Akunai v O'Neil [2019] PGNC 342; N8125 (22 November 2019)

N8125

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 482 OF 2018

BETWEEN
SAMSON AKUNAI
Plaintiff

AND
PETER O’NEIL – PRIME MINISTER, IN HIS CAPACITY AS THE CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
TAIES SANSAN– ACTING SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND
GRACE SO’ON– ACTING NATIONAL EXECUTVE COUNCIL SECRETARIATE
Third Defendant

AND
PETER NUMU – GOVERNOR IN THE CAPACITY AS CHAIRMAN OF THE EASTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND
JOHN GIMISEVE – PROVINCIAL ADMINISTRATOR FOR EASTERN HIGHLANDS PROVINCIAL ADMINISTRATION
Sixth Defendant

Waigani: Gavara-Nanu J
2019: 24^th October & 22^nd November

PRACTICE & PROCEDURE – Judicial Review – National Court Rules; Order 16 rr 3 & 5 (1) – Substantive Notice of Motion – Being filed together with Originating Summons – Whether abuse of process.

PRACTICE & PROCEDURE – Judicial review – Appointment of Provincial Administrator – Substantive appointment by National Executive Council – Acting Provincial Administrator overlooked for substantive appointment – Powers of the National Executive Council.

PRACTICE & PROCEDURE – Judicial review - Actions of Provincial Executive Council reviewed – Actions of the National Executive Council not reviewed – Whether application for judicial review misconceived - Whether application for judicial review an abuse of process.

Cases Cited:

Application by Dr Kereme (2019) SC1781

Daki Mao v. Hon. Gibson Saonu & Others (2018) N7502

Innovest Ltd v. Hon. Patrick Pruaitch & Others (2014) N5949

Joshua Kalinoe v. Paul Paraka; Hon. Bire Kimisopa v. Paul Paraka (2014) SC1366

Peter Makeng v. Hon. Gibson Saonu & Others (2018) N7502

Counsel:

J. Abone, for the Plaintiff

H. Monei, for the First, Second, Third and Fifth Defendants

G. Lau, for the Fourth Defendant

P. Pato, for the Sixth Defendant

22^nd November, 2019

1. GAVARA-NANU J: Before the Court is an application by the fourth defendant (the applicant) made pursuant to a notice of motion filed on 4 September, 2019, seeking dismissal of this proceeding in its entirety for being incompetent and an abuse of process.

2. The application is supported by the State which is the fifth defendant and the sixth defendant who is the current Provincial Administrator for the Eastern Highlands Province.

3. The applicant claims the proceeding is incompetent because the plaintiff filed a Notice of Motion under Order 16 r 5 (1) of the National Court Rules (NCR) together with the originating summons which was filed pursuant to Order 16 r 3 (2) of the NCR to apply for leave for judicial review.

4. The essence of the applicant's argument is that a Notice of Motion filed under Order 16 r 5 (1) to apply for judicial review of substantive or serious issues and to seek substantive relief was filed before leave was obtained. The applicant argued that this was contrary to the mandatory requirements of Order 16 r 5 (1). The applicant argued that as a matter of law a Notice of Motion under Order 16 r 5 (1) can only be filed after leave is obtained.

5. Alternatively, the applicant seeks dismissal of the proceeding in its entirety for being an abuse of process and for failure to disclose a reasonable cause of action or an arguable case.

6. For the alternative relief, the applicant claims the proceeding has no merit and has no utility because all the relief sought by the plaintiff in the proceeding are against the Eastern Highlands Provincial Executive Council, but all the relief sought have been overtaken by events, one of which is the appointment of the sixth defendant by the National Executive Council (NEC).

7. The applicant also claims that plaintiff’s application for judicial review is misconceived because he is essentially challenging the sixth defendant’s appointment as the Provincial Administrator for Eastern Highlands Province by the NEC, yet all the relief he is seeking are against the Eastern Highlands Provincial Executive Council.

8. The plaintiff does not dispute that a Notice of Motion to seek judicial review under Order 16 r 5 (1) was filed together with the originating summons. Mr Jeffery Abone of counsel for the plaintiff however also argued that this application is itself incompetent because the applicant invoked wrong rules to seek dismissal of the proceeding. He argued that for that reason, the Court has no jurisdiction to entertain this application.

9. Mr Abone submitted that no Notice of Motion was required to be filed when leave was obtained because it had already been conveniently filed together with the originating summons.

10. It is not disputed that the plaintiff was the acting Eastern Highlands Provincial Administrator when the sixth defendant was appointed to the position by the NEC.

11. The plaintiff argued that he should have been appointed Provincial Administrator for the Eastern Highlands Province and not the sixth defendant. He argued that the appointment of the sixth defendant by the NEC was flawed because proper procedures were not followed.

12. It is also not disputed that the Eastern Highlands Provincial Executive Council recommended a person other than the plaintiff and the sixth defendant to the NEC to be appointed Provincial Administrator for the Eastern Highlands Province but the recommendation was refused by the NEC. It follows that the Eastern Highlands Provincial Executive Council had no part let alone influence in the appointment of the sixth defendant as the Provincial Administrator for the Eastern Highlands Province. Thus, it is significant to note that the appointment of the sixth defendant was made solely by the NEC.

13. The pertinent parts of Order 16 rr 3 and 5 of the NCR which set out the procedure regarding an application for leave for judicial review and the mode of application for judicial review of substantive or serious issues by way of a Notice of Motion are in these terms:

3. Grant of leave to apply for judicial review. (UK. 53/3)

(1) An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.

