Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008)

N3317

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 504 OF 2007(JR)

BETWEEN:

PETER MAKENG, ALPHONSE MANAGA, MOSES OKAP, PHILLIP AMBINGI, BERNARD GOMBA, JOSEPH ANDAME, JOHN ARAM & KEN MOTOKAI as duly representatives of Middle Ramu Block One Forest Management Area Landowners
- Plaintiffs-

AND:

TIMBERS (PNG) LIMITED
-First Defendant-

AND:

KANAWI POURU, Managing Director of National Forest Services –
-Second Defendant-

AND:

NATIONAL FOREST BOARD
-Third Defendant-

AND:

NATIONAL FOREST AUTHORITY
-Fourth Defendant-

AND:

HON. BELDEN NAMAH, Minister for Forest
-Fifth Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
- Sixth Defendant-

Waigani: Injia, DCJ
2007: 15 October
2008: 23 April

PRACTICE AND PROCEDURE – Judicial review – Whether Court has jurisdiction to grant stay or other interim relief before grant of leave to apply for judicial review – Order 16 r 3 (8), National Court Rules, Constitution, s 155 (4).

Held:

Pursuant to O 16 r 3 (8) of the National Court Rules, the Court has no jurisdiction to grant stay or other interim relief before leave to apply for judicial review is granted but only after leave is granted.
Section 155 (4) of the Constitution confers no primary jurisdiction on the Court to grant a stay or other interim relief before leave to apply for judicial review is granted.

Cases cited:

Papua New Guinea Cases

Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 278
Avia Aihi v The State (No 1) [1981] PNGLR 81
Ila Geno v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Kuluah v UPNG [1993] PNGLR 494
Lohia Raka v Leo Toichem & Others [2000] PNGLR 328
NTN v Board of Post & Telecommunications Corporation [1987] PNGLR 70
SCR No 2 of 1981 [1982] PNGLR 15
Uma More v UPNG [1985] PNGLR 41.

Overseas cases cited:

Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
M v Home Office [1993] All ER 537
R v Kensington & Chelsea Royal London Borough Council, ex parte Hammel [1989] All ER 1202

Counsel:

M Manu, for the Plaintiffs
J Shepherd, for the First Defendant
I Shepherd, for the Second, Third, Fourth & Fifth Defendants
A Chillion, for the Sixth Defendant

23 April, 2008

1. INJIA DCJ: The plaintiffs apply for interim injunctions under s 155 (4) of the Constitution before the determination of his earlier application for leave for judicial review made under 0 16 r 3 of the National Court Rules. A preliminary procedural issue arises as to the Court’s jurisdiction to grant interim injunctive relief prior to grant of leave to apply for judicial review ( unless otherwise stated, leave means leave to apply for judicial review). This issue is raised in the context of O 16 r 3 (8) which says where the Court grants leave, then, the Court goes on to consider granting an order for stay or other interim relief. This issue was argued before me and I delivered my brief ruling on 15 March 2008 with full reasons to follow. I now publish my full reasons.

2. The issue is an important one of interest to both judges and practitioners because of varying practices amongst practitioners and judges. In the first twenty years after Independence, judicial activism in the area of judicial review was limited to few cases. In the last ten years, there has been an increase of judicial review applications been filed. Many of those have been dealt with but there is still large number of them pending. Judicial review proceedings are now a growing area of judicial activity. For the Court’s part, the judges promulgated the Judicial Review (Amendment) Rules 2005 which introduced procedures to improve the disposition of cases, in a prompt and fair manner. A special track has now been set up in the National Court at Waigani to deal with judicial review matters.

3. With the increase of judicial review proceedings, it has become evident that in numerous cases, urgent applications ex parte, for interim injunctive orders, have been made and granted before the grant of leave. The jurisdictional basis for this, is s 155 (4) of the Constitution. The issue of whether s 155 (4) of the Constitution grants such jurisdiction may have been raised in some cases coming before other judges but to my knowledge, the issue has not been determined. The issue was first raised before me in OS 639/06 (JR) Paul Asukusa v Minister for Housing & Ors, Unnumbered judgment delivered on 19 October 2006. I declined to determine the issue and left it to be fully argued and determined in an appropriate case. I quote from pages 5 – 6 of my ruling in that case:

" Mr Kakaraya raised two preliminary points which I dispose off quickly. First he submits the Court lacks jurisdiction to grant the interim injunctive orders because such orders can only be granted after leave is granted and a substantive application is filed under O 16 r 5.

