Independent State of Papua New Guinea v Saonu [2023] PGSC 177; SC2568 (17 April 2023)

SC2568

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 56 OF 2021

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
HON. WERA MORI in his capacity as MINISTER FOR ENVIRONMENT AND CONSERVATION AND CLIMATE CHANGE
Second Appellant

AND:
GUNTER JOKU in his capacity as MANAGING DIRECTOR OF CONSERVATION AND ENVIRONMENT PROTECTION AUTHORITY
Third Appellant

AND:
HON. JOHN TUKE in his capacity as MINISTER FOR MINING AND GEOHAZARDS MANAGEMENT
Fourth Appellant

AND:
HON. GINSON GOHEYU SAONU in his capacity as GOVERNOR OF MOROBE PROVINCE
First Respondent

AND:
MOROBE PROVINCIAL GOVERNMENT
Second Respondent

Waigani: Hartshorn J,
2023:14^th & 17^th April

SUPREME COURT APPEAL – practice and procedure - Applications for Joinder – factors for granting orders for joinder considered - whether any relief is sought against the applicant for joinder - whether the plaintiff opposes the application for joinder - whether the applicant for joinder will be affected if the relief sought in the statement of claim is granted - whether the joinder of the applicants is necessary to satisfy any orders made in the proceeding - no relief is sought against the applicants for joinder - all parties to the appeal oppose applications for joinder - evidence before Court does not disclose that the applicants for joinder or the persons that they purport to represent will be directly affected if the stay of the EP is not continued - no evidence of actual damage that has or will be caused if the stay of the EP is not continued - evidence as to alleged effects of the DSTP are assumptions and hearsay - not necessary that the applicants be joined to satisfy such orders – applications for joinder are dismissed

Cases Cited:
Marape v. O’Neill (2015) SC1458
Kimaleya Ondalane v. Mark Tony Ekepa (2022) SC2276

Counsel:

Mr. K. Kiponge, for the Appellants
Mr. R. Pato and Mr. C. Mark, for the Respondents
Mr. J. Liskia, for the Applicants

17^th April 2023

1. HARTSHORN J: This is a decision on three contested applications for joinder of this Supreme Court Appeal. The three applicants purportedly represent landowners of three villages in Morobe Province. The applicants’ claim that their joinder is necessary as this appeal concerns whether a stay of the Environmental Permit EP-L3(767) (EP) issued for the proposed Wafi Golpu Mining Project should continue and the persons that the applicants’ represent are directly affected by the EP. This is because the EP authorises the construction of pipelines for Deep Sea Tailings Placement (DSTP) through two of their villages and authorises the discharge of waste through DSTP about 1 km from another of their villages.

2. The applications for joinder are made pursuant to Order 11 Rule 11 Supreme Court Rules. All of the parties to the appeal oppose the joinder applications on various grounds. The applications for joinder are opposed as the applicant’s joinder is not necessary to determine all matters in dispute in the appeal, there is no evidence of prejudice that will be caused to the applicants if they are not joined, the evidence of prejudice and damage which is alleged is assumption and hearsay and the applicants do not have the requisite representation authority.

Background

3. This appeal is of a National Court decision which amongst others stayed a decision to issue the EP. The substantive proceeding in the National Court from which this appeal emanates is judicial review proceeding (OS(JR)35). In OS(JR)35 the plaintiffs, now respondents, seek to review amongst others, the decision of the now third appellant, to issue the EP.

4. The three applicants seeking joinder are plaintiffs in another judicial proceeding in which the validity of the EP is also challenged (OS(JR)112). The primary judge in that proceeding ordered that to avoid duplication of proceedings the applicants were directed to apply to join this appeal and OS(JR)35.

Law

5. As I did in Kimaleya Ondalane v. Mark Tony Ekepa (2022) SC2276 at [9], I reproduce [20] – [29] of Marape v. O’Neill (2015) SC1458 as they set out the law on an application for joinder:

“20. Order 11 Rule 11 Supreme Court Rules relevantly provides that a court or Judge may order that any person be added as a party to proceedings but does not provide for how the discretion to add a party is to be exercised.

21. Order 2 Rule 1 (h) Supreme Court Rules relevantly provides that the National Court Rules shall apply with necessary modifications as if they were Supreme Court Rules with regard to any matter where there is a relevant provision in the National Court Rules, no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed.

22. As there is no provision in the Supreme Court Rules as to how the discretion to add a party is to be exercised and as far as I am aware no relevant order has been made as to the procedure to be followed, Order 5 Rule 8 (1) National Court Rules is relevant. It is:

“(1) Where a person who is not a party-

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party ........”

23. In the Supreme Court case of PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126, Kandakasi J. and Sawong J. said:

“.... we are of the view that the most important test (sic) for joinder of parties are:

(a) whether the applicant has sufficient interest in the proceedings; and

(b) whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

8. In considering whether a proposed party has met the above tests, it is necessary and important to have regard to the cause of action pleaded. For it is the pleadings that disclose the matters in dispute and who are the correct plaintiffs and defendants. ...”

