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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 587 OF 2015
BETWEEN:
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
Applicant
AND:
THE PUBLIC SERVICE COMMISSION CHAIRMAN – DR. PHILIP KEREME
First Respondent
AND:
JACK KAVIE
Second Respondent
Kokopo: Anis AJ
2017: 21st April
2017: 8th May
JUDICIAL REVIEW – Court issued direction - parties to explain why matter should not be summarily dismissed - Order 16 Rule 13(13)(2)(b)(b) of the National Court Rules - allege abuse of process and breach of mandatory provisions under Order 16 of the National Court Rules
PRACTICE & PROCEDURE – Leave granted - no substantive motion filed for judicial review under Order 16 Rule 5 of the National Court Rules - no statement filed under Order 16 Rule 3(2)(a) of the National Court Rules before and after leave was granted - implications and consequences discussed
PRACTICE & PROCEDURE – Court's discretionary power to dispense with or amend court documents - Order 1 Rule 7 & 8 and Order 16 Rule 13(14) of the National Court Rules - no formal application before the Court - request made through submission
Case cited:
Alex Timothy v. Hon Francis Marus (2014) SC1403
Henry Bailasi v. Rigo Lua (2013) N5145
Joshua Kalinoe v. Paul Paraka (2014) SC1366
Lawrence Sausau v. Joseph Kumgal (2006) N3253
Les Curlewis and Ors v. David Yuapa (2008) SC1274
Michael Anis v. David Ericho and Or (2006) N3040
Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303
Paul Saboko v. Commissioner of Police (2006) N2975
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Peter Tupa v. Commissioner of Police (2007) N5481
Pombros Maliu v. Samuel K Geno (2013) N5144
Sam Koim v. Peter O'Neil (2014) N5694
Counsel:
Mr W Mahaut, for the Applicant
Mr R M Simbil, for the First Respondent
Mr R Asa, for the Second Respondent
RULING
8th May, 2017
1. ANIS AJ: This is a judicial review matter. His Honour Justice Higgins granted leave to apply for judicial review on 6 November 2015.
2. On 10 March 2017, the matter returned to Court for directions hearing. I inquired with counsel of the status. After discussions with counsel and perusal of the Court file, it became apparent the applicant may not have filed a substantive notice of motion for judicial review. Also apparent was the absence of a Statement that was required under Order 16 Rule 3(2)(a) of the National Court Rules (the Statement). The applicant confirmed then that it did not file the Statement.
3. Following that, the Court issued this direction in particular, Parties to appear with written submissions to address the Court on why this proceeding should not be dismissed for abuse of process and want of compliance with the fundamental requirements under Order 16 namely failure to file a Statement under Order 16 Rule 3(2)(a) and Order 16 Rule 5(1), of the National Court Rules (Court Direction).
4. The matter returned for arguments on 21 April 2017. Parties presented their submissions both written and oral. During the course of the hearing, the applicant and the second respondent requested time to file further submissions. As for the applicant, counsel made the request after the Court pointed out that the material issues were not addressed in the applicant's written submission that was filed on 20 April 2017. As for the second respondent, counsel said he was yet to file his client's written submission. But in a brief oral submission, the second respondent supported and endorsed the submissions of the first respondent.
5. At the end of that hearing, I issued the following directions: (i) The plaintiff is to file and serve its supplementary submission before or by 25 April 2017. (ii) The respondents are to file
and serve any responding submissions (if required) before or by 28 April 2017. (iii) The Court shall reserve its ruling thereafter
to a date to be advised. (iv) Time is abridged.
6. This is my ruling.
ISSUES
7. The issues are as follows: (i) What power did the Court invoke to issue the Court Direction? (ii) Is there a judicial review pending before the Court given that the applicant did not file a notice of motion for judicial review after leave was granted? (iii) What is the ramification(s) given the fact that the applicant has also not filed the Statement? (iv) Whether the applicant's invitation to the Court to exercise its powers under Order 1 Rules 7 & 8 and Order 16 Rule 13(14) of the National Court Rules, is properly before the Court for consideration.
SOURCE
8. What power did I use to issue the Court Direction and list the matter down for possible summary determination? This was not a contested issue. However, I consider it necessary to include as a preliminary matter in my judgment for clarity since the referral for possible summary determination of the matter was the Court's own.
