N11294
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 437 OF 2019

BETWEEN:
LAE RENTAL HOMES LTD
Plaintiff

AND:
DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant

AND:
OSWALD TOLOPA – ACTING SECRETARY FOR LANDS & PHYSICAL PLANNING
Second Defendant

AND:
HON. JUSTIN TKATCHENKO – MINISTER FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
MONEY TALKS LIMITED
Fifth Defendant

WAIGANI:  DINGAKE J
11 MARCH, 14 APRIL 2025

JUDICIAL REVIEW - PRACTICE AND PROCEDURE – Notice of Motion to dismiss two Originating Summons – Defective for not citing the correct jurisdictional basis – incompetent as it relies on non-existent Rule - Dismissed

Cases cited
Alex Timothy v Hon. Francis Marus [2014] PGSC 50; SC1403
Peter Makeng v Timbers (PNG) Limited (2008) N3117
NEC v Toropo (2003) SC245

Counsel
Mr. Moses Murray for the plaintiffs
Ms. Rosa Mobiha for the 1st, 2nd, 3rd and 4th defendants
Mr. Alfred Manase for the 5th defendant

JUDGMENT

1.	DINGAKE J:  By way of a Notice of Motion filed on the 6th of February 2024, the Fifth Defendant seeks to dismiss the Plaintiff’s two (2) Originating Summons filed on the 26th of June 2019, and another filed on the 26th of June 2023, on a number of grounds.

2.	The Fifth Defendant seeks to dismiss the Originating Summons filed on the 26th of June 2019, on the basis that it is defective for not citing the correct jurisdictional basis for leave.

3.	With respect to the proceedings instituted by Originating Summons filed on the 26th of June 2023, I have not found any such Originating Summons on file, and in any event, even if such an Originating Summons existed, the First Defendant invokes Rules outside Order 16 to impugn same, which in my mind is incompetent (Alex Timothy v Hon. Francis Marus [2014] PGSC 50 S1403).

4.	I will therefore focus on the ground that seeks to dismiss the Notice of Motion filed on the 26th of June 2019.

5.	As indicated earlier, the Fifth Defendant seeks to dismiss the Originating Summons filed on the 26th of June 2019, on the basis that it fails to cite the correct jurisdictional basis.

6.	The aforesaid Originating Summons cites Order 16 Rule 3 of the National Court Rules.

7.	The correct Rule to cite for leave for judicial review is Order 16 Rule 13(1) of the National Court Rules.

8.	The Plaintiff’s response to the above submission by the Fifth Defendant is that the Fifth Defendant’s Notice of Motion is also defective as it relies on a non-existent Rule, being Order 16 Rule 13(13) a and b of the National Court Rules.

9.	The Plaintiff is correct that there is no such Rule as relied upon by the Fifth Defendant. The correct Rule that the Fifth Defendant should have invoked is Order 16 Rule 13 (13) (2) (a) & (b)

10.	In my mind the Fifth Defendant’s Notice of Motion is incompetent for citing a non-existent Rule and is liable to be dismissed for that reason, as I hereby do.

11.	Having dismissed the Fifth Defendant’s Notice of Motion, the question arises to whether this Court is helpless to do anything about the Plaintiff’s Originating Summons filed on the 26th of June 2019 even as it appears to be defective ex-facie the Originating Summons. I do not think so.

12.	There are a number of reasons why the Plaintiff’s Originating Summons filed on the 26th of June 2019, cannot stand, the main one being: (a) that the Plaintiff failed to cite the correct jurisdictional basis for leave, and (b) that the Originating Summons pleads leave as well as substantive relief in breach of Order 16 Rule 3(2) of the National Court Rules.

13.	In terms of Order 16 Rule 13(13)(2) of the National Court Rules, this Court has the power, on its own initiative, to summarily determine a matter for breach of the Rules or based on any incompetency ground.

14.	In this case, this Court cannot look the other way or turn a blind eye to obvious transgressions committed by the Plaintiff.

15.	It is settled law that the Plaintiff seeking leave in its Originating Summons should not plead any other relief other than leave (Peter Makeng v Timbers (PNG) Limited (2008) N3117).

16.	In South Seas Tuna Corporation vs. Doiwa [2025]PGNC 20; N11149, in dismissing a judicial review application, the Court stated the following at paragraph 10:

“The Plaintiff’s application for leave to apply for judicial review should be dismissed. In its Originating Summons the Plaintiff seeks at [5] and [6] the substantive relief sought by it. The only matters that should be pleaded in the Originating Summons are leave to apply for judicial review, which is the relief sought, and the decision to be reviewed for which leave is sought (Order 16 Rule 3(2)). The Rules do not allow for the substantive relief such as an order in the nature of certiorari or prohibition or other relief to be pleaded in an Originating Summons. The substantive relief should be pleaded in the Statement in Support together with the grounds for review (Order 16 Rules 1 and 3(2)(a)).”

17.	In the case of NEC v Toropo (2023) SC2451, the Supreme Court re-visited the well-known requirements to be met in Judicial Review, and said the following at paragraph 10:

“Judicial Review Proceedings

10. The process of judicial review is well canvassed by Injia DCJ (then) in Peter Makeng v. Timbers (PNG) Limited (2008) N3317. In his deliberations, his Honour, highlighted that the process is provided for under Order 16 of the National Court Rules which was approved by the Supreme Court in Kalinoe v. Paul Paraka Lawyers (2014) S1366. The process includes the following steps:

(2) The Originating Summons is filed together with a Statement and an affidavit verifying the facts relied on – Rule 3(2)(a) and (b).

18.	In the result, I have come to the conclusion that the Plaintiff’s Originating Summons filed on the 26th of June 2019, is defective, for the reasons stated above and liable to be dismissed.

19.	On the issue of costs, given that the Fifth Defendants Notice of Motion seeks to dismiss the Plaintiffs Originating Summons of 26th of June 2019 and that the dismissal of the Plaintiff’s Originating Summons was on the Court’s own motion, it is fair that each party must pay its own costs.

20.	In all the circumstances, this Court makes the following Orders:

(a)	The Plaintiff’s Originating Summons is defective, and it is dismissed.
(b)	Each party is to pay its own costs.
__________________________________________________________________
Lawyers for the plaintiff: Murray & Associates		
Lawyers for the first to fourth defendants: Solicitor General
Lawyers for the 5th defendant: Manase & Co. Lawyers