare amongst others, that either the Forestry (2007 Budget Amendment) Act 2006 (Act) in its entirety, or s. 121A of the Act, are unconstitutional and of no effect, as the Act fails to comply with the requirements of s. 38(1) and (2) Constitution.

Applications to intervene

4. I consider both applications to intervene together given their similarity. Both applicants rely upon Order 4 Rules 21, 22 and 23 Supreme Court Rules. No objection was taken to the jurisdiction relied upon. Order 4 Rule 21 Supreme Court Rules is the correct rule to be relied upon for an application to intervene.

5. The applicants submit that their applications to intervene should be granted as they and the groups they purportedly represent have substantial pecuniary interests in the issues raised in this Application. This is because of the imposition, collection and use of a local export development levy (LED Levy) under the Act. Moreover, they will have a potential claim if the Act is declared unconstitutional and of no effect.

6. It is also submitted by the applicants that their interests are similar to those of the substantive Applicants. They are represented by the same lawyers as the substantive Applicants and so if their applications to intervene are granted their submissions at the substantive hearing will be a combined submission with the substantive Applicants.

7. The first intervener submits amongst others, that although the applicants submit that they have a pecuniary interest, this is not sufficient to satisfy the ‘substantial and real interest’ test. The substantive Application is concerned with the constitutionality of the Act. The applicants do not have a substantial interest in the subject of the substantive Application and which is peculiar to them. Further, at the hearing of the substantive Application, if they were permitted to intervene, the applicants would only be repeating the arguments of the substantive Applicants.

Consideration

8. This is an Application made pursuant to s. 18(1) Constitution. The test to be satisfied to intervene in such an Application has been considered in numerous cases by the Supreme Court. In Special Reference by Hon. Davis Steven (2019) SC1828 (Hartshorn J, Makail J, Dingake J), a s. 19(1) Constitutional Reference, the Court in determining the test to be applied for a successful application to intervene, considered the cases of Reference by Igo Namona Oala (2011) SC1128, a decision of Davani J and Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016 (Injia CJ, Salika DCJ (as they then were) and Makail J), which both concerned References, now referred to as Applications, under s. 18(1) Constitution. The Court in Steven (supra) also considered In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s. 19(1) Special Reference case.

9. The Court in Steven (supra) then adopted the test that for a successful application to intervene, there has to be a substantial interest and real interest which is a right or liability recognised in law, peculiar to an applicant, which is directly or likely to be directly affected by the issues in the Reference or Application.

10. In Reference by Hon. Belden Namah (2019) SC1896 and SC1898 at [12], I adopted this test. Both of these cases concerned s. 18(1) Applications. I am satisfied that this is the test to be applied here.

11. In this instance, it is submitted on behalf of the applicants to intervene that they have similar interests to those of the substantive Applicants and that a combined submission would be made at the substantive hearing of the Application on their behalf and on behalf of the substantive Applicants.

12. It is not the case therefore, that any interest which the applicants may have, is peculiar to them. It is also the case that the applicants would be repeating the arguments to be made by the substantive Applicants, contrary to In re Re-Election of the Governor General (supra).

13. It may be, as claimed by the applicants, that they have a pecuniary interest and will be financially affected if the Act is declared unconstitutional and of no effect as the LED levy will cease. That, however, is not the question to be determined in this substantive Application. The question to be determined is whether the Act is unconstitutional and of no effect by virtue of s. 38(1) and (2) Constitution not being complied with.

14. For the above reasons, I am not satisfied that the applicants have shown that they have the requisite substantial and real interest to intervene in this Application. Given this it is not necessary to consider the other submissions of counsel.

15. Consequently, for the above reasons, the applications of the applicants should be dismissed.

Orders

16. It is ordered that:

1. The applications of Alfred Kehala and Marcus Enep both filed on 4^th December 2020 are dismissed;
   

b) Alfred Kehala and Marcus Enep shall pay the costs of the first intervener of and incidental to their said applications.

Jerewai Lawyers: Lawyers for the Applicants and applicants to Intervene
Office of the Solicitor General: Lawyers for the First Intervener