Kiponge v National Executive Council [2023] PGNC 289; N10454 (13 July 2023)

N10454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 42 OF 2023

REX KIPONGE
Plaintiff

V

NATIONAL EXECUTIVE COUNCIL
First Defendant

AND
PUBLIC SERVICE COMMISSION
Second Defendant

AND
HON. WALTER SCHNAUBELT in his official capacity as Minister for Transport & Civil Aviation & Shareholder of National Airports Corporation Limited
Third Defendant

AND
JOESPH KITAU in his capacity as the Acting Managing Director of National Airports Corporation Limited
Fourth Defendant

AND
NATIONAL AIRPORTS CORPORATION LIMITED
Fifth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant
Waigani: Miviri J
2023: 12^th & 13^th July

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating Summons – Order 16 Rule 3 (1) NCR – Application for Stay – Leave Obtained –– Interlocutory Application Not Filed – No Record of Instituting Originating process – No Notice of Motion Seeking – Pleadings In Originating Summons Insufficient Exhausted – No Record Originating process to Determine – Application Not Granted – Cost Follow Event.

Cases Cited:
Andapanga Alfred Belson Baliawe v Hon. John Kaupa & Electoral Commission EP No. 85 of 2022
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Kunjil v PNG Power Ltd [2007] PGNC 271; N3879
Kumiye v Independent State of Papua New Guinea [2018] PGSC 38; SC1693
Namah v Higgins [2018] PGNC 247; N7351
O'Neill v Ombudsman Commission of Papua New Guinea [2014] PGNC 99; N5642
Waim No 85 Ltd v Independent State of Papua New Guinea [2015] PGSC 34; SC1405
Takori v Yagari [2007] PGSC 48; SC905

Counsel:
M.L. Ako, for Plaintiff
K. Kipongi, for First & Sixth Defendant
M. Boas, for Third Defendants
N. Saroa, for Fourth & Fifth Defendants

RULING

13^th July 2023

1. MIVIRI, J: This is the ruling on the plaintiff’s application for Stay following the grant of leave for Judicial review given by this Court on the 19^th of June 2023.
   
2. The material facts are that the Plaintiff was appointed by the Board of the National Airports Corporation (NAC) as the Managing Director and Chief Executive Officer (CEO) for a period of four (4) years sealed with a contract of employment executed on the 06^th December 2021. By notice in the National Gazette No. G930 of the 07^th December 2022, the third defendant suspended the Plaintiff from that position and appointed one Joesph Tupiri as Acting Managing Director for three (3) months effective on and from 05^th December 2022. And this decision was based on section 147AG of the Civil Aviation Act (Amendment No. 1) Act 2022 (No. 65 of 2022). Subsequently on the 20^th April 2023, the first Defendant made a further decision by Notice in the National Gazette No. G302 of the 27^th April 2023 revoking the appointment of the Plaintiff as MD & CEO of NAC, and pursuant to sections 147AG (4) and 147AF of the Civil Aviation Act, and sections 6 and 9 of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (RSA Act 2004), appointed Joesph Kintau as Acting MD of the NAC.
   
3. The plaintiff relies on that subject originating summons of the 12^th May 2023 which had the leave heard and granted because it was pleaded in that originating summons. There, the originating summons relied on the rules Order 16 Rule 3 set as jurisdictional basis for the grant of the relief, leave for judicial review. What is now sought is stay pursuant to Order 16 Rule 3 (8) (a) (b) of the Rules, because the relief ultimately sought would be certiorari. That is the jurisdictional basis that will be drawn upon to ask the court to grant the application. But that jurisdictional basis is not pleaded by a notice of motion filed in Court by the Plaintiff, which is the mode of proceeding in an interlocutory proceeding as is the case here. Because the National Court Motions Amendment Rules 2005, at rule 9 states, “Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.” It is not the case by Order 16 rule 3 that the same originating summons drawing leave will be relied on to ask for Stay as is the case here.
   
4. Even it was, it is not pleaded in that document 1 on the record of the proceedings. An application afresh will be filed to draw the Stay sought. Because there is no originating process filed in the record of the proceedings to give effect to the argument advanced to sustain the relief. Which intention is presumably to maintain the status quo of the position in dispute. Effectively leaving the Plaintiff in the chair as the MD and CEO until the determination of the removal he contends as being unlawful ultra virus now awaiting the argument of the substantive notice of motion filed. In itself it is the substantive relief and cannot be circumvented in an interlocutory application as is the case here. Because Judicial review is about the process that was taken to arrive at the decision not the decision ought to be substituted or changed with another decision in favour of the applicant: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.
   
5. Because the allegation is that there is error on the face of record for Judicial review to lie: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. If that is the allegation, leave has been obtained, the next phase is to file a notice of motion to obtain stay to preserve the status quo. That is discretionary and the instituting forms the notice of motion has not been filed to obtain, the relief, the Stay. So, it is not erroneous to move a motion in similar terms again that was dismissed for want of prosecution earlier: Waim No 85 Ltd v Independent State of Papua New Guinea [2015] PGSC 34; SC1405 (29 January 2015). There was no breach of the principles of natural Justice in the way the primary Judge heard that motion and dismissed the proceedings. The appeal was dismissed.
   
