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Jay LW Contractors Ltd v Marape [2025] PGNC 65; N11184 (13 March 2025)

N11184


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS (JR) NO. 69 OF 2024


BETWEEN:
JAY LW CONTRACTORS LIMITED
Plaintiff


AND:
HON JAMES MARAPE in his capacity as Chairman of the National Executive Council
First Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Second Defendant


AND:
GIBSON HOLEMBA as Acting Secretary for the Department of Works & Highways
Third Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


WAIGANI: PURDON-SULLY J
11 DECEMBER 2024;13 MARCH 2025


JUDICIAL REVIEW - PRACTICE & PROCEDURE – Leave granted for judicial review- Plaintiff ordered but fails to file Notice of Motion under Order 16 Rule 5 of the National Court Rules - Application for summary dismissal - Order 16 Rule 13(13)(2)(a)&(b)(i) and (ii) of the National Court Rules – failure to comply with Court order or direction - breach of mandatory provisions under Order 16 of the National Court Rules – Plaintiff relies upon Notice of Motion for substantive review filed at same time as Originating Summons for grant of leave for judicial review - implications and consequences discussed – Court may summarily dispose of proceedings on own initiative


PRACTICE & PROCEDURE – Court's discretionary power to dispense with rules under Order 16 r 8(1) and/or Order 16 Rule 13(14) of the National Court Rules


PRACTICE AND PROCEDURE – Costs sought on indemnity basis – no exceptional circumstances – costs should follow the event – costs awarded on a party and party basis.


Cases cited


Andrew Nagari v. Rural Development Bank; Rural Development Bank v Andrew Nagari [2007] N3295
Alex Timothy v Hon Francis Marus [2014] SC1403
Akunia v O’Neil [2019] N8125
Bailasi v Kali [2011] PGNC 264; N5016
Bluewater International Limited v Mamu [2019] SC1798
Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96;
Chairman – Dr Kereme [2017] N6706
East New Britain Provincial Government v Public Service Commission
Mao v Saonu [2018] N7502
Jimmy v Kaleva [2004] PNGLR 331
Karl Paul v Aruai Kispe [2001] N2085
Keka v Yafaet [2018] SC1673
Kalinoe v Paul Paraka Lawyers [2014] SC1366
Peter Makeng v Timbers (PNG) Limited & Others (2008) N3317
SC2280
Philip Isu & Ors v John Ofoi & the State [2014] PGNC 216; N5518
Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642
Opi v Telicom PNG Ltd [2020] PGNC 168; N8290 at [235] – [236]
Wartoto v The State [2015] PGSC 1; SC1411


Counsel


Mr Z Kamaso for the plaintiff
Mr N Pilamb for the first, second and fourth defendants
Mr E Sasingian for the third defendant


  1. PURDON-SULLY J: Before the Court are two Notices of Motion for determination:
    1. The Plaintiff’s Notice of Motion pursuant to Order 16 r 8(1) and/or Order 16 r 13(14) of the National Court Rules (NCR) seeking inter alia to vary Term 2 of the Orders of 23 August 2024 and for the Court to accept the Plaintiff’s Notice of Motion for Judicial Review filed 10 August 2024 to be used for the judicial review application. Alternatively, the Plaintiff seeks pursuant to Order 16 r 8(1) of the NCR for an order striking out the Notice of Motion filed on 10 August 2024 and an order for extension of time by three (3) clear days be granted to the Plaintiff to comply with term 2 of the orders dated 23 August 2024.
    2. The First, Second and Fourth Defendant’s Notice of Motion filed 18 September 2024 seeking the dismissal of the proceedings for failure to disclose a reasonable cause of action, being frivolous and vexatious and an abuse of process together with indemnity costs.
  2. The application is opposed by the Plaintiff and Third Defendant.

