N5853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 558 OF 2013

BETWEEN:

STEVEN KAPERA
Plaintiff

AND:

TOM KULUNGA, OBE, DSP, QPM, as the Police Commissioner for ROYAL PAPUA NEW GUINEA CONSTABULARY
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Nablu, AJ
2014: 07, 16, October, 06 November

JUDICIAL REVIEW – Application to summarily determine a judicial review application – Order 16 Rule 13 (2)(a)(i) of the National Court Rules (Judicial Review (Amendments) Rules) – Whether Plaintiff can apply for summary determination of the application for judicial review – Application for judicial review is to be made by Notice of Motion filed pursuant to Order 16 Rule 5of the National Court Rules – Application refused.

Cases cited:
Papua New Guinea Cases
Aisi Iuma Bore v. Clement Malaisa [2013] PGNC 93; N5274
Louis Medaing v. Minister for Lands and Physical Planning (2008) N3952
In the Application for Judicial Review commenced by Originating Summons;
Miai Larelake v. Hon Havila Kavo (2009) N3809
Zachery Gelu v. Michael T Somare (2009) N3647
Mision Asiki v. Manasupe Zurenouc (2005) SC 797
Dale Christopher Smith v. Minister for Lands (2009) SC 973
Open Bay Timber Limited & Anor v. Hon Lucas Dekena and Others (2013) N5109

Counsel
Mr. J. I. Cappo, for the Plaintiff
No appearance for the Defendants

RULING
6th November, 2014

1.	NABLU, AJ: The Plaintiff was granted leave to apply for judicial review of the decision of the Commissioner of Police (the First Defendant) in dismissing the Plaintiff from employment as a Police Inspector with the Police Force on 27th June 2011. The Plaintiff seeks orders in the nature of certiorari. He also seeks to be reinstated to his former substantive position and for his lost salaries to be backdated to the date of his dismissal.

2.	By way of a Notice of Motion, the Plaintiff seeks to summarily determine the matter pursuant to Order 16 Rule 1(2) National Court Rules and Order 16 Rule 13 (2)(a) and (b)(a) of the Judicial Review (Amendment) Rules 2005. The Plaintiff is seeking judicial review and the grant of the relief sought in the substantive matter.

3.	Leave to apply for judicial review was granted on 19th November 2013. The Notice of Motion pursuant to Order 16 Rule 5 was filed on 20th November 2013. In March 2014, the first directions were issued by the Court to progress the matter to a substantive hearing. The Plaintiff varied the Court directions on 2nd June 2014 and filed his affidavit on 11th June 2014. The Defendants did not comply with those directions. The Court Directions were further extended to 12th September 2014. Despite the extension, the Defendants did not comply with those directions.

4.	The Plaintiff seeks to summarily determine the judicial review application and relies on two grounds: 

(a)	the power of the Court to summarily determine an application for judicial review under Order 16 Rule 13(2)(a) and Order 16 Rule 13(2)(b)(a) of the National Court Rules (Judicial Review (Amendment) Rules); and

 (b) the Defendants failure to comply with Court directions.

5.	Rules 13 (2)(a) and 13(2)(b)(a) of the National Court Rules (Judicial Review (Amendment) Rules) states:

" a. 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 any other competency grounds.

 b. The Court may summarily determine a matter;

 (a) on application by a party;…"

6.	The Plaintiff's Lawyer submitted that Rule 13(2)(b)(a) should be invoked to summarily dispose of this matter, due to the Defendants' continuous failure to comply with court directions. He submitted that the Plaintiff's attempt to progress the application for judicial review to substantive hearing was frustrated by the Defendants' failure to comply with directions and lack of interest in defending the application.

7.	Mr Cappo submitted the case of Aisi Iuma Bore v. Clement Malaisa [2013] PGNC 93; N5274 as authority on summary determination of judicial review proceedings where the plaintiff failed to comply with Court directions. In that case, he submitted, the Court held that the pertinent issue before the Court is whether there has been a failure to comply with the Court's directions.

8.	If failure to comply has been established then the Court has discretion to exercise. In the exercise of the discretion, the Court can take into relevant considerations such as; the nature and extent of the failure to comply, whether there is a good explanation for the failure to comply, the conduct of the parties, and whether the interest of justice favour summary dismissal.

