Longai v Maken [2008] PGNC 253; N4021 (18 September 2008)

N4021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 363 OF 2007 (JR)

BETWEEN:

TIMBANI LONGAI
Plaintiff

AND

STEVEN MAKEN
as the ACTING MANAGING DIRECTOR OF SMALL BUSINESS
DEVELOPMENT CORPORATION
First Defendant

AND

JOHN JEFFREY
as CHAIRMAN OF SMALL BUSINESS DEVELOPMENT CORPORATION
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Injia, CJ
2008: 18th September

JUDICIAL REVIEW – plaintiff granted leave for review but failed to file Notice of Motion instituting substantive application – defendants filed application to dismiss proceedings – plaintiff filed counter – notice of motion seeking orders that the time to dispense with compliance of Order 16 rule 5 (1) and (4) of the NCR be dispensed with - Order 16 rule 3 and 5 National Court Rules

JUDICIAL REVIEW – Practice and Procedure - relevant rules of court on judicial review proceedings are found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005 - Notice of Motion an essential prerequisite for instituting application for judicial review - one of those requirement of the rules under O16 that can be dispensed with - plaintiff’s Motion has no merit and is dismissed – respondents notice of motion granted - Order 16 rule 5 (1) and (4) National Court Rules, Rule 13(1) and (2) a & b (a) Judicial Review (Amendment) Rules

Cases Cited:

Apa v Wama [1992] PNGLR 395
Attorney - General Michael Gene v Hamidian Rad [1999] PNGLR 278
Baiwan v UPNG [1995] PNGLR 18
Bernard Juali v The State (2001) SC667
Damem v Tetega (2005) N2900
David Nelson v Patrick Pruaitch (2003) N2440 (Sevua J)
David S Nelson v. Hon Patrick Pruaitch & Ors (2004) N2536
Elizabeth Dambui V SBDC (no case citation supplied)
Ereman Ragi v Joseph Maingu (1994) SC459
Francis Damem v PSC (2005) N2900
Gesa v NCDC (2003) N2457
Himas v Sikani (2002) N2307
Issac Lupari v NEC (2008) N3476
John Kopil v Culligan (1995) N1333
Kerua v UPNG (2004) N2534
Kombati v Father Singin (2004) N2691
Kulua v UPNG [1993] PNGLR 494
Lawrence Sasau v PNG Harbours Board (2006) N253
Leo Duque v Andrew Paru [1997] PNGLR 378
Luke Supro v Gerea Aopi & Anor [1997] PNGLR 353
Mali v PNGTA [1991] PNGLR 116
National Airline Commission t/a Air Niugini v Joel [1982] PNGLR 132
Nere Tali v PNG Waterboard [1992] PNGLR 211
Sir Julius Chan v Ombudsman Commission (1998) SC556
Sir Julius Chan v Ombudsman Commission (1998) SC557
Young Wadau v PNG Harbours Board (1995) SC489
Zachary Gelu v Francis Damem (2004) N2762

Counsel:

N Kiuk, for the Plaintiff
S Ketan, for the First & Second Defendant
No appearance for the Third Defendant

18th September, 2008

1. INJIA, CJ: The Small Business Development Corporation (SBDC) is a statutory authority established under the Small Business Development Corporation Act ("SBDC Act"). The Plaintiff is a former employee of SBDC. On 27th April 2007, he was dismissed from his employment on disciplinary grounds. On 4 July 2007, he filed an application seeking leave to apply for judicial review under O16 r 3 of the National Court Rules (NCR). On 16th August 2007, this Court granted leave. A Notice of Motion instituting the substantive application required to be filed by O16 r 5 has never been filed to this day. This is one of two main grounds relied upon by the first and second defendants in their application to dismiss the review proceedings. The defendants’ application was contested by the plaintiff. The application was argued before me at a series of hearing late last year and I reserved my ruling which I now deliver.

Motions

2. By Amended Notice of Motion filed on 13th November 2007, the First and Second Respondents (SBDC) sought orders in the following terms:

(1) That the Proceedings herein be dismissed for failure to apply for Judicial Review within twenty-one (21) days from the date of grant of leave to Apply for Judicial Review on 16th August 2007 pursuant to Order 16 Rule 5 (1) and (4) of the National Court Rules ("NCR") and Rule 13 (1) & (2) a & b (a) of the Judicial Review (Amendment) Rules 2005.

