Gelu v Somare [2009] PGNC 21; N3647 (16 April 2009)

N3647

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 654 OF 2008

BETWEEN:

ZACHERY GELU
First Applicant

AND:

ISAAC LUPARI
Second Applicant

AND:

TAU LIU
Third Applicant

AND:

SIR MICHAEL T. SOMARE, MP, PRIME MINISTER & APPOINTING
AUTHORITY OF THE COMMISSION OF INQUIRY INTO THE
DEPARTMENT OF FINANCE
First Respondent

AND:

MAURICE SHEEHAN, AS CHIEF COMMISSIONER AND JUSTICE CATHY
DAVANI AND DON MANOA AS COMMISSIONERS COMPRISING THE
COMMISSION OF INQUIRY INTO THE MANAGEMENT GENERALLY OF
PUBLIC MONIES BY THE DEPARTMENT OF FINANCE
Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J.
2009: 13th March,
: 16th April

PRACTICE AND PROCEDURE - Application to Dismiss Judicial Review Proceeding for Want of Prosecution – Order 4 Rule 36 National Court Rules - whether appropriate Rule used for application to dismiss judicial review proceeding - likelihood of prejudice caused to defendants by delay in prosecuting proceedings to be considered - onus upon applicants to prosecute their claim especially in judicial review proceedings - applicants not properly prosecuting proceeding with due despatch – Application to dismiss proceedings for want of prosecution granted

Facts:

The applicants applied for leave to judicially review a decision of the Prime Minister. That decision was to appoint a Commission of Inquiry concerning "the Management Generally of Public Monies by the Department of Finance". This court granted leave on the 17th November 2008. The respondents apply for this proceeding to be dismissed for want of prosecution or for failure to comply with a direction of this court.

Held:

1. An application to dismiss judicial review proceedings is able to be made pursuant to Order 4 Rule 36 National Court Rules.

2. As judicial review proceedings are concerned with administrative decisions and the exercise of administrative functions there is a legitimate public interest in having them finalised as soon as possible.

3. Judicial review applications should be dealt with expeditiously and delays which would not be considered lengthy in the context of trial proceedings are likely to be considered so in judicial review proceedings.

4. The applicants have not properly prosecuted this proceeding with due despatch and the reasons given for delay are not satisfactory.

5. This proceeding is dismissed for want of prosecution.

Cases cited:

Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444
Joseph Yonge v. Luke Niap (2001) N2101
Kelly Kerua v. Council Appeal Committee of the University of Papua New Guinea (2004) N2534
Rumpia v. Buri (2006) N3035
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:

Mr. N. Tame, for the Applicants
Mr. I.R. Molloy, for the Respondents

16 April, 2009

1. HARTSHORN J: The applicants applied for leave to judicially review a decision of the Prime Minister. That decision was to appoint a Commission of Inquiry (Commission) concerning "the Management Generally of Public Monies by the Department of Finance". This court granted leave on the 17th November 2008.

2. The respondents (State) apply for this proceeding to be dismissed for want of prosecution or for failure to comply with a direction of this court.

Want of prosecution

3. The State applies pursuant to Order 4 Rule 36 National Court Rules and Order 16 Rule 13(2) Judicial Review (Amendment) Rules 2005 for the proceeding to be dismissed for want of prosecution. I will consider the application under Order 4 Rule 36 first. It is relevantly as follows:

"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 dispatch, the Court may stay or dismiss the proceedings."

4. As to Order 4 Rule 36, Counsel for the applicants submits that:

a) the rule does not apply as judicial review proceedings are governed exclusively by Order 16 of the National Court Rules and that Order 4 Rule 36 applies to originating summons proceedings other than judicial review.

b) there has not been delay on the part of the applicants. The applicants have taken all necessary steps to have the proceeding determined and it is the fault of the staff of the National Court in not fixing the matter for hearing.

Order 4 Rule 36 - judicial review proceedings

5. Counsel for the State submits that Order 4 Rule 36 National Court Rules is able to be relied upon in judicial review proceedings and that the cases of Joseph Yonge v. Luke Niap (2001) N2101 and Rumpia v. Buri (2006) N3035 are on point. Yonge’s case (supra) was a successful application to dismiss an originating summons application for leave to apply for judicial review pursuant to Order 4 Rule 36 National Court Rules. Kandakasi J. stated that:

"For want of prosecution generally of proceedings commenced by Originating Summons, the provisions of Order 4 Rule 36 are relevant."

6. Then in Rumpia’s case (supra), Kirriwom J. dismissed judicial review proceedings for want of prosecution after leave to apply for judicial review had been granted, pursuant to Order 4 Rule 36.

7. The Supreme Court in Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444, stated at 450 that Order 16 of the National Court Rules:

"is an exclusive procedure provided by the Rules (O16 r1)."

In Peter Makeng v. Timbers (PNG) Ltd (2008) N3317, Injia DCJ (as he then was) stated that:

"It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v. Hamidian Rad (supra). Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16.

