Barton-Keene v Steven [2019] PGNC 485; N8837 (29 January 2019)

N8837

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 42 OF 2019

BETWEEN:
FAITH BARTON-KEENE as the Acting Solicitor-General of Papua New Guinea
Plaintiff

AND:
HON. DAVIS STEVEN as the Attorney-General & Minister for Justice
First Defendant

AND:
DR ERIC KWA as Secretary for the Department of Justice & Attorney
Second Defendant

AND:
THE PUBLIC SERVICE COMMISSION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Thompson J
2019: 29^th January

PRACTICE AND PROCEDURE – service of application for leave by plaintiff on state – insufficient service on the state as per Order 16 rule 3 and s8 Claims By and Against the State Act – application raises many issues which can be addressed if State is served with the application – state must be given the opportunity to be heard – matter adjourned to the registry for allocation of new hearing date

Counsel

Mr A Jerewai, for the Plaintiff.

29^th January, 2019

1. THOMPSON J: The Plaintiffs Application for Leave was served on 28 January 2019, which is not sufficient service on the State as required by Order 16 Rule 3 and by Section 8 of the Claims By and Against the State Act.
   
2. The Application raises many serious issues, including the possibility of it being res judicata, as the Plaintiff had already applied for and been refused Leave on the merits of an application made in December 2018. There is also the possibility of Constitutional references being required. These all make it necessary for the State to be given the opportunity to be heard.
   
3. The matter is not urgent, as the Defendant’s decision was already made on 7 December 2018, and there is no reason to dispense with the requirements for proper service.
   
4. In this regard, I note that the affidavit of service handed up by the Plaintiff, refers to incorrect dates and documents, and should be corrected.
   
5. The Plaintiff’s Application for Leave filed on the 26 January, and the Motion seeking interim orders filed on 28 January 2019, are adjourned back to the Registry for allocation of a new hearing date.

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Jerewai Lawyers : Lawyer for the Plaintiff