RELEVANT BACKGROUND


  1. The Plaintiff is a nationally owned construction company with inter alia experience in large civil construction and road projects.
  2. It put in a bid in response to a government tender for a road construction project in Central Province.
  3. Following a technical and financial evaluation reporting process the Plaintiff was shortlisted as the preferred bidder of three bidders in a recommendation to the Second Defendant. It was unsuccessful, the project awarded to the number three bidder as listed, Hebou Constriction Limited by the Second Defendant in or about May 2024 (decision).
  4. Aggrieved by the decision on 10 August 2024, the Plaintiff applied for leave for judicial review.
  5. On 10 August 2024, the same day as the Plaintiff filed its application for leave for judicial review, the Plaintiff filed a substantive Notice of Motion for judicial review under Order 16 r5(1) of the NCR.
  6. On 23 August 2024 the Plaintiff was granted leave. On the same day, the Court ordered the Plaintiff to file and serve a Notice of Motion for judicial review within 14 days. Terms 2 and 6 of the orders read:
    1. The Plaintiff file and serve a Notice of Motion for Judicial Review within 14 days of today’s date

...


6.The matter be adjourned to 19 September 2024 at 9.30am for Directions.

  1. It is contended on behalf of the First, Second and Fourth Defendants that the last day for the Plaintiff to file its Notice of Motion for substantive in compliance with the order was 11 September 2024. That contention was not challenged by the Plaintiff. In the Court’s view the document should have been filed by the close of business on the 6 September 2024. Nothing of moment however turns on that difference.
  2. By letter dated 13 September 2024 the State, through its lawyers, Mel & Henry, advised the Plaintiff to discontinue the proceedings for being incompetent because its Notice of Motion filed 10 August 2024:
    1. was in breach of the Order 16 r 5(1) of the NCR; and
    2. ceased to exist after the Originating Summons seeking leave for Judicial Review was determined and orders made on 23 August 2024; and
    1. had not been filed in accordance with Term 2 of the orders of the Court of 23 August 2024.
  3. Order 16 r 5 (1) of the NCR provides:

5. Mode of applying for judicial review


(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.


  1. Order 16 r5 (2) relates to service on persons directly affected and is not relevant for present purposes.
  2. The Plaintiff was given until the close of business on 18 September 2024 to discontinue its proceedings in the light of the asserted defects and forewarned that an application for dismissal with indemnity costs would be filed otherwise.
  3. On 17 September 2024, the Plaintiff filed its Notice of Motion at address the defect.
  4. On 18 September 2024 the First, Second and Fourth Defendants filed it foreshadowed Motion for dismissal.
  5. On 4 November 2024 the matter returned for directions at which time the Court listed both applications for hearing on 11 December 2024.

THE ISSUES


  1. Both parties raise competency issues. The Plaintiff raises a competency issue with respect to whether the First, Second and Fourth Defendants evidence a proper jurisdictional basis in their Notice of Motion, namely its use of a conjunctive word with respect to Order 13 r13 (2) and s 155(4) of the Constitution in that it is contended that they have relied upon s 155(4) of the Constitution together with Order 16 r13 (2), contrary to case law, given the existence of primary jurisdiction in Order 16 of the NCR. It is contended that having invoked the incorrect jurisdiction the motion is incompetent and an abuse of process. It is further contended that the application is incompetent by reason of reliance on the ground of the proceedings being vexatious and frivolous, when those words are not adopted by Order 16 r 13(13)(a), that section referring to the proceedings being incompetent, the grounds relied upon by the First, Second and Fourth Defendants only provided in Order 12 r 40(1), (2) and (3) of NCR, which do not apply to the exclusive process under Order 16 of the NCR.
  2. The First, Second and Fourth Defendants also contend that the Plaintiff’s proceedings are an abuse of process by reason of the Plaintiff having failed to file a Notice of Motion under Order 16 r 5 (1) for substantive relief and its failure to then file a Notice of Motion to that effect as ordered by the Court.
  3. The issue that emerges on all submissions and the evidence is whether the Plaintiff’s Notice of Motion filed 10 August 2024 is an abuse of process by reason of it filing its Notice of Motion for substantive judicial review at the time it filed its Originating Summons for leave for judicial review and, if it is, whether it should be afforded an opportunity to remedy it. To that end, the Court may dispense with any requirements of the Rules in an appropriate case (Order 16 r 14). Whether the Plaintiff is also able to rely upon Order 16 r 8 as a ground for the orders it seeks - a provision that relates to interlocutory applications – will be dependent upon a finding as to whether there are judicial review proceedings on foot.
  4. While there was some argument during the hearing on the order of precedence the Court should take with respect to the hearing of the applications before it, for the reasons that will become clear, it is not a matter that requires addressing given the approach the Court intends to take in its consideration of this matter overall. Relevantly, the Court is satisfied that all parties had the opportunity to fully address the preliminary and substantive issues raised, either in support of their applications or in response and by way of reply, such that the order of addressing the applications before the Court is not a crucial factor. Both applications were listed for hearing on the same day, without demurrer, given their inter-relationship.

