Mabiria v Hiwi [2023] PGNC 195; N10264 (12 May 2023)

N10264

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 94 OF 2022

BETWEEN
LEMSON L. MABIRIA – FORMER CHAIRMAN AND NOMINEE
First Plaintiff

AND
THOMAS WANDIAGO – FORMER DEPUTY CHAIRMAN AND NOMINEE
Second Plaintiff

AND
AMAYA PAIAY OLA, ERIC AKO HAWAI, ANDY MUYA, EGAWI TAGO, ALBERT JAKANEKO AND AJARI LIWA – FORMER BOARD MEMBERS AND NOMINEES
Third Plaintiffs

AND
HIDES LOCAL LEVEL GOVERNMENT SPECIAL PURPOSE AUTHORITY
Fourth Plaintiff

AND
NICKSON ALBERT HIWI, PHILIP IRUKA, PHILIP AKO, MATHIAS MBARI, ALBERT TUNDU, MARAKO PATE, MICHEAL PANI AND ANGOPE LAPU as newly elected BOARD MEMBERS
First Defendants

AND
DR. ALPHONSE GELU - SECRETARY
Second Defendant

AND
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
Third Defendant

AND
HON. WESTLY NUKUNDI NUKUNDJ - MINISTER
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Linge AJ
2023: 24^th April

PRACTICE AND PROCEDURE- Judicial review – leave has not been granted to apply for judicial review - Court has no jurisdiction to grant stay or other interim relief before grant of leave – Order 16 Rule (8), National Court Rules – s.155(4) of the Constitution inapplicable.

Cases Cited:
Makeng v Timbers (PNG) Ltd [2008] PGNC 78
R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd, [1981] UKHL 2; [1981] 2 WLR 722
O’Neill v Eliakim [2016] SC1524
Logai & Maken v John Jeffrey, Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea, (2008) N4021

Counsel:
Mr. Dick Korowa Kipoi, for the Plaintiff
Mr. Paul Harry, for the First Defendant

RULING

12^th May, 2023

1. LINGE AJ: This is my ruling on two (2) opposing Notice of Motions. I heard both applications on the 24 April 2023 and reserve my ruling until now.

First defendants Notice of Motion

2. The first Notice of Motions is that of the first defendant filed on the 23 January 2023 seeking to dismiss the proceeding for being incompetent and an abuse of process. He relies on Order 8 rule 27, Order 12 rule1 and Order 16 rule s 5 (1) and (3) (2), National Court Rules and in the alternate seeks to set aside Terms 2and 3 of the ex parte order of 6 December 2022.
   

Plaintiff’s Notice of Motion

3. The plaintiff filed his Notice of Motion on the 14 April 2023 seeking a multiplicity of orders as follows:
   
   1. That leave be granted to the Applicants to withdraw the Notice of Motion dated and filed on the 3 February 2023 pursuant to Order 4 Rule 49 (17) and Order 12 Rule 1 of the National Court Rules.
   2. That leave be granted to the Applicants to withdraw the Notice of Motion filed pursuant to Order 16 Rule 5 (1) of the National Court Rules on the 24 February 2023 pursuant to Order 4 Rule 49 (17) and Order 12 Rule 1 of the National Court Rules.
   3. That leave be granted to the Applicants to withdraw the Amended Notice of Motion, Amended Originating Summons, and the Amended Statement pursuant to Order 16 Rule (3) (a) of the National Court Rules all filed on the 23 October 2022 pursuant to Order 12 Rule 1 of the National Court Rules.
   4. That leave be granted to set aside the Court Order dated the 6 December 2022 for being irregular pursuant to Order 12 Rule 1 and Order 12 Rule 8 (1), (3) and (4) of the National Court Rules.
   5. That the Summons for Production issued to Lemson Mabiria, Kenneth Unda, David Ikipe and the Bank of South Pacific dated the 20^th of January 2020 and filed on the same date for production of documents be set aside pursuant to Order 16, Rule 3 (8) (a), Order 12, Rule 1, Order 12 Rule 8 (3) (b) and (4) of the National Court Rules.
   6. That the First Defendants be restrained in any manner or form from accessing the Fourth Applicant’s Account Number 100 1447296 held with the Bank of South Pacific.

