Can a statement that is filed pursuant to Order 16 Rule 3 (2) in a judicial review proceedings be amended? In short, yes it can be amended.
At the outset, it is crucial to know and understand the judicial review process is a special process. Hence, there is a specific set of rules in the National Court Rules 1983 that deals specifically with judicial review proceedings. This set of rules is Order 16. The provisions of Order 16 only apply to judicial review proceedings and no other provisions in the National Court Rules is applicable.
Jurisdiction for amendments
If a Plaintiff wants to amend the Order 16 Statement (Statement), he has two occasions in the proceeding to amend it. These occasions are set out under Order 16 as follows:
- Order 16 rule 3 (4): at the time of making the application for leave for judicial review.
- Order 16 rule 6 (2): at the time of hearing the substantive notice of motion.
Amendment of Statement at hearing of Leave for judicial review
A plaintiff who wants to amend the statement can apply at the time of hearing the application for leave to apply for judicial review. He can make this application under order 16 rule 3 (4) to amend the statement. The Court can deal with such application by granting orders for amendment to include:
- Different grounds.
- Additional grounds.
- Orders apart from the above two that the Court thinks is it fit.
The grounds for a judicial review application are as follows:
- Ultra vires or lack of jurisdiction.
- Breach of procedures prescribed by statute.
- Acting under dictation.
- Real or apprehended bias.
- Bad faith.
- Inflexible application of government policy.
- Considering irrelevant considerations.
- Failing to consider relevant considerations.
- Extraneous or improper purpose.
- Wednesbury principle of unreasonableness.
Amendment of Statement at hearing of judicial review
A plaintiff who wants to amend the statement can apply at the time of hearing of judicial review. He can make this application under order 16 rule 6 2) to amend the statement. The Court may allow the plaintiff to amend his statement. However, Order 16 does not provide a set criteria in which the plaintiff can satisfy to the Court before the Court can grant leave to the plaintiff to amend his statement.
In Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 the Court, comprising of the Deputy Chief Justice Kandakasi, and judges Murray and Kangwia dealt with an appeal which raised the point of amendment of statement after leave was granted by the Court. In this appeal, the primary learned judge refused to grant leave to the Appellant to amend the Statement. The Appellant, in the Court below, applied to amend the Statement after leave for judicial review was granted. The Court considered Order 16 rule 6 (2) and stated as follows:
“… a plaintiff in a judicial review proceeding has the right under the relevant provisions to apply for leave to amend his or her O.16 statement. However, it should be noted that all such amendments are restricted to and for the purpose of “specifying different or additional grounds for relief or otherwise”. Unfortunately, there is no prescription anywhere in O.16 as to when and how the application should be made and most importantly, the relevant criteria of any such amendments.”
The Court in Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Conventional criteria for amendment of pleading
The Court noted the absence of set criteria for amendment under Order 16. Hence, the Court affirmed the approach taken by the Court in Barrick (Niugini) Ltd v Nekitel [2020] PGSC 96; SC2007 whereby the Court held that the conventional criteria for amendment of pleadings in other National Court are applicable in Order 16. This convention criteria are set out in Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273, Kewa v Kombo [2004] PGNC 83; N2688 and Tambe v Tamsen [2004] PGNC 66; N2714. The convention criteria for amendment of pleadings are as follows:
- Will the amendment enable the Court to determine the real questions in controversy between the parties?
- Will the amendment correct any defect or error in the proceedings?
- Will the amendment cause real prejudice or injustice to the other party?
- Is the application for such amendment made mala fide or bona fide?
- Can the other party be fairly compensated with costs for the amendment?
- Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?
- Where do the interests of justice lie?
- Is the proposed amendment efficacious? That is, is it a proper amendment?
It is not necessary to satisfy all these criteria for leave to be granted. It depends on the circumstances on each case. In Dads Investment Corporation Ltd v Samson [supra] the Court held that you can apply the following criteria but you do not have to satisfy all of them:
- whether the amendment will enable the Court to determine the real questions in controversy between the parties or correct any defect or error in the proceedings.
- whether the proposed amendments will not result in injustice and prejudice to the other party.
- whether the application is not made mala fide and that the other party will be compensated with costs for such amendments.
All in all, Order 16 does not provide specific provisions for the criteria that the court could use to determine whether a Plaintiff can amend a statement. In the absence of such, the case laws cited as allowed for a plaintiff to satisfy the conventional criteria for amendments before the court can grant leave to amend a statement.
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