6. The point is that there is no notice of motion moving the application for Stay now on file and on record of the proceedings. The application for Stay challenged by the fourth and fifth defendant as being incompetent contending that there is no instituting process filed to invoke the jurisdiction of the Court to hear the matter is with merit and must sustain. Because the originating summons secured the leave and is now for all intent and purposes has been exhausted and cannot be the basis to invoke this application for Stay. Order 16 Rule 3 does not accord and authorize what the plaintiff has done. There is therefore no originating process setting out the Courts jurisdiction to grant what is argued. It must have the instituting process to be followed with the arguments that it has advanced. They cannot be determined without the process instituting in place. The Court does not have the jurisdiction to determine the arguments advanced. The proceeding is therefore incompetent and cannot be heard.
   
7. Pleadings will draw the cause of action: Kumiye v Independent State of Papua New Guinea [2018] PGSC 38; SC1693 (27 June 2018). And Judicial review is no different. More particularly here there must be a notice of motion filed on the record of the proceedings which will be the basis for the pray for Stay, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014) details that such an application can be made even before the leave application or grant of leave. But the facts will dictate as it is discretionary upon the Court. And usually is by a notice of motion. That the notice of motion will be premised upon Order 16 Rule 3 (8) (a) (b) of the Rules with supporting affidavits to support the application for Stay. It must be properly pleaded out to sustain what is sought in the relief: Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). That is the way it is done.
   
8. In O'Neill v Ombudsman Commission of Papua New Guinea [2014] PGNC 99; N5642 (11 June 2014), the applicants were seeking relief in the Notice of Motion pleaded in paragraphs 3 and 4 within. Which relief was to stay the decision and direction of the Ombudsman Commission contained in the direction of the 14^th April 2014 made out to the plaintiff and others. Relief sought in paragraph 4 is to restrain the Ombudsman Commission, its servants, and agents from taking any actions that may obstruct or jeopardize compliance with State's obligation under a loan transaction with Union Bank of Switzerland AG (UBS):

“The issues before the Court arise from the NEC decision on 6 March, 2014 to approve borrowing of USD$1.249 Billion to purchase 149.39 million shares in Oil Search Ltd. The State subsequently entered into a loan agreement with UBS. The loan transaction including share purchase was concluded on 12 March, 2014. On 14 March, 2014, the Ombudsman Commission issued the above direction to various people and institutions including the plaintiffs to immediately stop all further transactions relating to the loan. The interest component of the loan is AUD$2,490,161.67, which has to be paid on the 16th day of every month. The interest for this month is due for payment on 16th June, 2014. This application is to stay the Ombudsman Commission's direction as it relates to the loan interest payment and such other activities relating to the loan.” Leave in the matter was obtained earlier after which a notice of motion was filed to stay the proceedings. That is not the present facts, nor is it the case that the originating summons filed of the 12th May 2023 pleads in the alternative that in the event that leave is granted, that it operates as a Stay pursuant to Order 16 Rule 3 (8) (a) or (b) of the Rules as demonstrated in Namah v Higgins [2018] PGNC 247; N7351 (5 July 2018). That is not the case here reading the originating summons dated 08^th May 2023, filed 12^th May 2023. It is not pleaded in those terms there. It only seeks leave which was granted so it is for all intent and purposes exhausted and cannot be relied on by the plaintiff for stay he now applies.

9. It means for all intent and purposes there is no originating process to give the pray for a Stay by the plaintiff applicant. He must file the instituting process as it is not on the record of the proceedings to be argued. The arguments that have been advanced by both sides of the dispute will not be considered and determined because the instituting originating process is not there before the Court to be so accorded. The plaintiff has not been driven off the seat of Judgment: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), because he has not instituted by the correct mode and pleaded by his originating process to attract the relief sought. Competency in my view can be raised at any time in the proceedings and here it is not erroneous to raise in the way challenged by the fourth and fifth defendant as the Court must have the jurisdiction to hear and determine a matter. There is no notice of objection to competency filed but the court is a court of record, and its records speak. That is official court records held by the registry of the Court at the discretion of the Court to use in the use of the determination of the matter before it: Andapanga Alfred Belson Baliawe v Hon. John Kaupa & Electoral Commission EP No. 85 of 2022; Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 (23 April 2007). It does not need formal application to be applied to the law.
   
10. The Court must follow and apply the law in all that it does. And it is no different given here by the facts and circumstances now apparent. The defendants are not obliged to file a notice of objection to the competency of the application for Stay as it is not on the records of the Court and cannot be responded to. But the court has the discretion to consider it when it is raised as here. Because there must be an instituting originating process to draw the jurisdiction of the Court. That is not the case here and the application does not bear any originating process either by the originating summons initially filed on the 12^th May 2023. Or by a notice of motion following. Consequently, the arguments submissions made do not flow and will not sustain in the way argued. There will not be any determination made pursuant. The application is not on the record of the Court. Stay cannot be granted given.
    
11. The formal orders of the court are:
    
    • (1) Application for Stay is not on the record of the proceedings.
    • (2) Application will not be granted.
    • (3) Costs will follow the event.

Orders Accordingly.

__________________________________________________________________
Kalit Legal Consulting: Lawyers for the Plaintiff/Applicant
Office of the Solicitor General: Lawyers for the First & Sixth Defendants
Kuman Lawyers: Lawyers for the Third Defendant
Nelson Lawyers: Lawyers for the Fourth & Fifth Defendants