8. The Hamidian Rad case (supra) concerned the proper procedure to be used when seeking an order in the nature of certiorari and so is not directly on point. Similarly the comments in Makeng’s case (supra) are in my respectful view, a correct statement as to the rules to be followed when applying for leave and for judicial review but not as to applications to determine judicial review proceedings.

9. As an aside, if it were otherwise, there would not have been any rule that could have been relied upon to determine judicial review proceedings before the amendment to the National Court Rules in 2005 apart from the court's inherent jurisdiction.

10. There is a further argument that as an application for judicial review is made by notice of motion pursuant to Order 16 Rule 5 National Court Rules after leave is granted, Order 4 Rule 36 does not apply as it only applies to proceedings commenced by originating summons. In my view this argument is not correct as when application for judicial review is made by notice of motion it is made in the proceedings that were commenced by originating summons that sought leave.

11. I am supported in this view when regard is had to Order 4 Rule 1 National Court Rules which is as follows:

"Subject to the provisions of any Act, regulations or rules but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons."

12. The word ‘Part’ refers to "Part 2 - Civil Jurisdiction" which is immediately before Order 3 in the National Court Rules. Part 2 includes Orders 3 to Order 17, including Order 16.

13. I note also that Order 16 was amended in 1985 to replace ‘originating summons’ and ‘summons’, with ‘notice of motion’.

14. Order 4 Rule 4 provides that:

"Proceedings may be instituted by motion, only if they relate to an interlocutory application."

15. Order 4 Rule 37 provides that:

"An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion."

16. It is apparent therefore, that the amendment to Order 16 in 1985, replaced the mode of making an application for judicial review after leave has been granted, from a document that commences proceedings to one that is used to make an interlocutory application.

17. For the above reasons, I am satisfied that Order 4 Rule 36 National Court Rules can be relied upon in respect of applications to dismiss judicial review proceedings.

Due Despatch

18. Counsel for the applicants submits that since leave was granted on 17th November 2008, they have complied with all directions of this court and diligently prosecuted the matter, specifically:

• 18th November 2008 - the notice of motion for judicial review was filed and the application for interim relief argued.
  
• 21st November 2008 - interim relief application refused.
  
• 2nd December 2008 - attended for directions hearing but not listed.
  
• 8th December 2008 - matter adjourned pending hearings in applicants’ Supreme Court appeal against refusal of stay.
  
• 26th January 2009 - wrote to Registrar requesting the matter be placed before a judge for directions and the allocation of a hearing date.
  
• 5th February 2009 - in other Supreme Court proceedings, the Chief Justice directed that the applicants’ lawyer write to the Registrar or the Associate to the Judicial Review Judge for February, for an expedited hearing.
  
• 6th February 2009 - wrote to the Listings Clerk requesting a hearing.
  
• 10th, 18th February 2009 - wrote to the Associate to the Judicial Review Judge requesting a hearing, but that no reply was received to the letters until 9th March 2009 - when advice was received of the hearing date for the application by the State for the proceeding to be dismissed for want of prosecution.
  

19. Counsel for the applicants also submits that they had been involved in other Supreme Court appeal proceedings, and that the State has contributed to delays in the National and Supreme Court proceedings by "constantly dragging" the applicants into arguing various objections to competency in the Supreme Court proceedings and thus protracting all of the proceedings.

20. Counsel for the State submits that since leave to apply for judicial review was granted, the applicants have been continually seeking interim relief in the National and then Supreme Courts but have not progressed and have been less interested in progressing, this proceeding to a substantive hearing. This, it was submitted, is evidenced by the fact that whenever the applicants wished to proceed, they have been very efficient in obtaining hearing dates, there having been numerous hearings in relation to the applicants’ Supreme Court appeals, in direct contrast to the lack of progress in obtaining a hearing for the substantive judicial review hearing.

21. Specifically it was submitted on behalf of the State that there have been 3 phases of action since leave was granted. The first, between 17th November 2008 to 6th February 2009, during which time hardly anything was done to progress the proceeding to a substantive hearing, the focus of the applicants being upon obtaining interim orders from the Supreme Court.

22. The second phase between 6th and 18th February 2009 saw some activity when letters were written to the Registry and the Associate to the Judicial Review Judge. Since then, the third phase, there was no activity to progress the matter until the application to dismiss was served. In total, it is submitted, there were only 12 days of activity on behalf of the applicants to progress this proceeding, in a period of 4 months since leave for judicial review was granted.

Law

23. The law as to Order 4 Rule 36 National Court Rules when made in proceedings generally is well settled in this jurisdiction and does not require repeating. The majority of Order 4 Rule 36 cases concern proceedings other than judicial review.

24. The phrase "due despatch" in Order 4 Rule 36 National Court Rules, depends on the circumstances of each case. In Yonge’s case (supra), Kandakasi J. stated that in relation to judicial review proceedings:

"The onus is thus placed in my view on a plaintiff to take every step to prosecute his claim with due despatch..... The court is vested with a discretion to dismiss proceedings that do not get prosecuted promptly...., judicial review, by their (sic) very nature, require prompt action.... The Defendants are entitled to get on with their duties...."