9.	I have read this case and other cases regarding summary disposal of judicial review proceedings, namely, Louis Medaing v. Minister for Lands and Physical Planning (2008) N3952, In the Application for Judicial Review commenced by Originating Summons; Miai Larelake v. Hon Havila Kavo (2009) N3809 and Zachery Gelu v. Sir Michael T Somare (2009) N3647. In those cases, the applications to summarily determine the application for judicial review were instituted by the Defendants. It was the Plaintiffs that failed to comply with directions issued by the Court. The Defendants relied on Order 16 Rule 13 (2) of the National Court Rules (Judicial Review (Amendment) Rules) and argued that the Plaintiff had failed to comply with the Court directions.

10.	 The law with regard to dismissal for failure to comply with Court directions is fairly settled. The Court's power to dismiss is discretionary. Before the exercise of the discretion the Court should take into account various considerations. The exercise of the discretion to dismiss will however depend on the circumstances of each case.

11.	 Turning to the cases before me, the Plaintiff seeks to summarily determine the matter. The Plaintiff seeks the substantive relief of the judicial review application. In essence, the Plaintiff by its notice of motion seeks "summary judgement" to be entered against the Defendants pursuant to Order 16 Rule 13 (2)(a) of the National Court Rules (Judicial Review (Amendment) Rules).

12.	 In my view, Judicial Review is concerned with the review of the exercise of administrative functions or acts. Following the grant of leave to apply for Judicial Review, it is a mandatory requirement that a notice of motion is filed in accordance with Order 16 Rule 5 of the National Court Rules. The application for judicial review is made pursuant to that Notice of Motion.

13.	 Furthermore, Order 16 Rule 9(1) of the National Court Rules states that:

"On the hearing of any summons under Rule 5, any person who desires to be heard in opposition to the summons, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the summons." (Emphasis mine).

14.	The nature of Judicial Review applications require that they should be progressed to a proper hearing of the substantive matter on its merits, before any relief is granted pursuant to Order 16. Order 16 Rule 5 of the National Court Rules is mandatory and requires that an application is made by way of Notice of Motion.

15.	There are two pertinent steps in the process of determining judicial review applications. Firstly, the Court must be satisfied that the Plaintiff has proven one or more of its grounds of review. Secondly, if it had proven one or more of its grounds of review, then the Court has the discretion to determine what is the appropriate remedy or relief to be granted (Mision Asiki v. Manasupe Zurenuoc (2005) SC 797; Dale Christopher Smith v. Minister for Lands (2009) SC 973; Open Bay Timber Limited & Anor v. Hon Lucas Dekena and Others (2013) N5109).

16.	Order 16 Rule 13(2) of the National Court Rules (Judicial Review (Amendment) Rules), in my view provides an avenue for the defendant, the Court or the Registrar to summarily dispose of the application where the Plaintiff has not diligently prosecuted the application for judicial review. The wording of the rule is clear. This rule does not provide the jurisdictional basis for the Plaintiff to apply for judicial review.

17.	Therefore, I am of the view, that the Plaintiff's application is misconceived and amounts to an abuse of process. That leads me to another question and that is whether the applicant in judicial review proceedings, have any recourse when the defendants conduct or continuous failure to comply with Court directions, frustrates the progress of the matter to substantive hearing. To answer that question, in such cases, the Court has the discretion to dispense with the requirements of the rules pursuant to Order 16 Rule 13(14) of the National Court Rules (Judicial Review (Amendment) Rules). The Plaintiff is at liberty to apply to the Court to dispense with the strict requirements of the rules. The Plaintiff can apply for orders to file the Statement of Facts and Legal Issues and Review Book without the Defendant's consent or input and progress the matter to substantive judicial review.

18.	 	For the foregoing reasons, the relief sought in the Plaintiff's Notice of Motion is refused. The matter should proceed expeditiously to substantive judicial review.

Court Orders
(1)	All relief sought in the Plaintiffs notice of motion filed on 2nd October 2014 is refused.
(2)	The matter is returnable on the next directions hearing date.
 
Ruling accordingly
M.S. Wagambie Lawyers: Lawyer for the Plaintiff
Solicitor General's Office: Lawyer for the Defendants