RELEVANT LEGISLATION AND RULES


  1. Order 16 r 5(1) has been detailed earlier.
  2. The application of the Plaintiff seeks to rely upon Order 16 r 8 and/or Order 16 r 13(14) of the NCR.
  3. Order 16 r 8 is in these terms:

8. Application for discovery, interrogatories, cross-examination etc


(1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

(2) In this sub-rule “interlocutory application” includes an application for an order under Order 9 Divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent of the parties.

(3) This Rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the State.
  1. Order 16 r 13 (14) provides:

14. Dispensation with requirements of these Rules


The judge may dispense with any requirements of these rule in an appropriate case.


  1. The First, Second and Fourth Defendants rely upon Order 16 r 13(13)(2)(a) & (2)(b) of the NCR [1](misdescribed in their application) which is in these terms:

(2) Summary disposal


(a) Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.


(b) The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.


  1. Section 155(4) of the Constitution states:

155. THE NATIONAL JUDICIAL SYSTEM


(4) Both the Supreme and National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of the case.

ARGUMENTS


  1. An overview of the Plaintiff’s submissions with respect to the competency of the application of the First, Second and Fourth Defendants was outlined earlier and does not need repeating.
  2. With respect to the preliminary issue it is submitted on behalf of the Plaintiff inter alia that the First, Second and Fourth Defendants’ Notice of Motion is defective for wrongly pleading or invoking the Court’s jurisdiction Section 155(4) of the Constitution and the inherent jurisdiction of the Court when there is a primary right or jurisdiction in Order 16 of the NCR and is otherwise an abuse of process for not properly engaging or invoking the Court’s jurisdiction. Further, borrowing from the words of Order 12 r 40 of the NCR when the proceedings involve Order 16 is an abuse of process.
  3. With respect to the substantive application, it is the submission on behalf of the Plaintiff inter alia that:
    1. It encountered practical difficulty complying with Term 2 of the Orders because a Notice of Motion in similar terms and intended for substantive review was filed and on the Court file at the time the Plaintiff had filed its Originating Summons seeking leave for judicial review and Term 2 would amount to a duplication. Reliance to that end was placed on the decision of Philip Isu & Ors v John Ofoi & the State [2014] PGNC 216; N5518 wherein the Court held that the filing of the Notice of Motion for substantive judicial review together with the Originating Summons seeking leave was sufficient to invoke the Court’s jurisdiction to hear the judicial review application.
    2. Given the practical difficulty that presented for the Plaintiff, the Notice of Motion for substantive relief having been filed in error, the Plaintiff took corrective steps by filing the current application on 17 September 2024 as Term 6 of the order made the matter returnable on 19 September 2024 hence the applicant intended to move his application by the consent of the parties as the proceedings were still at the leave stage.
    1. The existing Notice of Motion was not struck out by the Order of 23 August 2024 to make way for the new Notice of Motion to be filed and served.
    1. The non-compliance with the order was not a deliberate failure to comply but arose by reason of a practical difficulty affecting compliance, the failure not serious or continuous because the Plaintiff realised it first and took immediate steps to request the Court through application to intervene and issue direction to resolve the difficulty.
    2. There is a good explanation for the non-compliance, the non-compliance was not deliberate, the Plaintiff doing all it could to remedy the problem and the interests of justice requiring the reliefs sought in the Notice of Motion be granted.
    3. If it is necessary to remedy any defect in its current Notice of Motion if should be permitted to do so as no prejudice will arise to the Defendants.
    4. There are serious and meritorious issues, and the interest of justice requires this Court to exercise its discretion to allow the matter to proceed to a substantive hearing.
  4. It is the submission of the First, Second and Fourth Defendants, in summary, that the proceedings are frivolous and vexatious and an abuse of court process because:
    1. the Notice of Motion filed on 10 August 2024 ceased to exist after the Originating Summons seeking leave for judicial review was determined and an order made on 23 August 2024;
    2. the reliance by the Plaintiff on its Notice of Motion filed 10 August 2024 is a breach of Order 16 r 5 (1) of the NCR which provides that subject to sub-rule 2, when leave has been granted to make an application for judicial review the application shall be made by Notice of Motion to the Court.
    1. There is no pending judicial review application before the Court, the Plaintiff non- compliant with the order of this Court of 23 August 2004 that he do so within 14 days of that date.
    1. The proceedings are frivolous, vexatious and an abuse of Court process.
    2. The Court has inherent powers to manage and control proceedings before it.
  5. It is the submission on behalf of the Third Defendant that:
    1. The Plaintiff’s application raises a threshold issue to do with whether the Plaintiff’s Notice of Motion for substantive relief can be entertained and if not whether the Plaintiff should be granted the opportunity to rectify the situation either by way of the dispensation of the relevant rule or by extension to enable it to file a further Notice of Motion for substantive review.
    2. The Plaintiff has offended Order 16 r 5(1) by filing its Notice of Motion pursuant to the order on 10 August 2024 before leave for judicial review had been granted on 23 August 2024.
    1. The Plaintiff discloses no reasonable cause of action in its Statement in Support filed 10 August 2024 at [24] because:
      1. The pleading in Ground 1 which raises the issue of the Second Defendant’s power to rely on a policy submission from the Third Defendant does not correctly identify an error in the Second Defendant’s process and procedures in deliberating and awarding contracts and has no cause of action.
      2. Ground 2 is not part of the procedure relating to the awarding of a contract pursuant to the National Procurement Act and therefore evidences no cause of action.
      3. The grounds are otherwise ambiguous, not properly pleaded and or a statement and thus evidences no cause of action.
    1. With respect to the Plaintiff’s Notice of Motion filed 17 September 2024, the Plaintiff’s motion is a reaction to the First, Second and Fourth Defendant’s letter and demonstrates that the Plaintiff committed the error brought to its attention. Its application should be refused because the rules are clear on the process for judicial review which the Plaintiff breached.