He relies heavily on the wording of O 16 r 3 (8) which he submits reflects the common law position and this is strengthen by Sheehan J in Albert Kuluah v UPNG [1993] PNGLR 494. He submits the interim order applied for and granted under O 14 r 9 of the National Court Rules, which comes under O 16 r 3 (8) (b) have no application. Mr Narokobi appears to concede this point but submits the Court used its inherent power under s 155 (4) of the Constitution. The direct reference to "orders in the nature of prerogative writs" in s 155 (4) brings interim orders issued in judicial review proceedings under Order 16 within the terms of s 155 (4).

This is an interesting argument. Mr Kakaraya may as well be right on this point but as I intimated during argument, this is a substantive procedural issue which has the potential of unsettling the current practice amongst many judges where interim injunctive relief is granted in judicial review proceedings before leave is granted. I am one of those judges. I have held the view that interim orders in judicial review proceedings before leave is granted is permissible under s 155 (4) of the Constitution.

However, my view is tentative only and I would prefer full argument on this issue in order to determine this issue properly. I do not think this issue has been fully argued in this case. I leave that to be argued and determined in another case. For the present purposes, I am content with s 155 (4) argument as providing the jurisdiction to this Court to issue, vary or set aside interim restraining orders"

4. I consider the present case to be an appropriate case for the issue to be determined. The issue has been fully argued before me by counsel. Counsel were furnished with a copy of my decision in the Paul Asakusa case to assist them in preparing their arguments. I am indebted to them for their comprehensive submissions on the issue.

5. Order 16 r 3 (8) states:

"Where leave to apply for judicial review is granted, then –

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until otherwise orders; and

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ." (underlining is mine)

6. Order 16 r 3 (8) of the National Court Rules is adopted from Order 53 r 3 (10) of the Supreme Court Rules 1965(as amended) of the United Kingdom (cited as RSC) which provides:

"Where leave to apply for judicial review is granted, then –

(a) if the relief granted is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

(b). if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ."

7. The only difference between the two rules, which may not be of any significance, is the lack of conjunctive expression of par (a) and (b) by the omission of the word "and" at the end of par (a) in the UK Rule.

8. There is no provision in O 16 which gives the Court jurisdiction to grant a stay or interim injunctive relief before leave for judicial review is granted. Order 16 r 3 (8) is the only applicable provision on grant of stay or other interim relief. There is no contest amongst the parties as to the meaning of O 16 r 3 (8).On the contrary, Order 16 r 3 (8) gives the Court jurisdiction to grant a stay or interim relief only after leave for judicial review has been granted.

9. The main argument made by Mr Manu of counsel for the plaintiffs is based on s 155 (4) of the Constitution and the decision of the House of Lords in M v Home Office [1993] All ER 537. Mr Manu also relies to the English Court of Appeal decision in R v Kensington & Chelsea Royal London Borough Council, ex parte Hammel [1989] All ER 1202 but that decision does not support his main contention. It supports the respondent’s submissions.

10. Section 155 (4) of the Constitution states:

" (4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

11. Mr Manu submits O 16 r 3 (8) of the National Court Rules is subject to s 155 (4) of the Constitution which gives the Court the discretionary power to grant a stay of decision the subject of judicial review or other interim relief, in the circumstances of a particular case, to do justice. Order O 14 r 9 also gives the Court jurisdiction to grant interim injunctive relief in an urgent case, where the interest of justice so requires, before proceedings are commenced. These provisions confer a general jurisdiction to grant interim relief in any proceedings either before proceedings are filed or after proceedings are filed and in the case of judicial review proceedings, before leave to apply for judicial review is granted. The Court should avoid a narrow and technical interpretation of O 16 r 3 (a) but it should read it broadly and subject to the constitutional mandate in s 155 (4) to do justice to applicants, in appropriate cases, before leave for review is granted. He urges me to adopt the approach I adopted in the Asakusa case.