4. The Originating Summons to commence this judicial review proceeding was filed on the 10 September 2022. Also filed on the same date were the Statement and affidavit verifying the facts relied on as required by o16r3 (2) (a) and (b) of the National Court Rules.

5 Before the hearing of the application for leave, the plaintiff on the 26 October 2022 filed an Amended Originating Summons. The amendment pertains to the deletion of Term 2 of the Originating Summons viz: “An Order granting Leave to apply for Judicial Review to review the decision of the Minister for Provincial and Local Level Government Affairs, Hon.Westly Nukundi Nukundj made on the 1 day of May 2022.”

6. On the 6 December 2022 the plaintiff sought and was granted an Order restraining the first defendants in any manner or form from accessing the fourth plaintiff’s Account Number 100 1447296 held with Bank of South Pacific.

7. The Court granted the Orders following plaintiff’s counsel submission at the time which was to maintain the status quo pending the judicial review proceedings on foot. In the exercise of its inherent power and discretion, the Court granted the interlocutory restraining orders against the first defendants to not represent, act, conduct business or deal on behalf of the fourth plaintiff.

8. The first defendants filed their notice of motion on the 23 January 2023 seeking to dismiss the proceeding for being incompetent and an abuse of process.
9. In response to the first defendant’s application, the plaintiff counter with his notice of motion filed on the 14 April 2023 seeking leave to:

(i) withdraw the Notice of Motion filed 3 February 2023.

(ii) withdraw the Notice of Motion filed 24 February 2023.

(iii) withdraw the Amended Notice of Motion, Amended Originating Summons and the Amended Statement filed on the 26 October 2022.

(iv) set aside Order of 6 December 2022 for being irregular;

(v) set aside the Summons for Production issued to Lemson Mabiria, Kenneth Unda, David Ikipe and the Bank of South Pacific dated the 20 of January 2020 and filed on the same date; and

(vi) grant new restraining the first defendants in any manner or form from accessing the fourth plaintiffs’ Account Number 100 1447296 at the Bank South Pacific.

10. Mr. Paul Harry of counsel for the first defendant was first to make submission on his client’s motion for dismissal of the proceeding on the grounds of incompetency and abuse of process. He submits from the outset that if the Court were to grant the orders sought by the plaintiff in his Notice of Motion filed on the 14 April 2023 it will have implication on the continuation of the proceedings.

11. He submits that the plaintiff’s action is tantamount to admitting that the whole proceeding is incompetent from the beginning. As such it vindicates his client’s notice of motion seeking dismissal of the proceeding on the grounds of incompetence and an abuse of process.

12. On that basis, Counsel concedes that his clients have no objection to the withdrawal by the plaintiff of documents enumerated and identified in the application, and the setting aside of the Order of 6 December 2022.

13. In relation to Terms 5 and 6 of the Notice of Motion of 14 April 2023, Mr. Harry submits that these are consequential orders that will come to pass upon the Court granting the withdrawal and setting aside orders in Terms 1 - 4.

14. He submits that the Court ought instead to grant orders for dismissal of the proceedings for being incompetent and an abuse of process in terms of the first defendant’s Notice of Motion filed on the 23 January 2023.

15. Mr. Dick Korowa Kipoi for the plaintiff submits that the granting of Orders sought in the plaintiff’s Notice of Motion filed on the 14 April 2023 would not cause the proceeding to be at an end but rather would revert and restore the proceedings to its original filing of 10 September 2022 including the Originating Summons (JR), affidavit verifying the facts/statement and the Statement to rely on in seeking leave to file for judicial review.