(2) That the Plaintiff’s Notice of Motion dated 4th July 2007 seeking orders in terms of paragraph 3 be dismissed for non-compliance of Order 4 Rule 4 (1) NCR and Rule 8 of the Motions (Amendment) Rules 2005 and Rule 17 of the Motions (Amendment) Rules 2005;

(3) That in the alternative, the Proceedings be dismissed pursuant to Order 12 Rule 40 of the NCR and Rule 13 (2) a & b (a) of the Judicial Review (Amendment) Rules 2005 for disclosing no reasonable cause of action, for being frivolous or vexatious and for being an abuse of process of the Court.

(4) That the plaintiff shall pay the costs of the application and the proceedings.

3. The application is supported by various affidavits and these are the affidavit of Simon Ketan sworn on 27th September 2007 and filed on 3rd October 2007; Peter Kamara sworn on 27th September 2007 and filed on 3rd October 2007; Simon Ketan sworn on 6th November 2007 and filed on 7th November 2007; Simon Ketan sworn on 12th December 2007 and filed on 13th December 2007 and Brian Kiap Komun sworn on 27th December 2008 and filed on 1st December 2008.

4. In response to the defendants’ application, the plaintiff filed his own counter – notice of motion and supporting affidavits. This motion was also argued at the same time and a single ruling was agreed to by the parties and the Court. In his Notice of Motion filed on 14th November 2007, the plaintiff sought orders as follows:

(1) Pursuant to Order 2 Rule 2 of the National Court Rules, the time to dispense with compliance of Order 16 r 5 (1) & (4) of the National Court Rules, be dispensed with.

(2) As per Order 8 Rule 50 (1) of the National Court Rules, leave be granted to the plaintiff to amend the Originating Summons filed on 4th July 2007.

5. The plaintiff relies on various affidavits and these are his affidavit sworn on 1st October 2007 and filed on 2nd October 2007; his affidavit sworn on 2nd October 2007 and filed on 3rd October 2007; affidavit of Niukson Kiuk Magela sworn and filed on 14th November 2007; affidavit of the plaintiff sworn on 30th November 2007 and filed on 3rd December 2007 and the plaintiff’s affidavit sworn on 16th October 2008 and filed on 22nd October 2008.

Scrutiny of competency of Motions

6. Before proceeding any further, it is necessary to scrutinize reference to the jurisdictional provisions cited in the two motions to avoid incorrect references and avoid duplicitous jurisdictional basis of these applications. I start with the basic premise established by case law that the National Court Rules on judicial review proceedings provides the exclusive procedure for judicial review proceedings: Attorney- General Michael Gene v Hamidian Rad [1999] PNGLR 278. The relevant rules of court on judicial review proceedings are those found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005.

7. It is also established that the proper jurisdictional basis for any interlocutory application such as an application to set aside an interlocutory order in a judicial review proceedings must be found in O 16 of the National Court Rules and not elsewhere in the National Court Rules: Sir Julius Chan v Ombudsman Commission (1998) SC 556. The rules of the National Court Rules relating to Notice of Motion in ordinary civil proceedings applies to judicial review proceedings under O16 by virtue of rule 13 (1) of the Judicial Review (Amendment) Rules 2005. The Motion Rules in the National Court Rules was amended by the Motion (Amendment) Rules 2005. Rule 8 of the Motion (Amendment) Rules 2005 requires a Notice of Motion to state the Court’s jurisdiction to grant the orders being sought by stating the correct provision in the rules of Court or statute conferring such jurisdiction on the Court. Failure to comply with this rule renders the Motion or the order sought in the Motion incompetent and they may be struck out or dismissed for this reason alone.

8. Finally it is established that it is not open to a person aggrieved by an ex parte order granting leave for review to apply to set aside the ex parte order; the only proper course is to appeal the decision under O16 r 11 of the National Court Rules and under O10 of the Supreme Court Rules: Sir Julius Chan v Ombudsman Commission (1998) SC 556; Sir Julius Chan v Ombudsman Commission (1998) SC 557.