24. I was a member of the Court in PNG Deep Sea Fishing (supra) and agreed with their Honours’ reasoning and conclusions concerning the appeal against the refusal to add parties.

25. In Kara v. Public Curator of Papua New Guinea (2010) N4048, after referring to the tests that are listed a) and b) in PNG Deep Sea Fishing (supra), I stated that:

“25. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely adjudicated upon, certain factors warrant consideration.

26. These include whether:

a) any relief is sought against the proposed party,

b) the plaintiff opposes the application for joinder,

c) the proposed party will be affected if the relief sought in the statement of claim is granted,

d) the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.”

26. As to the second factor above, where the plaintiff, in this case the appellant, opposes the joinder, as I referred to in Coecon Ltd v. Westpac Bank (PNG) Ltd (2012) N5097, this factor was recognised in Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 in which Wynn-Parry J. said:

“The general rule is, I think accurately stated.... in these words: “Generally in common law and chancery matters a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue.””

27. In Coecon v. Westpac (supra), although it was apparent that the plaintiff had a cause of action against the person sought to be joined as a defendant, the plaintiff had decided, for whatever reason, not to pursue him and only to pursue the defendant. The plaintiff opposed the application for joinder. I refused the application. Similarly in Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638, I refused an application for joinder that was opposed by the plaintiff.

28. In Coecon v. Westpac (supra), no relief was sought against the person sought to be joined and he would not have been affected if the relief sought by the plaintiff was granted. In Timbers PNG Ltd (supra), the plaintiff had been granted leave to judicially review a decision of the Minister for Forests. No relief was sought against the company seeking to be joined. The company could have been indirectly affected if the judicial review of the Minister’s decision was successful but not as a direct result of the relief sought by, or the actions of, the plaintiff.

29. In Bobby Enda v. Kanawi Pouru (2013) N5314, although the plaintiffs opposed the joinder application and no relief was sought against the applicant seeking to be joined, it was apparent that if the relief sought was granted it would have directly affected the applicant’s rights to exercise its timber permit rights. Consequently, I was satisfied that the applicant had a sufficient interest and granted the joinder.”

Applicants’ submissions

6. The applicants’ submit that they should be joined as respondents to this appeal as they have sufficient interest in the proceeding being landowners and residents of three villages which will be directly affected by the DSTP if the stay of the EP is not continued and that their joinder is necessary to ensure that all matters in dispute can be effectively and completely adjudicated upon.

Consideration

7. In this instance, the proceeding sought to be joined is an appeal to the Supreme Court. What is appealed is the decision of the primary judge to grant a stay of two decisions, the approval of an Environment Impact Statement and the grant of the EP. In considering an appeal against a stay the Supreme Court is concerned with whether the primary judge fell into error in the exercise of the court’s discretion when he granted the stay. The Supreme Court is not concerned with whether a stay should have been granted.

8. I now consider whether the applications for joinder should be granted taking into account the law on joinder referred to above. In considering whether an applicant for joinder has a sufficient interest in a proceeding or whether an applicant’s joinder is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely adjudicated upon, certain factors warrant consideration.

9. The first factor is whether any relief is sought against the applicant for joinder. In this instance no relief is sought against the applicants for joinder. The second factor is whether the plaintiff opposes the application for joinder. In this instance all of the parties to the appeal oppose the applications for joinder.

10. The third factor is whether the applicant for joinder will be affected if the relief sought in the statement of claim, here the notice of appeal, is granted. Whether or not the relief sought in the notice of appeal is granted after the hearing of the appeal, the National Court will continue with the substantive judicial review proceeding. As to whether the applicants for joinder will be affected if the appeal is successful and there is a refusal to continue the stay of the EP, the evidence before this Court does not disclose that the applicants for joinder or the persons that they purport to represent will be directly affected if the stay of the EP is not continued. There is no evidence of actual damage that has or will be caused if the stay of the EP is not continued. Further, there is no evidence that the subject DSTP pipelines have been constructed or when or if they are to be constructed. I respectfully concur with the submissions of the parties that the evidence as to alleged effects of the DSTP are in essence assumptions and hearsay.

11. The fourth factor is whether the joinder of the applicants is necessary to satisfy any orders made in the proceeding. In this instance the orders which will be made in this appeal are that the stay of the EP is continued or is not continued. It is not necessary that the applicants be joined to satisfy such orders.

12. Given the above, I am not satisfied that the applicants have made out that they should be joined as parties to this appeal. I am mindful that the applicants for joinder are not without recourse in this respect, however. They are at liberty to apply to join OS(JR)35 and to continue with OS(JR)112. In this regard, they are not prejudiced and any rights which they may have, are not compromised. Given the above, it is not necessary to consider the other submissions of counsel.

Orders

1) The three applications for joinder filed 3^rd March 2023 are dismissed.

2) The three applicants of the said three applications for joinder shall pay the costs of the appellants and respondents of and incidental to the said three applications for joinder, to be taxed if not otherwise agreed.
__________________________________________________________________
Solicitor General: Lawyers for the Appellants
Steeles Lawyers: Lawyers for the Respondents
Centre for Environmental Law and Community Rights Inc: Lawyers for the Applicants