12. Mr Manu further submits this Court should follow the House of Lords decision in M v Home Office, which says the Court had jurisdiction to grant an interim injunction before leave to move for judicial review is granted. The Court interpreted RSC, O 29 r 1 (which is similar to our O 14 r 9) and s 31 of the Supreme Court Act 1981 of UK and reached the conclusion that RSC, O 53 r 3 (10) did not remove the Court’s inherent power to grant interim injunction before leave is granted in an urgent case.

13. Mr Shepherd of counsel for the first respondent submits s 155 (4) of the Constitution is available to fill in a gap in the law or to fashion a new remedy. It is used in aid of a primary right conferred by law and it cannot confer a new primary right and it does not give the "Court the power to do anything contrary to what the law says": SCR No 2 of 1981 [1982] PNGLR 15, 154; Uma More v UPNG [1985] PNGLR 401, 424. Order 16 is a sub-ordinate legislation which is developed by Courts under its rule making power which specifically provides the procedure for stay and interim relief in judicial review proceedings. It is clear and expressed in mandatory terms and those rules apply. There is no room for the Court to invoke s 155 (4).

14. Mr Shepherd submits Home Office should not be followed because the decision was made pursuant to the Court’s jurisdiction to make substantive injunctive orders given by primary legislation in s 31 of the Supreme Court Act 1981 (UK), which supports RSC O 53 r 3 (10). There is no equivalent provision in the National Court Act which confers such primary jurisdiction on the Court.

15. Mr Chillion of counsel for the State submits it is established principle that s 155 (4) of the Constitution empowers the Court to tailor its remedies, in a particular case, to protect a person’s primary rights which is conferred by law. This principle was first enunciated in Avia Aihi v The State (No 1) [1981] PNGLR 81 and followed in many cases which he cites in his submissions. However, whilst O 16 r 3 (8) precludes grant of stay or interim relief before grant of leave for judicial review, there is a discretion conferred by s 155 (4) to allow the Court to exercise its discretion whether or not to grant interim relief before leave is granted, in order to prevent prejudice or protect the plaintiff’s interest before grant of leave. Order 16 r 3 (8) is a rule of procedure which guides the way proceedings are conducted and it should not be read restrictively by the Court to deprive itself the discretionary power conferred by s 155 (4), rather, it should is be "read down" to enable the Court to grant interim relief as intended by s 155 (4) of the Constitution.

16. Judicial review is a special procedure developed by the Courts to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public power conferred by statute. It is discretionary. Ordinarily, it is not the Court’s function to intervene in the administrative functioning of statutory authorities except in cases where the statutory authority has committed a legal error. Judicial review is restrictive and this is achieved in several ways:

(1.) by prescribing comprehensive and exhaustive rules of practice and procedure, which inter alia, confers jurisdiction to review administrative acts in strict and mandatory terms;

(2.) by restricting the grounds in which judicial review procedure is available: see Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122;

(3.) by prescribing special types of relief in the nature of prerogative orders which are available in judicial review;

(4.) exercising the discretion under the rules is restrictive

17. Courts continue to emphasize the principle that the court’s process under judicial review procedure should not be abused by busybodies and other persons with no genuine grievance, or with misguided complaints over trivial administrative error: Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, adopted and applied in NTN v Board of Post and Telecommunication Corporation [1987] PNGLR 70; Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22; Lohia Raka v Leo Toichem &Others [2000] PNGLR 328.

18. It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 278. Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16. For instance, see r 3(8)(b) (interim relief), r 7 (2) (claim for damages), r 9 (5) (continuation of proceedings by pleadings). The court’s jurisdiction to grant interim relief in judicial review proceedings, which could be granted in an action commenced by writ, is given by O 16 r 3 (8)(b).