16. In relation to the interim restraining order of 6 December 2022, he submits that it was irregularly obtained, and this Court must set it aside and be replaced by a new restraining order in respect of the same.

17. As regards the order for setting aside of the Summons for Production filed on the 20 of January 2020 and issued to the plaintiff among others, Counsel submits that the Court must be aside on the basis of such being consequential to the Court’s granting orders sought the plaintiff for withdrawal and setting aside.

18. The procedure for judicial review is settled in this jurisdiction. It starts with obtaining of leave pursuant to Order 16 Rule 3 (1). The applicant must be made by an Originating Summons ex parte in Court supported by a Statement setting out the details, relief sought, grounds relied on, and affidavit verifying the facts relied on as required by o.16r.3 (2) (a) and (b) of the National Court Rules.

19. In this case the Originating Summons, Statement setting out the details, relief sought, grounds relied on, and affidavit verifying the facts were all filed on the 10 September 2022 seeking leave for judicial review.

20. Leave application had not been heard and thus no leave had been granted for judicial review.
21. On the 26 October 2022 the plaintiff filed:

(i) an Amended Originating Summons. The amendment pertains to the deletion of Term 2 of the Originating Summons viz: “An Order granting Leave to apply for Judicial Review to review the decision of the Minister for Provincial and Local Level Government Affairs, Hon.Westly Nukundi Nukundj made on the 17^th day of May 2022.”
(ii) Amended Statement pursuant to O26r (3) (a) of the Rules.
(iii) Amended Notice of Motion

22. It is in the interest of the plaintiff for leave to be granted. It is am ex parte process heard in open court in so far as parties other than the State is concerned. Where the State is a party, every opportunity must be afforded to the Secretary for Justice to be heard, s.8 of Claims By and Against the State Act 1966.

23. In Makeng v Timbers (PNG) Ltd [2008] PGNC 78, N3317 His Honour Injia DCJ held, at paragraph 35 “that pursuant to O 16r 3(8) of the National Court Rules , the Court has no jurisdiction to grant stay or other interim relief in a judicial review matter brought under O 16 before the grant of leave to apply for judicial review but only after leave is granted. “

24. The judicial review is a special process. that judicial review is a standalone procedure, is special, exclusive and restrictive process. From his ruling in Makeng v Timbers (PNG) Ltd (supra) the following are the steps to follow after as grant of leave:

(1) That is once Leave is granted, a notice of motion seeking judicial review must be filed and served in accordance with O 16 r 5 (2) and proceed to hearing a hearing in accordance with and in due compliance of the provisions of r 5(3)-(5).

(2) If any urgent or interim relief is also sought this should be included in the notice of motion and may be argued earlier if need be or otherwise in accordance with the motion rules prior to the hearing and determination of the substantive review.

(3). After attending to any pressing, urgent or interim matter the substantive review application should proceed to a hearing without delay, a date for which should be fixed within 21 days of the grant of leave.
25. In summary, the position that must be followed is:

(1) Prior to grant of leave for judicial review or at leave stage, no party can ask and obtain any relief.

(2) Following on from that, it is clear that, one cannot seek and obtain substantive relief at the leave stage.
26. The Judicial Review (Amendment) Rules place in the proceeding unless Leave had been granted. O 16 r 3 of the National Court Rules provides for that process in mandatory terms. The purpose of seeking leave is to prevent the court’s time being wasted by busy bodies who trivialize the process with unnecessary complaints and interlocutory applications. In R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Business Ltd, [1981] UKHL 2; [1981] 2 WLR 722 at 739 the Court stated- “Its purpose is to prevent the time of the court being wasted by busy bodies with mis guided or trivial complaints...”.