9. In the present case, references to Order 4 Rule 4 (1) NCR and Order 12 Rule 40 of the NCR in SBDC’s Motion offends these principles and they are struck out. The effect of this ruling is that the orders sought still remain to be processed under the alternative provisions under O16 pleaded therein.

10. In respect of the plaintiff’s motion, reference to O4 r 4 of the NCR was later amended with leave of the Court to plead the correct jurisdictional provision which is in the Judicial Review (Amendment) Rules 2005. However reference to O8 r 50 (1) was not amended and it is struck out. The effect of this ruling is that the Originating Summons remains un-amended.

Crystallisation & determination of issues

11. SBDC contends that the plaintiff failed to file and serve the Motion under O16 r 5 (1) and obtain a hearing date within 21 days from date of grant of leave as required by O16 r 5 (4). The plaintiff concedes the default. In fact the Notice of Motion has never been filed to this day. The plaintiff was then represented by Daniel Kop Lawyers. They failed to file and serve the Notice of Motion after leave was granted. Subsequently the plaintiff withdrew instructions and instructed Mr Kiuk of Kange Lawyers. The plaintiff’s new lawyer has now applied to this Court for leave to dispense with the requirement to file the Notice of Motion.

12. In my view an application for judicial review is instituted by a Notice of Motion. The filing of the Notice of Motion is an essential prerequisite for instituting an application for judicial review under O16 and upon which basis the Court assumes jurisdiction to deal with the application. It is not one of those requirement of the rules under O16 that can be dispensed with. Therefore the plaintiff’s Motion has no merit and it is dismissed.

13. SBDC then contends that the proceedings disclose no reasonable cause of action on the basis that the decision is not amenable to judicial review. The plaintiff was employed on contract by a statutory authority and his remedy, if any, is by way of an action for damages for breach of contract. His remedy does not lie in public law through judicial review: Ereman Ragi v Joseph Maingu (1994) SC 459, Young Wadau v PNG Harbours Board (1995) SC 489, Luke Supro v Gerea Aopi & Anor [1997] PNGLR 353, National Airline Commission t/a Air Niugini v Joel [1982] PNGLR 132, Apa v Wama [1992] PNGLR 395, Nere Tali v PNG Waterboard [1992] PNGLR 211, Baiwan v UPNG [1995] PNGLR 18, Mali v PNGTA [1991] PNGLR 116, Gesa v NCDC ( 2003 ) N2457, Kombati v Father Singin (2004) N 2691, John Kopil v Culligan (1995) N1333, Kulua v UPNG [1993] PNGLR 494, Himas v Sikani (2002) N2307, Elizabeth Dambui V SBDC (no case citation supplied), decision of Lay, J. (copy handed up, annexed to affidavit of Mr Ketan sworn on 12th and filed 13th December 2007.

14. Mr Ketan submits that the decision of the Supreme Court in Young Wadau case and Ereman Ragi are binding on this Court and there is no other Supreme Court decision which contradicts those two decisions. Therefore those decisions are binding on this Court.

15. Counsel for the plaintiff contends the contract of employment under SBDC comes within the domain of public law and is amenable to judicial review: Issac Lupari v NEC (2008) N 3476, David S Nelson v. Hon Patrick Pruaitch & Ors (2004) N 2536, Damem v Tetega (2005) N2900, Luke Supro v Gerea Aopi & Anor [1997] PNGLR 353.

16. The issue is not new to me. In Lupari v NEC, I raised the same issue for resolution by the Supreme Court in a constitutional reference under s 18 (2) of the Constitution. I was hopeful that the two decisions of the Supreme Court in Ereman Ragi and Young Wadau would be revisited in the light of conflicting decisions of the National Court on the point and settle the law. The Supreme Court however declined to answer the questions raised saying there was no conflict in judicial decisions on the issue: see Lupari v NEC (2008) SC 930. The Supreme Court said:

" In terms of the issue in question 4, we note that, the issue has arisen in the light of the conflicting National Court decisions we have noted in paragraphs 6 and 7 above. The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra) support the proposition in the case of a public servant employed under a contract that, unless there is express provision for the application and continuation of a public servant’s rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court.