25. Similarly, in Rumpia’s case (supra), Kirriwom J. said:

Judicial review is a special procedure that circumvents conventional process or procedures because of exceptional circumstances surrounding a given case and avails jurisdiction to a party who has either lost his right or his (sic) prohibited by Statute from going further through the normal appeal process. Because of this special nature of its jurisdiction, there is a degree of urgency in the matter being disposed of expeditiously. This special nature of judicial review and the urgency it demands is reinforced by the National Court Rules in Order 16 rule 4(1)......."

26. I respectfully agree with the above statements and am of the view that the following additional factors are relevant:

a) in judicial review proceedings the court reviewing does not usually make a decision that is of a final nature as a successful review application usually results in the initial decision being reconsidered by the relevant decision maker. This in effect, means that the court decision granting the review is not the final step in the resolution of the actual dispute.

b) judicial review applications are not as complex as trials and require less gathering of evidence and other preparation.

c) judicial review proceedings are concerned with administrative decisions and the exercise of administrative functions and there is a legitimate public interest in having them finalised as soon as possible. This is reflected in Order 16 Rule 4(1) National Court Rules, which is specifically concerned with delay.

d) the likelihood of prejudice caused to defendants by the delay in prosecuting proceedings should be considered. In this instance, in my view, that includes the potential for prejudice to the efficient functioning of the Commission, to the persons who may be affected by the Commission’s operation and generally the overall detriment to good administration that is likely to occur by such delay.

27. The above factors lead me to the view that judicial review applications should be dealt with expeditiously and that delays which would not be considered lengthy in the context of trial proceedings are likely to be considered so in judicial review proceedings.

28. I find support in the case of Kelly Kerua v. Council Appeal Committee of the University of Papua New Guinea (2004) N2534, where Injia DCJ (as he then was), as to when a substantive hearing is to take place after leave has been granted said:

"A reasonable or practical timeframe is not infinite number of weeks or months.... I am speaking of a week or to a few weeks, and in exceptional cases a month or two at most."

Here, there have been no submissions made and no evidence given to suggest that this is an exceptional case.

29. As to the submission on behalf of the applicants that they had been involved in exercising their rights of appeal to the Supreme Court and that this may have contributed to a delay in this proceeding, this is not a factor that carries much weight in my view. The onus is upon the applicants to prosecute their claim, especially in judicial review proceedings. If the lawyer engaged by the applicants is too busy or does not have sufficient resources, then with his client's approval, he should brief out or the client should engage other lawyers.

30. As to the submission that it was the fault of National Court staff or the Associate to the Judicial Review Judge in not setting the matter down for hearing, it is all too easy to blame Court staff. It is not appropriate in my view, for an applicant to sit and wait for a reply. It was always open to the applicants to file a notice of motion seeking further directions or a hearing date if they believed that by writing to the Registry or the Associate they were not obtaining satisfaction.

31. It is noteworthy that the applicants do not appear to have had difficulty in obtaining hearings for their various applications for interim relief in other proceedings over the same period of time.

32. As to the submission that the State had contributed to the delay by requiring the applicants to argue various applications, assuming this to be so for present purposes only, again, if the lawyer for the applicants is too busy or does not have sufficient resources then he should brief out or other lawyers should be instructed.

33. As to the submission that all directions issued by the court have been complied with, assuming this to be so for present purposes only, the onus is still upon the applicants to prosecute their claim. Where no specific date has been allocated, it is incumbent upon the applicants to take action to secure a date, whether by written request, or if that fails, by notice of motion.

34. After considering all of the above, I am of the view that given the nature of judicial review proceedings and particularly this matter, the applicants have not properly prosecuted this proceeding with due despatch and I am not satisfied with the reasons given for the delay. Judicial review proceedings should be dealt with and prosecuted expeditiously because of their very nature. Delays that would be tolerated in trial proceedings should not be tolerated in judicial review proceedings. The Commission has been sitting since 18th September 2008 and over 40 witnesses have been called and have submitted to its jurisdiction. It is in the public interest that judicial review proceedings that could affect the operations of the Commission and the persons affected by its operation be resolved as soon as possible. This has not occurred. The application of the State for the proceeding to be dismissed for want of prosecution pursuant to Order 4 Rule 36 National Court Rules is granted.

35. Given my ruling, it is not necessary to consider the application of the State under Order 16 Rule 13(2) Judicial Review (Amendment) Rules 2005, however I am satisfied that for the reasons already given, the State is entitled to succeed under Order 16 Rule 13(2)(b) which provides that the court may summarily determine the matter on application by a party. The factors to be considered by this court in determining such an application in my view would include those already considered.

36. The applicants are to pay the costs of the proceeding to the respondents.

_______________________________________________________

N Tame Lawyers: Lawyers for the Applicants
Office of the Solicitor-General: Lawyers for the Respondents