27. In O’Neill v Eliakim, [2016] SC 1524 the Supreme Court in adopting the analogy of a judicial review process to an appeal stated at par.55: “The requirement for leave is designed to filter and flush out, as it were, applications or intended substantive appeals which are groundless or hopeless (according to law) at an early stage. ... Thus, through this process of scrutiny, what can properly be described as frivolous and vexatious complaints of ‘sore losers’, which are not capable of being legally maintained, are cast aside and removed, according to law”,

28. I have considered both submissions and I note especially the concession taken by counsel for the first defendant in respect to the withdrawal and set aside order sought by the plaintiff in his Notice of Motion of 14 April 2023 especially Terms 1-4.

29. As regards Terms 5 which is the setting aside the Summons for Production issued to the plaintiff and others, this is a consequential my view is that Terms 5 and 6 of the Notice of motion. In respect thereof, the issue is whether I should set aside the interlocutory restraining order of 6 December 2022 or grant other orders as I deem necessary.

30. Having considered all of the above and the extent of the inherent power of the Court under s.155 (4) of the Constitution, I have come to the conclusion that s.155 (4) confers no primary jurisdiction on the Court to grant interim relief before leave to apply for judicial review is granted. The multiplicity of orders sought by the plaintiff are in the nature of interim orders.

31. On the balance the plaintiff has acted outside the letter and intent and process of judicial review. He has taken numerous steps to file interim applications and in particular the amendment to the originating summons removing the prayer for leave in Term 2 of the purported amendment document filed on the 26 October 2022.

32. The Judicial Review (Amendment) Rules) did not remove the time stipulations. His Honour Injia CJ, in Logai & Maken v John Jeffrey, Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea, (2008) N021 set out the steps that come into play after leave is granted.

1. Court grants leave: O16 r3. Directions are issued by the same judge who grants leave at the time of granting leave for inter alia, filing and service of Notice of Motion: O16 r5 (10, O16 r 13.5 (Judicial Review (Amendment) Rules). The Court fixes a date for directions hearing to take place within 14 days from grant of leave.
2. Notice of Directions hearing is issued by the Registrar. The return date fixed by the Registrar is the same as the date fixed by the Court under O16 r 13.5 (5).
3. Directions hearing takes place within 14 days from grant of leave. After directions are issued as to filing of affidavits, Review Book, etc; a date is fixed for a pre-hearing conference to take place within 7 days. This brings to total the number of days after grant of leave at 21 days.
4. At the pre-hearing conference, a date for the hearing is fixed. This conforms with the requirement under O 16 r 5 (4) that the Notice of Motion “must be fixed for hearing within 21 days after the grant of leave.”

33. The plaintiff clearly failed to follow the judicial review process. He failed to proceed within time to obtain leave. His failure to seek leave for judicial review and instead to proceed on to seek a multiplicity of orders including setting aside of orders and withdrawal of proceedings is an abuse of process.

34. Clearly it is within the Court’s power to dismiss the proceedings, but I will not do that but allow the application for leave to remain I have also considered the application by the first defendant for dismissal of the proceeding.
Order

35. In the end I order as follows:

1. I refuse to grant leave to the plaintiff pursuant to his Notice of Motion filed on the 14 April 2023 to withdraw and order dismissal of :

(a) the Notice of Motion dated and filed on the 3 February 2023.

(b) the Notice of Motion filed pursuant on the 24 February 2023.

(c) the Amended Notice of Motion, Amended Originating Summons, and the Amended Statement.

(d) the Summons for Production issued to Lemson Mabiria, Kenneth Unda, David Ikipe and the Bank of South Pacific dated the 20^th of January 2020

2. The Order of 6 December 2022 is hereby discharged.

3. I refuse to restrain fourth plaintiff Account Number 100 1447296 held with the Bank of South Pacific.

4. The plaintiff is at liberty to proceed with their application for leave to apply for judicial.

5. Cost on indemnity basis

6 Time is abridged to time of settlement of this order.

Ordered Accordingly
_______________________________________________________
Kipoi Lawyers: Lawyers for the Plaintiffs/Applicant
Harry Lawyers: Lawyers for the Defendants