Vitolo v Mararea Land Group Incorporated [2021] PGSC 18; SC2097 (26 April 2021)

SC2097
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 47 OF 2019

BETWEEN
PHILIP VITOLO, HERMAN PASI, KENNY SONNY & VINCENT TOVILI
First Appellants

AND
NEW BRITAIN PALM OIL LIMITED
Second Appellant

AND
MARAREA LAND GROUP INCORPORATED
First Respondent

AND
HON. JUSTIN TKATCHENKO, in his capacity as the MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Respondent

AND
IRUNA ROGAKILA, in his capacity as the Registrar for Incorporated Land Group
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J
2020: 2^nd November
2021: 26^th April

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Proposed grounds of appeal challenge grant of leave to amend proceeding – Inclusion of decision by Minister – Leave to amend granted after grant of leave for judicial review –Whether proposed grounds are arguable – Whether no other recourse available – Supreme Court Act – Section 14(3)(b)

Cases Cited:

Nil

Counsel:

Mr. E. Issac, for First Appellants
Mr. T. Kuma, for Second Appellant
Mr. E. Asigau, for First Respondent
No appearance, for Second, Third and Fourth Respondents

RULING

26^th April, 2021

1. MAKAIL J: The controversy between the parties is in relation to a series of decisions by the Minister for Lands and Physical Planning to recognise Mararea Land Group Incorporated (Mami ILG) as the entity representing the customary landowners in a palm oil project with New Britain Palm Oil Limited (NBPOL). These series of decisions were:

(a) decision by Minister Benny Allan which broadly speaking, purported to uphold an appeal by NBPOL against the decision of the Registrar of ILGs to deregister Mami ILG dated 18^th August 2016;

(b) decision by Minister Justin Tkatchenko to rescind the decision of Minister Allan of 18^th August 2016 dated 25^th January 2018; and

(c) decision by Minister Justin Tkatchenko to rescind his decision of 25^th January 2018 and affirm the decision of Minister Allan of 18^th August 2016 dated 31^st October 2018.

2. On 5^th March 2019 Thompson J granted leave to Mararea ILG to amend its originating summons and statement to include the decision of Minister Allan dated 18^th August 2016. This was in proceeding OS (JR) No 925 of 2018 which sought to review the decision of Minister Tkatchenko of 31^stOctober 2018 which rescinded his earlier decision of 25^th January 2018.

3. Following the grant of leave to amend, Mararea ILG filed a further amended statement and originating summons and included to seek judicial review of the decision of Minister Allan dated 18^th August 2016.

4. On 4^th April 2019 I granted leave to review the decision of Minister Allan dated 18^th August 2016.

5. Despite leave being granted for judicial review, the Appellants have gone back to challenge the decision of Thompson J to grant leave to amend the proceeding by seeking leave to appeal pursuant to Section 14(3)(b) of the Supreme Court Act. There is no contest that her Honour’s decision is an interlocutory one and leave is necessary.

6. The Appellants submitted that the Court lacked power to order an amendment as there is no expressed provision in Order 16 of the National Court Rules (NCR) which conferred power on the Court to grant leave to amend the originating summons and statement under Order 16, rule 3(b) (Statement) to add the decision of Minister Allan dated 18^th August 2016 after leave for judicial review was granted to review the decision of Minister Tkatchenko dated 31^st October 2018.

7. They referred to the hearing of the application for leave for judicial review on 4^th April 2019 where I had queried whether it was permissible under Order 16 of the NCR to amend the originating summons and statement after grant of leave to review another decision. They submitted that this further supported their submission that the Court lacked power to order an amendment after leave for judicial review has been granted.

8. Secondly, they submitted that as leave for judicial review is the sole relief being sought in the originating summons and once granted, the originating summons is no longer necessary for the substantive hearing and an Applicant is required to file a notice of motion under Order 16, rule 5 of the NCR to seek substantive relief, it is an abuse of process for Mararea ILG to seek leave to amend the originating summons to add the subject decision.

9. Finally, they submitted that the trial judge did not give them an opportunity to address the application for leave to amend, thus they were denied natural justice.

10. However, these submissions overlook the fact that these series of decisions concerned the recognition or otherwise of Mararea ILG as the authorised entity on behalf of the customary landowners of the palm oil project. They also overlook the fact that Mararea ILG had two options to bring the subject decision to the notice of the Court: First, it may file fresh proceeding and seek leave to review the subject decision. Whether leave will be granted is another matter and will be subject to it being able to establish a case for grant of leave. The disadvantage of this option is additional costs and delay.

11. The other is to seek leave to amend the originating summons and statement to add the subject decision as one of the decisions to be reviewed. Again, its inclusion does not give Mararea ILG an automatic right of review. It is subject to the usual requirements for leave for judicial review. It also saves costs and time.

12. Mararea ILG opted for the second option. It was then granted leave to review the decision of Minister Allan on 4^th April 2019. The inclusion of this decision will enable the Court to review it and the other two by Minister Tkatchenko and make one decision to resolve the issues in controversy between the parties once and for all.

13. As Thompson J ruled in her decision on leave to amend:

“Any amendment to the proceeding should be made if it will ensure that all issues in dispute between the parties are effectively resolved.”

14. Further,

“In order to avoid further unnecessary expense and delay, it would be more effective if the 2016 decision [decision of Minister Allan] was included in the current proceedings.”

15. The observation I made at the hearing of the application for leave for judicial review was made in passing. I am not bound to follow it. On the other hand, it is a misconception to suggest that the Court lacked power to grant leave to amend an originating summons and statement to include the subject decision under Order 16. If the Court has a wide discretionary power under Order 8, rule 50 of the NCR to order an amendment at any stage of the proceeding, surely it must have some form of power under its inherent jurisdiction to order an amendment to the originating summons and statement to bring in the contentious decision for consideration by the Court.

16. As to the Appellants’ submission that it is an abuse of process for Mararea ILG to rely on the originating summons to add the subject decision for judicial review after leave for judicial review has been granted to review a related decision, this submission overlooks the fact that the originating summons constitutes the originating process for the judicial review proceeding under Order 16. It does not lapse merely because the relief for leave for judicial review has been granted, otherwise there will be no proceeding on foot for an Applicant to progress the case to seek substantive relief.

17. The filing of the notice of motion under Order 16, rule 5 is specifically for substantive relief and is not the originating process. It follows that it was open to Mararea ILG to seek leave to amend the originating summons to add the subject decision and seek leave to review it, which it did and sought leave and was granted leave to review it on 4^th April 2019. It is now for it to file an amended notice of motion under Order 16, rule 5 to include the subject decision in the substantive relief.

18. Finally, the Appellants’ claim that they were denied an opportunity to be heard on the application for leave to amend is misconceived. The opportunity to be heard is not lost. It is intact and will be given to them when parties go to the substantive hearing. As leave has been granted to also review the subject decision, the Court will be given the opportunity to review it together with the decisions of Minister Tkatchenko. The recourse for the Appellants to contest the subject decision is in the National Court at the substantive hearing.

19. I find nothing controversial about the decision of Thompson J of 5^th March 2019. The Appellants have failed to establish that the proposed grounds are arguable, neither have they been able to demonstrate that they have been completely shut out and the only way is to be heard on appeal.

20. The application for leave to appeal is refused with costs, to be taxed, if not agreed.

Ruling and orders accordingly.
________________________________________________________________
Emmanuel Lawyers: Lawyers for First Appellants
Bradshaw Lawyers: Lawyers for Second Appellant
Pacific Legal Group Lawyers: Lawyers for First Respondent
Solicitor General: Lawyers for Second, Third & Fourth Respondents