9. The relevant provision of course is Order 16 Rule 13(13)(2)(b)(b) of the National Court Rules. The said rule reads, The Court may summarily determine a matter....on the Court's own initiative [See case: Alex Timothy v. Hon Francis Marus (2014) SC1403]. The Court Direction I issued on 10 March 2017 was based on this rule. The Court also gave sufficient time to the parties to prepare. I also extended time after the hearing on 21 April 2017, to allow the parties to file further supplementary submissions.
APPLICANT
10. I refer to the applicant's supplementary submission filed on 26 April 2017. The applicant did not contest the material facts. Firstly, it admits to not filing the Statement. Secondly, it admits to not filing a substantive notice of motion for judicial review after the grant of leave on 6 November 2015. Thirdly, it admits to seeking both leave and substantive judicial review relief in its amended notice of motion that was filed on 30 October 2015 (amended notice of motion) before the hearing of the leave application.
11. The applicant however requests the Court to exercise its powers under Order 1 Rule 7 and 8 and Order 16 Rule 14, of the National Court Rules, to dispense with the requirements under the rules, and also to allow it to amend its court documents. There is no Order 16 Rule 14 but it seems clear that the applicant is referring to Order 16 Rule 13(14) of the National Court Rules.
12. The applicant cites two (2) case authorities to support its contentions. The first case is Sam Koim v. Hon Peter O'Neil (2014) N5694. The second case is Les Curlewis and Ors v. David Yuapa (2008) SC 1274. Both cases say on point that the National Court's function is to do justice and that it cannot do that if it applies the rules rigidly or without flexibility.
RESPONDENTS
13. The respondents argue that the matter should be summarily dismissed. They firstly refer to Order 16 Rule 13(13)(2)(b)(b) and say the Court has powers therein to summarily dismiss this judicial review.
14. The respondents say the matter should be summarily dismissed because: (i) they say the originating summons and the amended originating summons both plead leave and substantive relief and do not plead the decision that is being challenged; (ii) they say the substantive notice of motion was not filed after leave was granted; they refer to the amended notice of motion and say that even if the applicant were to rely on it, the amended notice of motion is incompetent because it was filed at the same time as the amended originating summons before leave was granted; and (iii) they say the Statement has not been filed.
15. In support, the respondents rely on these case authorities: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303; Les Curlewis and Ors v. David Yuapa (supra) and Sam Koim v. Hon Peter O'Neil (supra). The cases cover various judicial review principles. I will consider them in my judgement where necessary.
MOTION FOR JUDICIAL REVIEW?
16. The applicant filed its originating summons on 11 September 2015. On the same day, it also filed a notice of motion. The relief in the originating summons and the notice of motion were identical. Both documents sought leave to apply for judicial review and substantive relief. On 30 October 2015, the applicant filed an amended originating summons and the amended notice of motion. Again, both documents sought leave and almost identical substantive relief.
17. Leave to apply for judicial review was granted on 6 November 2015.
18. What does the law say about applying for judicial review? I firstly refer to the National Court Rules. Order 16 Rule 5 reads, Subject to Sub-section 2, when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court. Secondly, Order 16 Rule 13(5)(1) reads, Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following....Filing of Notice of Motion and supportive affidavits under Order 16 Rule 5(1)..... As for the case law, I refer to the Supreme Court case Alex Timothy v. Hon Francis Marus (supra). The Court held and I quote in part, Though Order 16 and Order 4 proceedings are both commenced by originating summons, they are distinct in that a prospective applicant in Order 16 Judicial Review proceedings, seeks leave to bring such application by way of an Originating Summons and it is only after grant of leave that a substantive application for judicial review is brought in a separate application by way of Notice of Motion, a process peculiar only to judicial review....(Underlining is mine). I also refer to the Supreme Court case Joshua Kalinoe v. Paul Paraka (2014) SC1366. At paragraph 26, the Supreme Court held and I quote in part, If leave for judicial review is granted, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5)..... These two (2) Supreme Court cases have acknowledged and derived some of their principles from the case Peter Makeng v. Timbers (PNG) Ltd (supra).
19. So the substantive notice of motion for judicial review must be filed soon after leave is granted. In the present case, let me address the amended notice of motion. It was filed together with the amended originating summons on 30 October 2015. Leave to apply for judicial review was granted on 6 November 2015, which was the return date of the amended notice of motion. So I ask myself this. Can this Court treat the amended notice of motion as a substantive notice of motion that is required under Order 16 Rule 5(1) of the National Court Rules? Based on Order 16 Rule 5(1) and the case law, my answer is, "no".