(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.

(3) The applicant must give notice of the application to the Secretary for Justice not later than two days before the application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

(4) Without prejudice to its powers under Order 8 Division 4, the Court hearing an application for leave may allow the applicants statement to be amended, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit.

(5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgement, order, conviction or other proceedings which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(7) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

(8) 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 the Court 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.

4. --------------

5. Mode of applying for judicial review. (UK. 53/5

(1) Subject to Sub-rule (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.

(2) The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.

(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Notice of Motion.

(6) If on the hearing of the Notice of Motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person.

14. Looking at Order 16 r 3, it is clear that it sets out a separate process for filing of an originating summons and other necessary documents which constitute an application for leave for judicial review. All these documents must be filed for there to be a competent application for leave for judicial review. If any one of these documents is not filed, the application for leave is rendered incompetent. See, Innovest Ltd v. Hon. Patrick Pruaitch & Others (2014) N5949. The documents to be filed for a competent application for leave for judicial review are: originating summons, Statement in Support, Affidavit verifying Facts (stated in the Statement in Support), Notice to the Secretary for Justice, giving notice of the application for leave for judicial review and supporting affidavit(s) of the plaintiff(s).

15. There is no requirement under Order 16 r 3 for a Notice of Motion under Order 16 r 5 (1) to be filed with the originating summons and the other documents mentioned above for a leave application. The reason is obvious, Order 16 r 5 (1) sets out a separate process which provides for the mode of applying for judicial review of the serious issues for which a leave is granted under Order 16 r 3.

16. Thus, filing of a Notice of Motion under Order 16 r 5 (1) initiates a separate process from an application for leave for judicial review under Order 16 r 3.

17. In an application for leave for judicial review made pursuant to an originating summons under Order 16 r 3, the relief sought is leave to seek judicial review. For this process, Order 16 r 3 is invoked, and when leave is granted, Order 16 r 5 (1) is then invoked by filing a Notice of Motion to commence the process of judicial review of the serious issues established pursuant to a grant of leave. The effect of this is that an originating summons under Order 16 r 3 and a Notice of Motion under Order 16 r 5 (1) are two separate processes, and they seek different relief as I discussed above. Therefore as a matter of law, the two initiating processes cannot be invoked and filed at the same time. To do so will amount to a serious abuse of process.

18. The plaintiff argued that there was nothing wrong with filing a Notice of Motion under Order 16 r 5 (1) together with the originating summons and other documents mentioned above, to seek leave under Order 16 r 3. He argued that it was convenient for the plaintiff because when leave was granted, there was no need to file a Notice of Motion. For the reasons given, this argument is seriously flawed and has no legal basis.

19. The terms of Order 16 r 5 (1) and (3) are very specific in this regard. Under Order 16 r 5 (1) it is mandatory that an application for judicial review be made by way of a Notice of Motion, “when” leave is granted. Thus, there cannot be any room for doubt that a Notice of Motion under Order 16 r 5 (1) cannot be validly filed before leave is granted. Unfortunately for the plaintiff, that is exactly what he did. This is fatal. Similar views have been expressed in a number of National Court and Supreme Court decisions. See, Kalinoe v. Paul Paraka (2014) SC1366; Peter Makeng v. Timbers (PNG) Limited & Others (2008) N3317 and Daki Mao v. Hon. Gibson Saonu & Others (2018) N7502.

20. It follows that it was an abuse of process for the plaintiff to file a Notice of Motion under Order 16 r 5 (1) together with the originating summons and other documents for leave for judicial review under Order 16 r 3.

21. I am also of a firm opinion that the plaintiff's application to review the actions of the Eastern Highlands Provincial Executive Council is misconceived. I hold this view because the sixth defendant was appointed by the NEC and not by the Eastern Highlands Provincial Executive Council. Thus, it probably could have been proper for the plaintiff to seek review of the decision of the NEC to appoint the sixth defendant to be the Administrator for the Eastern Highlands Province over the plaintiff.

22. That said, the plaintiff has in my view failed to show that the NEC had committed errors in appointing the sixth defendant as the Provincial Administrator for the Eastern Highlands Province. I am of a view that the plaintiff was only acting in the position of the Eastern Highlands Provincial Administrator, thus it was within the powers of the NEC to appoint the sixth defendant to the position, if the NEC considered the sixth defendant to be a suitable person for the position.

23. The plaintiff has also relied on Application by Philip Kereme (2019) SC1781, to argue that the appointment of the sixth defendant was illegal because he was appointed under the laws which had been declared invalid by the Supreme Court. It was argued by Mr Abone that the sixth defendant having been appointed under invalid laws, his appointment is illegal. Plainly, this argument is misconceived because the Supreme Court in Application by Dr Philip Kereme (supra) explicitly stated that the appointments made under the amended laws were not affected, and therefore those appointments remain valid and in force. The Supreme Court said:

"Since the Constitutional Amendments were made, they have been implemented. Actions taken under the amendments shall remain in force. This judgment will have prospective effect only".

24. For the foregoing reasons, I find that this proceeding is incompetent and an abuse of process.

25. The proceeding is therefore dismissed in its entirety.

26. The plaintiff will pay for the costs of and incidental to the proceeding for the defendants, which are to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Parkil Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First, Second, Third and Fifth Defendants
Niuage Lawyers: Lawyers for the Fourth Defendant
Parker Legal: Lawyers for the Sixth Defendant