19. In terms of the meaning of O 16 r 3 (8), first, the provisions of r 3 (8), par (a) and (b) are expressed conjunctively by use of the word "and" adjoining the two paragraphs. They are intended to be read conjunctively as a whole. There is little difference between an order for stay issued under par (a) and an interim order, usually an interim injunction, issued under par (b) because both have the same effect. In De Smith, Wolf and Jowell, Judicial Review of Administrative Action, 5th Ed; Sweet & Maxwell, 1995, the distinction between RSC Ord 53 3 (10) (a) and (b) is explained, at page 670, par 15-29:

" When the relief sought includes an order of certiorari or prohibition, the grant of leave, if the court so directs, operate as a stay or until the court otherwise orders. The term "stay of proceedings" is not confined to proceedings of a judicial nature, but encompasses the process by which any decision challenged has been reached, including the decision itself. When any other relief is requested, the court may at any time grant such relief as could be granted in an action commenced by writ, most usually an interim injunction. Although a stay of proceedings and an interim injunction perform the same function of preserving the status quo until the full hearing, there are conceptual differences between the two forms of relief. Whilst the injunction protects the interest of the litigant in dispute with another, the stay is not addressed to an "opposing party" but rather is directed at suspending the operation of a particular decision. While the grant of an interim injunction is usually conditional upon the applicant giving a cross-undertaking in damages, there appears to be no such requirement or practice in relation to a stay of proceedings".

20. It follows from the above passage that given the similarity of a stay order and an interim injunction, other interim injunctive relief would also be available in a case where prohibition or certiorari is claimed, under r 3 (a).

21. Second, the grant of leave for judicial review is a pre-condition to a grant of stay and any other interim relief in any judicial review matter. By the grant of leave, the Court grants itself jurisdiction to grant the relief sought, whether such relief be interim or substantive.

22. Third, if the relief sought is an order of prohibition or certiorari, a stay of proceedings under (a) is not automatic upon grant of leave. An order of the court on stay is necessary to effect a stay and it is discretionary.

23. Fourth, if the relief sought is not prohibition or certiorari but some other relief, which is available in judicial review, such as mandamus or quo warranto ( see O 16 r 1 ), the Court may at any time of the proceedings, after leave is granted, grant such interim relief as could be granted in an action begun by writ. By virtue of clause 13 (1) of Judicial Review Amendment Rules 2005, the rules applicable to Motions in judicial review matters are those prescribed by the National Court Rules as amended by the Motion Amendment Rules 2005 which amongst others, provides the procedure for urgent ex parte applications.

24. In order to understand the context in which r 3 (8) appears in its present form under O 16 r 3, one needs to understand the total context in which RSC, O 53 r 3 (10) appears in the UK Rule. Our r 3 is the equivalent of r 3 of the UK Rule. Whilst most provisions of r 3 are the same or similarly worded, there are significant differences between the two rules in the procedure for leave applications. Order 16 r3 ( 1), (2), (6), (7) and (8) are identical or similar to RSC O 53 r3 (1), (2), (6), (7) and (8) respectively. Order 16 rr 3, 4, and 5 are different from RSC O 53 r3 (3), (4) and (5). Under RSC O 53 r 3 (3), an application for leave is heard ex parte in chamber "without a hearing" involving the other party "and need not sit in open Court", "unless a hearing is requested in the notice of application. The application is not required to be served on the Crown Office. If leave is refused, the applicant may re-apply to a judge of the Queens Bench and the application is required to be served on the Crown Office: RSC O 53 r 3 (4) and (5).

25. Under our O 16 r 3, the Secretary for Justice must be served notice of the application for leave and given two clear days notice: r 3 (4) and (12). The application is heard in open Court and it is heard strictly ex parte insofar as parties other than the State is concerned. The State has a right to be heard and every opportunity must be afforded to the Secretary for Justice to be heard: s 8 of Claims By and Against the State Act 1996. An appeal lies to the Supreme Court against grant of or refusal to grant leave: O 16 r 11 & and O 10 of Supreme Court Rules.

26. The other significant difference is that in 1993, the practice under RSC O 53 r 3 (10) was modified by Supreme Court Practice 1993. Par 53/1-14/24 of the Supreme Court Practice 1993 significantly altered the practice under O 53 r 3 (10) in that it conferred jurisdiction in the court to grant a stay or interim injunctions before leave to apply for judicial review is granted, in a case where "the case is so urgent". It states:

"Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review."