20. Let me illustrate. Judicial review has two sets of proceedings. The first set of proceeding is to seek leave and the vehicle or platform for that is an originating summons [Order 16 Rule 3(2)]. The second set of proceeding is to seek judicial review and the vehicle or platform for that is a notice of motion [Order 16 Rule 5(1)]. The two (2) documents (i.e., originating summons and notice of motion) under the two (2) sets of proceedings will bear the same court file number. I think this is where most confusion arises between counsel and litigants. They think or are under the impression that because the Court file numbers are the same, the two sets of judicial review proceedings (i.e., first commenced by originating summons and second by notice of motion) is actually one Court proceeding that is divided into two stages. That understanding, in my opinion, is wrong. In my view, the correct understanding should be this. An originating summons and a substantive notice of motion filed in a judicial review are related but are two distinct originating processes. They are linked together by the provisions under Order 16 of the National Court Rules. The Supreme Court in Alex Timothy v. Hon Francis Marus (supra) held on point at paragraph 17 of its judgment. I quote in part where it said, In an Order 16 Originating Summons, a prospective applicant for judicial review must firstly obtain leave to pave the way for the judicial review. If leave is granted, the Originating Summons is then determined. As is the mandated process, once leave is granted, the action is then commenced by an application for judicial review by way of a Notice of Motion. Upon grant of leave for judicial review and upon filing a notice of motion instituting the substantive application, the Originating Summons has already been determined. It is wrong to seek to apply to dismiss the Originating Summons as if it were still alive and pending to be tried. (Bold lettering is mine).
21. In the present case, the applicant's amended notice of motion seeks the following:
22. I have answered "no" to the query of whether I can regard the amended notice of motion as the substantive judicial review notice of motion or application. Based on the facts, the rules, and the case law, I will summarise my findings. Firstly, I find that since the amended notice of motion was filed together with the amended origination summons for leave to apply for judicial review, it ceased to exist when the amended originating summons (i.e., the first set of judicial review) was determined on 6 November 2015. Secondly, assuming that I am wrong and the amended notice of motion has in fact survived after leave, it would still be invalid and amount to abuse of court process because from the time it was drafted and filed up to the present day, the applicant did not file a Statement. The substantive notice of motion for judicial review cannot be drafted and filed without the Statement. This brings me straight into the next sub-heading of my judgment.
STATEMENT - ORDER 16 RULE 3(2)(a)
23. The Statement is required under Order 16 Rule 3(2)(a) of the National Court Rules. The rule reads:
(2) An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported-
(a) by a statement, setting out the name and description of the applicant, the relief sought and the grounds on which it is sought; and
(b) by affidavit, to be filed before the application is made, verifying the facts relied on.
24. Not filing the Statement is fatal to the applicant's judicial review. Let me explain. The Statement was supposed to have been filed during first set of this judicial review proceeding. As it is, the Statement was not filed in the first set of this judicial review. And the first set of this judicial review has been determined. Even to date, no Statement has ever been filed. Without the Statement, it means that this judicial review, if it exists, lacks (i) the pleaded facts, (ii) the grounds of review and (iii) the proposed relief. The applicant may have obtained leave to apply for judicial review. However, without the Statement, it is unattainable for the applicant to prepare and file a substantive notice of motion. The applicant cannot derive its proposed relief from the amended originating summons nor the amended notice of motion. I must remind myself that a Statement that is filed under Order 16 Rule 3(2)(a) is equivalent or comparable to a statement of claim that is filed under a writ of summons (see case: Lawrence Sausau v. Joseph Kumgal (2006) N3253). It is a critical document that must be filed before leave is sought; it sets the parameters of judicial review [see cases: Henry Bailasi v. Rigo Lua (2013) N5145; Paul Saboko v. Commissioner of Police (2006) N2975; Peter Tupa v. Commissioner of Police (2007) N5481; Pombros Maliu v. Samuel K Geno (2013) N5144 and Michael Anis v. David Ericho and Or (2006) N3040].
REQUEST FOR EXERCISE OF DISCRETION
25. Despite the applicant's admissions (i.e., to filing the amended notice of motion before leave was granted; to not filing a new notice of motion for judicial review and to not filing the Statement), the applicant argues that the situation can be rectified without the Court summarily determining the matter.