In the case before us, there might well be conflicts in the decisions of the National Court as highlighted in the arguments of the parties before us and in the Court below. But that is no reason to say that, there has been much controversy in relation to the issue of appointment and revocation of Departmental Heads and other senior public servants. Though s. 193(1C) of the Constitution and ss. 28 and 31C of the Public Services (Management) Act, were not under consideration in the Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra), these decisions state the law as to when an employer-employee relationship is governed by public law and when it is not. Accordingly, we are of the view that, there is no need for s. 15 of the Supreme Court Act to be invoked in the matter before us."

17. When the Lupari v NEC matter returned before me, I continued to adopt the position I had taken in a number of National Court cases including David Nelson v Patrick Pruaitch (2003) N 2536, Francis Damem v PSC (2005) N 2900, Lawrence Sasau v PNG Harbours Board (2006) N 3253. Other judges have also taken a similar position: see David Nelson v Patrick Pruaitch (2003) N 2440 (Sevua J), Zachary Gelu v Francis Damem (2004) N 2762 (Davani, J). My decision is now the subject of an appeal which has been heard by a five-member bench and decision is pending. I am not certain if this particular point has been raised and argued in the appeal and arguments have been put. In the circumstances, I would give the plaintiff the benefit of the doubt to hold the same view I have held in the cases referred to - that the decision of SBDC on a staff personnel matter made under the SBDC Act is amenable to judicial review. I find that the plaintiff has adopted the correct mode of instituting proceedings by way of judicial review under O16 of the NCR.

18. SBDC’s final point of contention is that the plaintiff failed to file a Notice of Motion under O16 r 5 and this is fatal to the continuance of the judicial review proceedings. In the case quoted by Mr Ketan in support of his submission, in Kerua v UPNG (2004) N 2534, the court emphasized the importance and essence of time in judicial review matters under O16 NCR. The Court said:

"In a judicial review application, time is of the essence. The rules recognize and emphasize this point by requiring the Registrar to fix a date for hearing the substantive application within a fixed time frame, after the grant of leave. Order 16 rule 5(3) & (4) provides:-

"(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in the hearing.

(4) Within 21 days after the grant of leave the notice of motion shall be allocated a date for hearing by the Registrar after consultation with the parties."

" It is incumbent on the Registrar to consult with the parties within the prescribed twenty-one (21) days and fix a date for the substantive hearing to take place as soon as it is practicable for the parties and the court. The date for hearing will be fixed on the Notice of Motion filed by the Applicant under O 16 r 5(1). A reasonable or practical time frame is not infinite number of weeks or months and even a year or years, as my own experience in some judicial review cases show. I am speaking of a week to a few weeks or perhaps, and in exceptional cases a month or two at most. It is equally incumbent on the parties, Applicants in particular, to enquire with the Registrar within the twenty-one (21) days to fix a date for the hearing. In a case where there is a stay order issued, the onus is even heavier on the Registrar and the parties with the Registrar in particular, the Applicant, who is the beneficiary of the stay order, to consult and take the appropriate action. If for some good reason, it is not practicable for the Registrar to fix a date for the hearing within the twenty-one (21) days, he must seek directions from the Court.

"In the present case, there is no record of any Notice of Motion being filed by the Plaintiff under O16 r 5(1) and being served on the Defendants under O 16 r 5(2). After the grant of leave, the matter came before the National Court on two (2) occasions, on 28th July and 1st August 2003 respectively, but it is not clear how the matter got listed on those two dates and whether the matters were fixed for the substantive hearing.

"It is now more that nine (9) months since leave was granted and the position of the parties have changed significantly. The purpose of the application has been achieved. The Plaintiff has completed his studies and earned his degree. He is entitled to receive his degree. This Court’s judicial review exercise may be after all an academic exercise in futility.

"The fault in not promptly bringing this matter for a hearing cannot be solely put on the Registrar. The Plaintiff is the first to blame because he starts the process with the filing of the Notice of Motion. He should have filed the Notice of Motion first in order for the Registrar to fix a date on it. Equally so, it was incumbent on the Defendant to seek a date for the hearing or even apply for summary disposal of the application for want of prosecution. If neither party acted, the Registrar could have referred the matter to the Court for summary determination."