27. The practice under RSC O 53 r 3 (10) prior to Supreme Court Practice 1993, is canvassed by Lord Parker in the Court of Appeal decision in R v Kensington & Chelsea Royal London Borough Council, ex parte Hammell [1989] ALL ER 1202 (Kessington case). It was held that the Court cannot grant a stay or other interim relief under Ord 53 r 3 (10) unless the Court has given himself jurisdiction to grant such orders by granting leave to apply for judicial review. Lord Parker stated at 1215:

" There remains a matter of procedure which was canvassed by counsel for the council, namely the question whether, assuming a application, as I hold it can, can be made on for interim relief of this sort, it can be made ex parte or must be made on notice to the other side. The position under Ord 53 is that every application for leave to move must be made ex parte in the first instance (r 3/2) and it is on the grant of leave, which may be made on such ex parte application, that the alternative powers under Ord 53 r3 (10) arise. The judge, when considering whether or not to grant leave and therefore given himself jurisdiction to grant relief of either the types mentioned in the paragraph, will no doubt consider whether the case is sufficiently urgent to warrant his dealing with it at that time, or whether he should put it over to be heard inter partes. In so doing, he would be reflecting the procedure under Ord 29 that would apply in the case of an action, for there it is provided that except in urgent cases the application for interim relief must be made by motion or summons (see Ord 29, r1(2). It is therefore impossible to rule that all such applications must be on notice. I would, however, for my part observe that where an application for interim is intended to be made, the applicant would be well advised to give notice to the other party such that an application is being made in order that the other party may, if he so wishes, attend and assist the court by filling in any gaps in the information which may be available and thereby enable the matter to be dealt with properly at a first hearing and dispense with the necessity of having a second hearing. I can therefore say no more than that notice that an ex parte application for interim relief is going to be made would be an advisable step in all cases"(emphasis is mine).

28. When Kensington was decided in 1989, there was no question that the Court lacked jurisdiction to stay or interim relief before leave was granted. The issue emerged in Home Office and it was considered and determined by the House of Lords in 1993 in that case. The brief facts in Home Office were that the applicant, a citizen of Zaire, was refused political asylum by the Secretary of State. He made an urgent application in chambers before a judge, which was adjourned after a brief hearing. Counsel for the Secretary gave an undertaking that the applicant would not be removed from UK pending the hearing and determination of the leave application. That same day the applicant was flown out of UK. That same evening the judge ordered the Secretary to procure his return. The Secretary failed. The judge later discharged the interim injunction. The Secretary and the Home Office which arranged the flight were then charged with contempt of the order whilst the order was in force. The officers of the Home Office were convicted. On appeal, the Court of Appeal quashed the conviction for contempt against the officers of the Home Office but found that the Secretary was guilty of contempt in withholding action to return the applicant from Zaire. The Secretary appealed to the House of Lords. The question of validity of the primary judge’s (Garland J) order arose in the light of RSC Ord 53 r 3 (10)). It is significant to note in the judgment of Lord Wolf who gave the leading opinion, that reference is made to s 21 of the Supreme Court Act 1981 (UK) which gives statutory authority to the Court to issue injunctions against the Crown in any civil proceedings, and s 31 of the same Act which gives statutory authority to the Court to issue injunctions in an application for judicial review. Section 31 does not differ materially from RSC Ord 53. Lord Wolf favoured a more liberal reading of RSC Ord 53 r 3 (10) when His Lordship states at p 564:

"As to the ‘technical’ point referred to by Lord Bridge ( see quote at p 561 taken from Lord Bridge’s speech published in [1989] All ER 692 at 708[1989] UKHL 1; , [1990] 2 AC 85 at 149-150) ), Ord 53, r 3 (10) is similarly linked to Ord 53, r 1 (2) and the almost identically worded provisions of s 31 (2) (of Supreme Court Act 1993). While it is correct that an application for judicial review cannot be made until leave is granted, this does not mean that s 31 (2) restricts the court’s jurisdiction to grant interim or final injunctions until after leave has been given and this has been followed on judicial review and would be followed by lodging a formal application with the court. This would be quite out of accord with practice which has always been followed on judicial review and would involve the expense and delay of two hearings when at present there is usually one. The clear intent of Ord 53 r 3 (10) is that the court where it considers an application for leave at an oral hearing should deal with questions of interim relief if it is appropriate to do so." (emphasis is mine).

