N3952

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 1038 OF 2005

LOUIS MEDAING, ON BEHALF OF TONG CLAN
SIBIAG 2 CLAN,
SIBIAG (GUHU) CLAN,
OGEG CLAN &
MEBU CLAN
OF BASAMUK, RAI COAST, MADANG PROVINCE
Plaintiffs

V

MINISTER FOR LANDS AND PHYSICAL PLANNING
First Defendant

REGISTRAR OF TITLES
Second Defendant

GANGLAU LANDOWNER COMPANY LTD
Third Defendant

PATRICK NASA,
SPECIAL LAND TITLE COMMISSIONER FOR BASAMUK
Fourth Defendant

Madang: Cannings J
2008: 15, 21 February

RULING ON MOTION

PRACTICE AND PROCEDURE – motion for summary disposal of application for judicial review – failure to comply with directions of the court – failure to compile review book – Judicial Review (Amendment) Rules, Rule 13(2).

PRACTICE AND PROCEDURE – motion for dismissal of application for judicial review – want of prosecution – National Court Rules, Order 4, Rule 36(1).

A defendant in an application for judicial review complains that the plaintiff (the applicant for judicial review) has not progressed the case in a timely manner since being granted leave for judicial review more than two years ago. The defendant wants the application for judicial review struck out and relies on two grounds: (a) failure to comply with court directions and failure to compile a review book, warranting summary disposal under the Judicial Review (Amendment) Rules; and (b) want of prosecution, warranting dismissal of the application for judicial review under the National Court Rules.

Held:

(1)	As to summary disposal, there have been no directions given by the court, so there has been no failure to comply on the part of the plaintiff.

(2)	As to want of prosecution, there has been a substantial delay in compiling a review book but the plaintiff has given a satisfactory explanation for the delay.

(3)	Both grounds of the motion were dismissed and the orders sought were accordingly refused.

Cases cited

The following case is cited in the judgment:

Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845

NOTICE OF MOTION

This was a motion to strike out an application for judicial review.

Counsel

L Medaing, in person
Y Wadau, for other plaintiffs
T M Ilaisa, for the 3rd defendant

1. CANNINGS J: The plaintiffs, Louis Medaing and others, have been granted leave to apply for judicial review of decisions of the Minister for Lands and Physical Planning and others to issue a State lease to the third defendant, Ganglau Landowner Company Ltd. The lease is over land at Basamuk in the Rai Coast district of Madang Province, known as portions 109 and 110. I granted leave for judicial review in November 2005.

The application for judicial review has not yet been heard.

2. The Ganglau Company complains that the plaintiffs have not progressed the case in a timely manner. Leave was granted more than two years ago. The Ganglau Company argues that the plaintiffs have not even compiled a review book, they have defied directions from the court to get legal assistance and they are deliberately delaying the proceedings. This is having a deleterious effect on the Ganglau Company, which was awarded the land in 2004 following a Land Titles Commission hearing. The land is required for use in the development of the Ramu Nickel project and the protracted court proceedings are delaying the project.

3. The Ganglau Company wants the application for judicial review struck out and relies on two grounds:

(a)	failure to comply with court directions and failure to compile a review book, warranting summary disposal under the Judicial Review (Amendment) Rules; and

(b)	want of prosecution, warranting dismissal of the application for judicial review under the National Court Rules.

MOTION FOR SUMMARY DISPOSAL

4. Rule 13(2)(a) of the Judicial Review (Amendment) Rules states:

Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Practice Directions or on any other competency grounds.

5. Mr Ilaisa, for the Ganglau Company, submits that the plaintiffs – in particular the principal plaintiff, Louis Medaing – have consistently failed to comply with directions from the court to secure a lawyer. Mr Ilaisa submits that the court has bent over backwards to assist the plaintiffs, and dangerously so, as the impartiality of the court may be called into question if it continues.

6. I am unimpressed by that argument as there have been no directions recorded. Certainly there have been occasions on which I, as the presiding Judge, have urged, suggested and recommended – even implored – Mr Medaing to secure a lawyer. But such comments from the bench are not directions. As for other Judges who have dealt with this matter, no directions have been recorded. So the motion for summary disposal on this particular sub-ground must fail.

7. As for the failure of the plaintiffs to prepare a review book, the obligation to compile such a book arises under Rule 7 of the Judicial Review (Amendment) Rules and in accordance with directions of the court given at a directions hearing. Mr Ilaisa maintains that directions hearings were conducted by Davani J in July and August 2006. But that is not so. Directions hearings were due to be heard in that period but her Honour adjourned them sine die. There has been no directions hearing under Rule 6 of the Judicial Review (Amendment) Rules. Hence the obligation of the plaintiffs to compile a review book has not yet arisen. So the motion for summary disposal on this particular sub-ground must also fail.

WANT OF PROSECUTION

8. The plaintiffs rely on Order 4, Rule 36(1) of the National Court Rules, which states:

Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.

9. The underlined parts of the rule are those relied on by the Ganglau Company. Mr Ilaisa summits that there has been a substantial delay, which is not acceptable and represents deliberate delaying tactics by the plaintiffs.

10. I agree that there has been a substantial delay in compiling the review book. But I cannot agree that the plaintiffs are guilty of deliberate procrastination. The affidavit of Mr Wadau, the lawyer for the plaintiff clans other than Mr Medaing's clan, filed on 15 February 2008, gives details of the 22 occasions on which this case has been before the National Court at Madang. Mr Medaing has consistently appeared; whereas there have been inconsistent appearances for the defendants, including the Ganglau Company.

11. The delay in compiling a review book is due to the directions hearing being adjourned on several occasions. The plaintiffs are not the cause of those adjournments. I consider that the defendants are also responsible for these delays.

12. The plaintiff has given a satisfactory explanation for the delay. Therefore I exercise my discretion, having considered the factors outlined in Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845, by dismissing the motion for dismissal of the application for judicial review on the ground of want of prosecution.

CONCLUSION

13. Both the motion for summary dismissal under the Judicial Review (Amendment)Rules and the motion for dismissal under the National Court Rules are refused. The matter should proceed expeditiously to substantive judicial review.

ORDERS

(1)	All relief sought by the third defendant by the notice of motion filed on 10 December 2007 is refused.

(2)	The third defendant shall pay the plaintiffs' costs of the motion on a party-party basis, to be taxed if not agreed.

(3)	The plaintiffs shall liaise forthwith with the Assistant Registrar of the National Court at Madang to obtain a date for a directions hearing for the purposes of Rule 6 of the Judicial Review (Amendment) Rules.

Ruling accordingly.
____________________________

Lawyers for Louis Medaing : Nil
Young Wadau Lawyers: Lawyers for other Plaintiffs
Thomas More Ilaisa Lawyers: Lawyer for the Third Defendant