CONSIDERATION


  1. Whether the First, Second and Third Defendant’s Motion filed 18 September 2024 is or is not incompetent for the reasons advanced on behalf of the Plaintiff requiring dismissal the Court on its own initiative may identify abuse of its procedures and address the issue, in this case, one that centres on whether the Plaintiff failed “to comply with directions or orders issued under the Order 16 of the NCR or under these Rules or on any other competency ground” (Order 16 r 13(13)(a) and Order 16 r 13(13(b)(ii)) and if it did, whether the Plaintiff should be allowed to remedy the matter. That is the critical issue here.
  2. The Court has an inherent jurisdiction to dismiss proceedings summarily for being an abuse of its process. Subject to jurisdictional limits fixed by Statute, the Court has wide powers to manage and control proceedings before it, to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly, fair and timely manner, to weed out actions that do not disclose a reasonable cause of action, that are frivolous, vexatious or an abuse of process or are irregular and to prevent the misuse of its procedural rules that are unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute (Karl Paul v Aruai Kispe [2001] N2085 per Injia J (as he then was), cited with approval in Keka v Yafaet [2018] SC1673 at [26] and Bluewater International Limited v Mamu [2019] SC1798 (Bluewater) at [38]).
  3. In Bluewater the Supreme Court (Kandakasi DCJ, Pitpit & Dingake JJ) said at [39]-[40]:
    1. The Supreme Court also had regard to the decisions in Paul & Mary Bal v. Kenny Taiya (2003) N2481 and Chefs Secret Limited v. National Capital District Commission [2011] N4217. In both cases, the Court recognised the discretion vested in the Court to strike out proceedings on its own motion specifically in circumstances where s.5 of the CBASA has not been complied with, which renders the proceedings incompetent. This line of cases, urges the Courts not to take a back seat. Instead, they require the Courts to be vigilant in their delivery of justice by ensuring that parties comply with stipulated and mandated procedures.
    2. Having regard to these authorities, the Supreme Court for the case before it, found in favour of the National Court having the jurisdiction to raise the issue and strike out or dismiss proceedings on its own motion. The Court further found this as a necessary part of its inherent jurisdiction to control and manage the proceedings before it.