29. The "practice" referred to by Lord Wolf is found in The Supreme Court Practice 1993, par 53/1-14/24. This rule of practice was the basis for the decision reached by Lord Wolf on the issue on the validity of the interim order issued by the primary judge (Garland J). Lord Wolf states at p 565:

" The validity of the injunction granted by Garland J

What has been said so far does not mean that Garland J was necessarily in order in granting the injunction. The injunction was granted before he had given the applicant leave to apply for judicial review. However, in a case of real urgency, which this was, the fact that leave had not been granted is a mere technicality. It would be undesirable if, in the situation with which Garland J was faced with, he had been compelled to grant leave because he regarded the case as an appropriate one for an interim injunction. In the case of civil proceedings, there is a recognition of the jurisdiction of the court to grant interim injunctions before the issue of writ, etc (see Ord 29, r 1 (3)) and in an appropriate case there should be taken to be a similar jurisdiction to grant interim injunctions now under Ord 53. The position is accurately set out in The Supreme Court Practice, 1993 para 53/1-14/24, where it states:

‘Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review.’

There having been jurisdiction for Garland J to make the order which he did, it cannot be suggested that it was inappropriate for him to have made the order."

30. In Home Office, the Court did not overrule Kensington as it did other decisions of the Court of Appeal. The Court affirmed the principles in Kesington’s case, especially on the principle that RSC O 53 r 3 (10) gives the court jurisdiction to grant interim injunctions.

31. I am not aware of any local case on point. The case of Kuluah v UPNG [1993] PNGLR 494 cited by Mr Kakaraya in the Asakusa case is relevant on the procedure to be followed in seeking interlocutory injunctions before judicial review proceedings are filed. It is not indicated in the judgment if the application for interlocutory injunction was made under O 14 r 9. Justice Sheehan reinforces the view that no such application can be made before judicial review proceedings are filed. His Honour said at p 496:

"In the normal course, a plaintiff seeks interim restraints pursuant to a substantive claim already filed. It seems in this case that the plaintiff has not adopted any recognized procedure in pursuit of his claims. He intends to ask for judicial review but has filed no application for review."

32. In my opinion, the English House of Lords decision in Home Office, is based on two main things which affect Ord 53 r 3 (10). First, this rule is given primary legislative support by statute namely, s 31 of the Supreme Court Act 1981. Second, this rule was modified by a rule of practice introduced in the Supreme Court Practice 1993. And so given the nature of a leave application before the primary judge which is usually dealt with ex parte in chambers without a hearing either in chambers or in open court, and in urgent cases, without even filing proceedings, it is impossible to rule out the Court’s assumption of jurisdiction to grant a stay or interim orders before leave is granted. Indeed the Supreme Court Practice 1993 expressly gives the Court jurisdiction to grant interim orders before leave is granted in an urgent case. Home Office was one such urgent case.

33. In our situation, O 16 lacks primary statutory authority and rules of practice similar to Supreme Court Practice 1993. I have also noted significant differences between our rules and the UK rules in the procedure applying at the leave stage. Under our rules, in which this Court is required to conduct a hearing in open Court in which the State as an interested party, is given an opportunity to be heard on the application for leave and or application for stay or other interim relief. There is also differing practice amongst judges in conducting a hearing of a leave application under O 16 r 3 (2). Despite the clear and mandatory provision in r 3 (2) that an application for leave is made by Originating Summons ex parte many leave applications are contested by other respondents apart from the State. Unlike the situation in the UK where judicial review procedures and processes are advanced and principles are refined, judicial review processes and principles are undergoing development. In the circumstances, it would cause grave uncertainty and cause chaos and confusion in the administration of public authorities and tribunals if an order for stay of proceedings or decisions and interim relief were allowed to be made before leave to apply for judicial review is granted or even before judicial review proceedings are commenced. For this reason I do not think this Court should slavishly follow the decision in Home Office, especially without regard to the statutory authority which RSC Ord 53 r 3 (10) has received in UK and changes to the practice under RSC O 53 r3 (10) brought about by Supreme Court Practice 1993. The practice set out in Kensington is consistent with our r 3 (8) and it should be adopted by this Court. A strict application of O 16 r 3 (8) is imperative to do justice to all interested persons who are affected by the judicial review so that they are given an opportunity to be heard on an application for stay or interim injunctive relief in an application that is properly or validly instituted before the Court and which confers jurisdiction in the Court to grant the relief sought. This can only be achieved by a strict application of O 15 r 3 (8).

