So-ong v Wafewa [2023] PGNC 376; N10512 (6 October 2023)

N10512

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 31 OF 2023(IECMS)

HELEN ROSE SO-ONG
Plaintiff

V

JOE WAFEWA IN HIS CAPACITY AS THE DEPUTY MANAGING DIRECTOR FOR THE NATIONAL BROADCASTING CORPORATION
First Defendant

And
STAFF DISCIPLINARY ADVISORY BOARD
Second Defendant

And
THE NATIONAL BROADCASTING CORPORATION
Third Defendant

And
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 04^th & 06^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Originating Summons – Leave Application for Judicial Review – Order 16 Rule 3 (2) (a) (b) No Statement & Affidavit Verifying – Mandatory Requirement – Breach Order 16 Rule 13 (13) (2) (a) (b) (ii) NCR – No Proper Pleadings – Leave Refused – Application Dismissed with Costs.

Cases Cited:
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Kunjil v PNG Power Ltd [2007] PGNC 271; N3879
Kiponge v National Executive Council [2023] PGNC 289; N10454
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Sausau v Kumgal [2006] PGNC 156; N3253

Counsel:
J. Bibilo, for Plaintiff
M. J. Narokobi, for Defendants

RULING

06^th October 2023

1. MIVIRI, J: This is the ruling on the Plaintiff’s application seeking leave for Judicial review pursuant to Order 16 Rule 3 (1) of the National Court Rules. Her originating summons is in these terms: -
   
   • (i) Leave be granted pursuant to Order 16 Rule 3 (1) and (2) of the National Court Rules and section 155 (4) of the Constitution, for the plaintiff to seek judicial review of the decision of the First and Second defendants dated the 23^rd of January 2020 in which the Plaintiffs matter was referred to the Board for full deliberation once the Board is fully installed, and pending that, the plaintiff is suspended without pay.
     
   • (ii) Cost of this proceedings.
     
   • (iii) Any other orders in the discretion of the Court.
     
2. The allegation raises that the applicant was referred to the Board for full deliberation once the Board is fully installed, and pending that, the plaintiff is suspended without pay. The Board that the Applicant was referred to is not fully installed, whatever that may mean. She was referred to it for full deliberation but for what is not clear. It is unclear as to what this Board is, its composition, its functions if any, and from what Legislation if any it operates from to do what it is set up to do. And why the plaintiff/applicant was referred to it. Further it is not clear also what it means when it is pleaded the board was not fully installed, is it referring to the composition or constitution of the Board. If so, what is the function of the Board is not clear from the pleading. This pleading shows an internal process that was begun but not completed for the reasons set out in the pleading. Reading it as it is, it will not come to Court as of right. The Court will not step into the shoes of whatever the Board was functioned to do. That process must be allowed its course. It is internal process that must be allowed to take its course before it can be the subject of Judicial Review. That is the law set out in Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. Here that fact that does not allow the court to be interjected into the matter without completion thereof.
   
3. And materially these are facts that would be settled by a Statement pursuant to Order 16 Rule 3 (2) (a) (b) so that appreciation is taken to rest the queries that are raised. They will be the prima facie basis upon which leave lies for Judicial review or not. Order 16 Rule 3 (2) (a) (b) is in mandatory terms, that the originating summons seeking leave for judicial review must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought. Which would be verified by an affidavit filed. The applicant has not filed both in her application for leave. It means the pleading set out by the Rule has not been met such that the application is properly before the Court. As it is the cause of action for Leave is not sustained. Because the word is must, not may, so that it can be waived. Sufficient pleading to show prima facie that the applicant has an arguable cause that must be reviewed. In my view there is insufficient pleading and breach of Order 16 Rule 3 (2) (a) (b) of the Rules. It lacks and would not be in line with the firm views authoritatively set out in Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008), affirmed and endorsed boldly in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014).
   
4. Because “18. The Statement is equivalent to a Statement of Claim in a Writ of Summons: Lawrence Sasau v PNG Harbours Board (2006) N3253. It must set out, amongst other matters, an accurate description of the decision under review, a succinct statement of the relevant facts alleged which give rise to the grounds for review, the relief sought and the grounds upon which the relief is sought. Consistent with the need to prevent abuse of court process by busybodies with misguided or trivial complaints over administrative error, the Statement must plead in a separate paragraph, in clear and concise terms, the grounds relied upon. The grounds must contain reference to some established grounds recognized by law as proper grounds upon which judicial review relief is available and the statutory provision or common law duty alleged to have been breached. The grounds on which judicial review is available are also settled. Judicial review is available where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers: Kekedo v Burns Philp [1988-89] PNGLR 122 at 124, per Kapi DCJ (as he then was). Also see Independent State of Papua New Guinea v Kapal [1987] PNGLR 417. These grounds on which judicial review is available raise questions of law based on statutory provisions or duties imposed by common law. The pleading of the ground should be such that the clear issues of law are raised for determination by the Court, Asakusa supra.
   
5. This is the lack in the pleading that makes the Applicant’s cause incompetent. And it will not advance because of that fact. On the other hand, the Rules will not defeat Justice and that the Courts are slow to derail a litigant from the seat of Justice: Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007). But here is a fundamental feature that is required mandatorily, and its lack will not advance the cause of the applicant. Because pleadings are the heart and drives a cause of action without which there is no cause of action properly invoking the jurisdiction of the Court: Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 (23 April 2007) and judicial review is no different Kiponge v National Executive Council [2023] PGNC 289; N10454 (13 July 2023). The jurisdiction must accord basis upon which to hear the matter without which it will not be heard as is the case here. Accordingly, the aggregate is that the originating summon is incompetent and will be dismissed forthwith with costs to follow the event. Leave is refused with costs to follow the event forthwith.
   
6. The formal orders of the Court are:
   
   • (i) Leave is refused.
     
   • (ii) Costs will follow the event forthwith.
     

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for First Defendant