[Underlining added]


  1. An abuse of process means that there is a process which is being abused by someone. That usually entails someone using a process or procedure provided for by law contrary to its intended purpose, objective or proper and intended use (see Wartoto v The State [2015} PGSC 1; SC1411 (Wartoto) (per Sakora J and Kandakasi J (as he then was) at [37]).
  2. In Andrew Nagari v. Rural Development Bank; Rural Development Bank v. Andrew Nagari [2007] N3295 (cited with approval in Wartoto) the Court said at [38] with respect to an abuse of process:

The Court also has the inherent jurisdiction to dismiss proceedings summarily for abuse of its process. ... The Court's power in this regard... is wide. The phrase "abuse of process" connotes that the process of the Court must be used properly and bona fide and is not to be abused. Thus, where the Court's machinery is improperly and incorrectly used, the Court has the duty to prevent such abuse of its process.


[Underlining added]


  1. The Plaintiff abused the processes of the Court by filing its Notice of Motion pursuant to Order 16 r 5(1) before it had been granted leave for judicial review and then failing to comply with a direction of the Court that it do so, thereafter taking no steps to remedy its breach until forced to do so by the State.
  2. The substantive application for relief by way of judicial review, once leave is granted, must be by way of Notice of Motion. It is a fundamental step. It is one that occurs after the grant of leave in a separate application for judicial review by way of Notice of Motion.
  3. The Plaintiff did not use the process of judicial review properly. The proper process was for the Plaintiff to file a Notice of Motion as it was required to do thus invoking the jurisdiction of the Court to hear its application for judicial review pursuant to its grant of leave and in compliance with the order of this Court on 23 August 2024.
  4. The result of not filing a Notice of Motion is that there is no application for substantive relief on foot and the steps contemplated by Order 16 r (2), (3), (4) and (5) cannot take place.
  5. While the Plaintiff relies upon the decision of the National Court in Philip Isu & Ors v John Ofoi and The State (supra) to support its argument that the Notice of Motion for substantive relief can be filed at the same time at its Originating Summons for leave for judicial review and relied upon, that decision was handed down on 3 March 2014, and must be viewed in light of subsequent Supreme Court authority on point that do not support the Plaintiff’s argument.
  6. In Kalinoe v Paul Paraka Lawyers [2014] SC 1366, a decision handed down on 10 July 2014, the Supreme Court (Kandakasi, David, Murray JJ), said:

25. Thereafter, after some further consideration of other points His Honour considered relevant and commented on the procedure to follow in judicial review in these terms:


"In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 and O 16 r 5 (2)."


26. We are respectfully of the view that, His Honour's interpretation and understanding of the provisions of O.16, r.3 (8) and O.16, r.5(2), in terms of the above is correct. Accordingly, we adopt them as our own and add for clarity sake that, O.16, r.5(1) and (2) provides as to the steps to take once leave has been granted. Hence how the whole process of judicial review should work out is as follows:

(1) An Originating Summons is filed seeking only one relief, namely leave for judicial review together with a Statement as described by O.16, r. 3(2)(a) and an affidavit verifying the facts relied by the applicant.
(2) Copies of the documents under (1) above should then be served on Secretary for Justice, not less than 2 days before the date set for its hearing (O.16, r.3).


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


(5) 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 motions rules prior to a hearing and determination of the substantive review.

(6) 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 from the grant of leave.

27. Carefully noting the foregoing discussions, two things are immediately clear to us. First, prior to the grant of leave for judicial review or at the leave stage, no party can ask for and obtain any other relief. Secondly, following on from that, it is clear that, one cannot seek and obtain a substantive relief at the leave stage. That would come after or with the hearing and determination of substantive review.