34. Does s 155 (4) of the Constitution confer a primary power on this Court to grant a stay or other interim relief before leave to apply for judicial review is granted? In my view s 155 (4) of the Constitution is not applicable to O 16 r 3 (8). That section is not the source of primary jurisdictional power. The Court’s primary power or jurisdiction is given by O 16 r 3 (8) of the National Court Rules. Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. The National Court Rules which contains O 16 is a subordinate legislation made by judges under their rule-making power given by s 184 of the Constitution and s.8 and s.9 of the National Court Act (Ch 38) and it falls within the definition of law in s.9 of the Constitution: see s.9 (c) & (e). On a matter of practice and procedure of Court, and more specifically in respect of a procedural provision which confers jurisdiction on the Court, the rules may confer itself jurisdiction and prescribe the ambit of that jurisdiction and the circumstances in which that jurisdiction may be exercised. In my view, in relation to the Court’s jurisdiction to grant a stay or interim relief in a judicial review proceeding, Order 16 is the source of primary jurisdictional power. Under O 16, a plaintiff has no right to seek judicial relief unless leave is granted. No such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or for interim relief and the Court’s jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granted leave. Upon the grant of leave and filing of the application for judicial review, the Court assumes jurisdiction to deal with any interlocutory applications. Only then, the discretionary power under s 155(4) of the Constitution may be invoked by the Court or a party, to tailor remedies in addition to those provided by r 3(8), in aid of the substantive application for judicial review. Even then, s 155 cannot be applied to do anything contrary or inconsistent with the provisions of O 16 r 3 (8).

35. For these reasons, I hold that pursuant to O 16 r 3 (8), the Court has no jurisdiction to grant stay or other interim relief in a judicial review matter brought under O 16 before the grant of leave to apply for judicial review but only after leave is granted.

36. Having reached this view, it is necessary to outline the procedure for application for leave and application for stay or other interim relief because experience shows that practitioners are mixing up the procedure when filing those applications and getting the procedure confused.

37. In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 and O 16 r 5 (2).

38. The Statement filed under r 3 (3) should plead, amongst other matters required to be pleaded, the following:

(1.) a concise description of the decision made or required to be made, the subject of the review including particulars of the decision-maker, the statutory provision under which the decision was made or required to be made but failed to make; and the date of the decision;
(2.) a succinct summary of the relevant factual circumstances;
(3.) an accurate description of the relief sought; and
(4.) the precise grounds on which the relief is sought.
(5.) An affidavit verifying the facts relied upon must also be filed.

39. The application for leave is strictly heard ex parte except the State which is given a right to be heard by s 8 of the Claims By and Against the State Act 1996.

40. In a case where a plaintiff intends to apply for a stay or any other interim relief in an urgent case, he or she may file a separate Motion at the time of filing the Originating Summons but that Motion is put on hold pending the determination of the application for leave. The Motion must be served on the respondents or other interested parties whose rights may be directly affected by the interim relief, so that such persons can be heard on the application. The Court deals with the Motion after leave to apply for judicial review is granted and it is heard inter partes.

41. Upon grant of leave, a Motion seeking substantive relief under O 16 r 5 (1) should be filed and served. An order for stay or interim relief may be sought in the same Motion or in a separate Motion. It is a fundamental requirement of natural justice and principles of fairness equity and it is highly desirable that the Motion seeking stay or interim relief should be served on the respondents and other interested persons except in very urgent cases where service of the Motion is dispensed with by the Court. The procedure for seeking urgent ex parte interim relief is set out in r 5 of the Motion Amendment Rules 2005, which applies to judicial review proceedings by virtue of r 13 (1) of Judicial Review Amendment Rules 2005.

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Manu & Associates: Lawyers for the Plaintiff
Blake Dawson Waldron Lawyers: Lawyer for the first Defendant
Blake Dawson Waldron Lawyers: Lawyer for the Second to fifth Defendants
Solicitor General: Lawyer for the sixth Defendant