Vutliu v Ganai [2023] PGNC 358; N10507 (12 September 2023)

N10507

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 203 OF 2023 (IECMS)

JOESPH VUTLIU
Plaintiff

V

DAVID GANAI IN HIS CAPACITY AS SECRETARY DEPARTMENT OF COMMERCE & INDUSTRY
First Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2023: 08^th & 12^th September

PRACTICE & PROCEDURE – Originating Summons – Notice of Motion – Order 1 Rule 7 & Order 4 Rule 38 (2) (3) NCR – Interim Stay – No Jurisdiction Pleaded – Incompetent Motion – Section 155 Constitution Inapplicable – Motion Dismissed – cost follow event.

Cases Cited:
Amanab 56 Timber Investments Ltd v Sai'i [2020] PGNC 396; N8642
Attorney General v Hamidian-Rad [1999] PNGLR 444
Avia Aihi v The State [1981] PNGLR 81
Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73
In the Matter of an Application for Judicial Review Pursuant to Constitution Section 155(4); Skate v Nape [2004] PGSC 5; SC754
Pinoko and Yapanawe for and on behalf of Manki Clan v Independent State of Papua New Guinea [1997] PGNC 17; N1520
Takori v Yagari [2008] PGSC 3; SC905
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8

Counsel:
Y. Otmar, for Plaintiff/Applicant
Z. Rekeken, for Defendants

RULING

12^th September 2023

1. MIVIRI, J: This is the ruling on the notice of motion of the 31^st August 2023 moved by the Plaintiff for orders that:
   
   • (i) Pursuant to Order 1 Rule 7 and Order 4 Rule 38 (2) & (3) of the National Court Rules leave be granted for the dispensation of the three clear days requirement for service of this application under Order 4 Rule 42 of the National Court Rules and to proceed with the hearing of the application.
     
   • (ii) Further pursuant to Order 1 Rule 7 of the National Court Rules or Alternatively, Section 155 (4) of the Constitution of the Independent State of Papua New Guinea, and Interim Injunction be issued against the Defendants, the Department of Personal Management and the Selection Committee from making any permanent appointment to the position described as Deputy Secretary-Operations, Department of Commerce and Industry, Grade 19, Position No. CIEX 15 which was advertised by the First Defendant on the 09^th of June 2023 on page 54 of the Post Courier’s daily newspaper, until this proceeding reached its finality.
   • (iii) Cost of the application be in the cause.
   • (iv) Any other orders in the discretion of the Court.
     
2. Order 1 Rule 7 of the National Court Rules relates to and is as to the dispensation of the requirement of the rules. For instance, in the case of service by three clear days. That would be dispensed with so that the matter does not go the full length of compliance as to three clear days. It is based on material filed that would sway to go down that path. And usually, injustice would be caused if strict compliance is instituted, as in the case of serious cases for instance of eviction. Where immediate action is warranted in law but for the Rules of Court. And it is by the Court, not an Assistant Registrar: Pinoko and Yapanawe for and on behalf of Manki Clan v Independent State of Papua New Guinea [1997] PGNC 17; N1520 (26 February 1997). And there is apparent injustice or prejudice to the applicant or the other side if there is strict compliance of the Rules, Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73.
   
3. And evidence must be pleaded to support that mode. It is not clear what basis this is pleaded in the way that the applicant has pleaded here. Order 4 Rule 38 (2) (3) of the Rules is as to the institution of the motion its filing and service. And rule 42 is as to the service of that notice of motion. The form that is initiating the action. It alone will not give the remedy it must have the basis in the rules of Court and or law to draw the remedy. It is the subject of the Notice of motion which must stem basis either by the Rules of Court or in law. For instance, the National Court has no jurisdiction to entertain issues relating to ownership and title to customary land. As a matter of law, that jurisdiction is vested in the Local Land Court established by the Land Dispute Settlement Act, Ch 45,: Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8.
   
4. Here the dispensation set out above and the form of the notice of motion is not the jurisdictional basis for the notice of motion. It will not grant the affidavit that is relied on of Joesph Vutliu sworn of 28^th August 2023 filed 31^st August 2023. Dismissal of proceedings is discretionary and is attributed to the material that is relied on. And is no light matter to derail a litigant from the Judgment seat. It must be a very clear case to go down that path: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). Here there is no jurisdictional basis to grant the stay. And where there is no jurisdictional basis, the action will be dismissed Amanab 56 Timber Investments Ltd v Sai'i [2020] PGNC 396; N8642 (10 November 2020). Here there was no jurisdictional basis in the Rules of Court that were pleaded and relied on the action was dismissed with costs. There must be proper basis in the rules to draw the remedy here it was order 16 of the Rules that drew certiorari, Attorney General v Hamidian-Rad [1999] PNGLR 444. And dismissal of proceedings will follow the rules of court that empower to so grant, Order 16 Rule 13 (13) (2) (a) of the Rules. And in the case of want of prosecution Order 16 Rule 13 (13) (2) and Order 4 Rule 36 for Summary dismissal in Judicial review cases.
   
5. Here there is undoubtedly no basis either in the Rules of Court, or in law to save the action, except to dismiss it. There is no utility either apparent or identifiable in law or by the Rules to save the action. There is no jurisdictional basis, accordingly in the form manner it is instituted it is dismissed in its entirety forthwith and costs will follow the event against the applicant in favour of the respondents forthwith if not agreed to be taxed.
   
6. Where there are Rules as here in the case of Orders under the National Court Rules and the law is clear, section 155 (4) cannot be used. “This provision has been interpreted to apply to remedial orders in respect of primary rights in particular circumstances of a case. It is not intended to cover every situation. If this was the case, s 155 (4) would override specific provisions of the law. In Avia Aihi v The State [1981] PNGLR 81 the Court held that s 155 (4) of the Constitution could not override the provision of the Supreme Court Act on the 40 days period in which to appeal against the decision of the National Court. The specific provision dealing with interim orders pending determination of an originating process under s 18 (1) of the Constitution is expressly provided for under O 3 r 2 (b) of the Supreme Court Rules. Section 155 (4) of the Constitution can have no application to the interpretation of O 3 r 2 (b) of the Rules. Whether or not interim order should be made in any case is determined by the words "prejudice to the claims of the parties" and not on any general notion of justice under s 155(4) of the Constitution. We reject the submission based on s 155(4),” In the Matter of an Application for Judicial Review Pursuant to Constitution Section 155(4); Skate v Nape [2004] PGSC 5; SC754 (9 July 2004).
   
7. Here there are specific rules of Court within the National Court Rules for the institution of proceedings to bring forth what is set out by the affidavit relied on here. It has not been the case by the applicant plaintiff. And it is the responsibility of He who asserts to bring that to the Court. It is not for the Court to school and descend into the arena of the dispute. As it is before the Court reliance on section 155 (4) of the Constitution will not bring out the basis in law to save this action. The primary Rules of Court give life to these proceedings which have not been invoked setting jurisdiction to couple the facts to give the remedy. It is accordingly dismissed as without merit in law with costs following the event against the applicant plaintiff in favour of the Respondent.
   
8. The formal orders of the court are:
   
   • (1) The Notice of Motion by the applicant/plaintiff of the 31^st August 2023 lacks Jurisdiction within the Rules of Court.
   • (2) It is dismissed forthwith.
   • (3) Cost of the proceedings will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________
Don Wapu Lawyers: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for the Defendant