(Underlining for emphasis)


  1. Following the handing down of the decision in Kalinoe v Paul Paraka Lawyers [2014] SC 1366, a differently constituted Supreme Court in Alex Timothy v Hon Francis Marus [2014] SC 1403, on 24 October 2014, had cause to reiterate these principles. The issue was whether the trial judge had erred in entertaining and upholding an application to dismiss judicial review proceedings which had been brought under NCR, Order 16, the application however made and moved pursuant to NCR, O 4 r 36 when it should have been brought under the relevant provisions of NCR, Order 16 itself. Commencing at [17] of the judgment, Injia CJ & Davani J said this:
    1. Clearly here, there is, in our view, a misconception by the trial judge of the fundamental difference between an Order 4 Originating Summons and an Order 16 Originating Summons. Though both proceedings are commenced by Originating Summons, in an Order 4 Originating Summons, the plaintiff brings an action seeking declaratory or injunctive relief as of right and the plaintiff does not need leave of the court to bring such action. The Originating Summons constitutes the action itself. In an Order 16 Originating Summons, a prospective applicant for judicial review must firstly obtain leave to pave the way for the judicial review. If leave is granted, the Originating Summons is then determined. As is the mandated process, once leave is granted, the action is then commenced by an application for judicial review by way of a Notice of Motion. Upon grant of leave for judicial review and upon filing a notice of motion instituting the substantive application, the Originating Summons has already been determined. It is wrong to seek to apply to dismiss the Originating Summons as if it were still alive and pending to be tried.
    2. These peculiarities and processes, common only to Judicial Review proceedings, were discussed at length in Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117.

[Underlining for emphasis]


  1. It is helpful, at this juncture, to review the principles enunciated in Peter Makeng v Timbers (PNG) Limited & Others (2008) PGNC 78; N3317 as to the correct procedure to be followed. In that case, Injia DCJ (as he then was) said at [37] and [41]:

In terms of the procedure for grant of leave for judicial review an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice of many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a motion seeking the same relief as the Originating Summons should cease as it only confuses the procedure and it is inconsistent with the provisions of Order 16 Rule 3 and Order 16 Rule 5 (2).

‘’’


Upon grant of leave, a Notice of Motion seeking substantive relief under Order 16 Rule 5 (1) should be filed and served.


[Underlining added]


  1. The relevant principles that arise from these authorities were later considered by Anis AJ (as he then was) in East New Britain Provincial Government v Public Service Commission Chairman – Dr Kereme [2017] N6706, where the learned Judge in a careful analysis said in part:

18. What does the law say about applying for judicial review? I firstly refer to the National Court Rules. Order 16 Rule 5 reads, Subject to Sub-section 2, when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court. Secondly, Order 16 Rule 13(5)(1) reads, Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following....Filing of Notice of Motion and supportive affidavits under Order 16 Rule 5(1)..... As for the case law, I refer to the Supreme Court case Alex Timothy v. Hon Francis Marus (supra). The Court held and I quote in part, Though Order 16 and Order 4 proceedings are both commenced by originating summons, they are distinct in that a prospective applicant in Order 16 Judicial Review proceedings, seeks leave to bring such application by way of an Originating Summons and it is only after grant of leave that a substantive application for judicial review is brought in a separate application by way of Notice of Motion, a process peculiar only to judicial review....(Underlining is mine). I also refer to the Supreme Court case Joshua Kalinoe v. Paul Paraka (2014) SC1366. At paragraph 26, the Supreme Court held and I quote in part, If leave for judicial review is granted, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5)..... These two (2) Supreme Court cases have acknowledged and derived some of their principles from the case Peter Makeng v. Timbers (PNG)Ltd (supra).

19. So, the substantive notice of motion for judicial review must be filed soon after leave is granted. In the present case, let me address the amended notice of motion. It was filed together with the amended originating summons on 30 October 2015. Leave to apply for judicial review was granted on 6 November 2015, which was the return date of the amended notice of motion. So, I ask myself this. Can this Court treat the amended notice of motion as a substantive notice of motion that is required under Order 16 Rule 5(1) of the National Court Rules? Based on Order 16 Rule 5(1) and the case law, my answer is, "no".