19. Apparently Kelly Kerua was decided before O16 was amended introducing a pre-trial regime. Under the pre-trial process under the amendment rules, time is of essence and the statements made in Kelly Kerua still hold true after the amendments to O16.

20. The Judicial Review (Amendment) Rules in fact did not remove the time stipulations in O16 r 5 for filing and service of Notice of Motion and obtaining a date for hearing. That is when leave has been granted and a Notice of Motion is required to be filed, a hearing date is sought from the Court within the 21days from the date of grant of leave. To demonstrate how this works, I set out the main steps as follows:

1. Court grants leave: O16 r 3. Directions are issued by the same Judge who grants leave at the time of granting leave, for, inter alia, filing and service of Notice of Motion: O16 r 5 (1), O16 r 13.5 (Judicial Review (Amendment ) Rules). The Court fixes a date for directions hearing to take place within 14 days from grant of leave.

2. Notice of Directions hearing is issued by the Registrar. The return dated fixed by the Registrar is the same as date fixed by the Court under O16 r 13.5 (5).

3. Directions hearing takes place within 14 days from grant of leave. After directions are issued as to filing of affidavits, Review Book, etc; a date is fixed for a pre-hearing conference to take place within 7 days. This brings to total the number of days after grant of leave at 21 days.

4. At the pre-hearing conference, a date for hearing is fixed. This conforms with the requirement under O 16 r 5 (4) that the Notice of Motion "must be fixed for hearing within 21 days after the grant of leave."

5. The actual hearing of the Notice of Motion need not take place within 21 days after grant of leave but it must be expedited.

21. In the case before me, leave to apply for review was granted a few months before the new Rules were made. It took almost 12 months for the new Rules to settle in amongst practitioners and at times they were not enforced rigidly. Therefore the filing of the Notice of Motion remained a matter of the plaintiff’s doing. Under O16 r 5 the plaintiff was required to file a Notice of Motion to institute the substantive proceedings. That was never done. The failure is attributed to the lawyers for the Plaintiff who handled his case at that point in time. This is a serious flaw in the conduct of the proceedings. Then an application to dispense with the requirements of O16 r 5 was filed 3 months later but that too was procedurally flawed: see paragraph 12 above.

22. In my view the respondents should not be made to pay the price in costs, inconvenience and hardship, for the failure of lawyers to comply with fundamental requirements of the rules of Court pertaining to institution of Court proceedings. The plaintiff in the end suffers prejudice to his claim primarily because of his lawyer’s carelessness. The respondents have done everything right to defend the proceedings. The explanation given by the plaintiff to the Court is not a good one for avoiding obvious legal consequences of a failure by a lawyer in complying with prescribed Court rules of procedure or Court orders made pursuant to those rules. The remedy for a party aggrieved by failure of a lawyer in attending to the case resulting in judgment entered against that party lies in a professional negligence suit but not setting aside the judgment entered in favour of the other party. There are many case authorities on this point but two Supreme Court decisions which come to my mind are Leo Duque v Andrew Paru [1997] PNGLR 378 and Bernard Juali v The State (2001) SC 667.

23. For these reasons, I accept Mr Ketan’s submissions and dismiss the proceedings pursuant to Order 16 Rule 5 (1) and (4) of the National Court Rules ("NCR") and Rule 13 (1) & (2) a & b (a) of the Judicial Review (Amendment) Rules 2005 with costs.

Orders:

The formal orders of the Court are:

(1) The respondents Notice of Motion filed on 13th November 2007 is granted.

(2) The plaintiffs Notice of Motion filed on 14th November 2007 is dismissed.

(3) Consequently, the proceedings are dismissed pursuant to Order 16 Rule 5 (1) and (4) of the National Court Rules ("NCR") and Rule 13 (1) & (2)a & b (a) of the Judicial Review (Amendment) Rules 2005.

(4) The plaintiff shall pay the respondent’s costs of the proceedings.

__________________________________
Nikuma Lawyers: Lawyer for the Plaintiff
Ketan Lawyers: Lawyer for the Respondent