26. The applicant says the Court should pursuant to Order 1 Rule 7 and 8 and Order 16 Rule 13(14) of the National Court Rules, order amendments and dispense with the strict requirements of the rules, which it has or had overlooked in this judicial review. The applicant says the Court should not be too rigid with its application of the National Court Rules in the matter. The applicant says the Court should, instead of summarily determine the matter, issue the following orders:
5.1 The applicant in this matter be allowed to make amendments to the Amended Originating Summons according to the requirements of Order 16 that is:
5.2 Amending the Originating Summons to be particularized accordingly;
5.3 Time as Court deems fit to file Statement in Support under Order 16 Rule 3(2)(a) of the National Court Rules.
5.4 Time as Court deems fit to file Affidavit under Order 16 Rule 3(2)(b).
5.5 Direction as Court deems fit for Applicant to file substantive Notice of Motion.
27. I reject the submission. The main reason is that there is no proper application before the Court. The applicant is represented by counsel and, with respect, should have filed and made a proper application to the Court. The Court Direction was issued on 10 March 2017. At that same time, the Court set the matter down for the summary determination hearing at 9:30am on 21 April 2017. The applicant had one (1) month 11 days to prepare. Ample time was given to the parties to prepare themselves like for example to be able to file a notice of motion to seek orders under Order 1 Rule 7 and 8 or Order 16 Rule 13(14) as the applicant is attempting to do here. That said, I am not saying that that would have been the correct approach to take. The applicant has just made these requests in its supplementary submission. Without a proper notice of motion formally made before the Court, I find that the arguments are not properly before me for consideration.
28. The second reason is substantive in nature. Based on admission by the applicant and on my finding ruling out the possibility that the amended notice of motion may be a substantive notice of motion, it means that there is no pending judicial review before this Court. It means the second set of the judicial review proceeding has never commenced. This Court, in my opinion, therefore has no basis or jurisdiction to continue any further with the matter. Without any originating process filed, I have no powers now to issue directions, exercise discretion or hear any interlocutory applications that may be made by the parties. That of course includes the applicant's request herein.
SUMMARY
29. I firstly find that the applicant has abused the Court process when it had applied for leave to apply for judicial review without filing a Statement. I also find that to be a fundamental breach under Order 16 Rule 3(2)(a) of the National Court Rules. Secondly, I find that the applicant has abused the Court process when it had tried to rely on the amended notice of motion as if it was a motion filed under Order 16 Rule 5 of the National Court Rules. I also find that the applicant has breached the provisions under Order 16 Rule 5 of the National Court Rules.
30. I find that the amended notice of motion ceased to exist in the first set of this judicial review proceeding after the amended originating summons was determined on 6 November 2015. With the amended notice of motion ruled out by the Court, I find that despite the fact that the applicant has obtained leave to apply for judicial review on 6 November 2015, there is no application for judicial review pending before this Court. I find that because the breach of Order 16 Rule 3(2)(a) of the National Court Rules was fundamental, it is not possible for the applicant to now draft and file a substantive notice of motion for judicial review or from ever continuing onto the second set of this judicial review.
31. In conclusion and as for the issues, let me say these. In relation to the first issue, What power did this Court invoke to issue the Court direction?, the answer is "Order 16 Rule 13(13)(2)(b)(b) of the National Court Rules." In relation to the second issue, Is there a judicial review pending before the Court given that the applicant did not file a notice of motion for judicial review after leave was granted?, I would answer "there is no substantive judicial review pending before this Court." In relation to the third issue, What is the ramification(s) given the fact that the applicant has also not filed a Statement under Order 16 Rule 3(2)(a) of the National Court Rules?, I would say "it means that it is not possible for this judicial review to proceed beyond the leave stage despite the fact that leave has been obtained." And in relation to the fourth issue, Whether the applicant's invitation to the Court to exercise its powers under Order 1 Rules 7 & 8 and Order 16 Rule 13(14) of the National Court Rules, is properly before the Court for consideration, I would answer "no."
COSTS
32. As the Court Direction was based on the Court's own initiative, I will not make an order for costs against a party. I will order each party to bear their own costs.
THE ORDERS OF THE COURT
I make the following orders:
The Court orders accordingly.
_______________________________________________________________
East New Britain Provincial Government-In-House Lawyers: Lawyers for the Applicant
Public Service Commission - In-House Lawyers: Lawyers for the First Respondent
Warner Shand Lawyers: Lawyers for the Second Respondent
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