20. Let me illustrate. Judicial review has two sets of proceedings. The first set of proceeding is to seek leave and the vehicle or platform for that is an originating summons [Order 16 Rule 3(2)]. The second set of proceeding is to seek judicial review and the vehicle or platform for that is a notice of motion [Order 16 Rule 5(1)]. The two (2) documents (i.e., originating summons and notice of motion) under the two (2) sets of proceedings will bear the same court file number. I think this is where most confusion arises between counsel and litigants. They think or are under the impression that because the Court file numbers are the same, the two sets of judicial review proceedings (i.e., first commenced by originating summons and second by notice of motion) is actually one Court proceeding that is divided into two stages. That understanding, in my opinion, is wrong. In my view, the correct understanding should be this. An originating summons and a substantive notice of motion filed in a judicial review are related but are two distinct originating processes. They are linked together by the provisions under Order 16 of the National Court Rules. The Supreme Court in Alex Timothy v. Hon Francis Marus (supra) held on point at paragraph 17 of its judgment. I quote in part where it said, In an Order 16 Originating Summons, a prospective applicant for judicial review must firstly obtain leave to pave the way for the judicial review. If leave is granted, the Originating Summons is then determined. As is the mandated process, once leave is granted, the action is then commenced by an application for judicial review by way of a Notice of Motion. Upon grant of leave for judicial review and upon filing a notice of motion instituting the substantive application, the Originating Summons has already been determined. It is wrong to seek to apply to dismiss the Originating Summons as if it were still alive and pending to be tried. (Bold lettering is mine).


[Emphasis and underlining as in original]


  1. The principle that a Notice of Motion seeking judicial review can only be filed after the grant of leave is now well settled and has been followed in other National court decisions (see Mao v Saonu [2018] N7502 (per Murray J at [20] – [24]) and Akunia v O’Neil [2019] N8125 (Akunia) per Gavara-Nanu at [14] – [20]). In response to the submission on behalf of the Plaintiff, that the Court is not bound by these National Court decisions, they are of persuasive authority having referred to and followed principles espoused in the Supreme Court authorities, which bind this, Court.
  2. The Court concludes that the Plaintiff’s arguments to the contrary are, respectfully, flawed and have no legal basis. The terms of Order 16 r 5(1) and (3) are specific. Under Order 16 r 5 (1) it is mandatory that an application for judicial review be made by way of Notice of Motion “when” leave is granted. A Notice of Motion cannot be validly filed before leave is granted. This is what the Plaintiff did. It is fatal. It is an abuse of process (Akunia (supra) at [19] –[20]; see also Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96; SC2280 (Church of Jesus Christ of Latter-Day Saints) per Dowa J at [88]).
  3. It is an abuse of process that continues, as by its Notice of Motion filed 17 September 2024 the Plaintiff seeks as its primary position to rely upon its current Notice of Motion to ground its application for substantive judicial review in breach of the mandatory rule under Order 16 r 5(1) and in the face of established legal principle.
  4. Further, and while not a matter that requires consideration given the Court’s findings for the reasons articulated, it is trite to observe that a proceeding that is not on foot cannot evidence a “reasonable cause of action” and would be one fairly described as “vexatious”, “frivolous” and an “abuse of the process of the Court” for the same reason.
  5. The power to dismiss the proceedings before the Court is a discretionary one, the Court able to dispense with the Rules in an “appropriate case” (Order 16 r 13(14)) and grant leave to extend time to file a Notice of Motion for substantive review (see Bailasi v Kali [2011] PGNC 264; N5016). As to whether the circumstances of this case suggest that the Court should exercise its discretion in favour of the Plaintiff, the following matters inform its discretion.
  6. If the Plaintiff found itself in a “practical difficulty” (affidavit of Mr Lains filed 17 September 2024), it was a difficulty of its own making. It was one that emanated, respectfully, from a flawed understanding of the judicial review process. Judicial review proceedings involve two sets of proceedings, the leave stage - the vehicle or platform for leave being granted being the Originating Summons, and the review stage following the granting of leave - the vehicle or platform for that being the Notice of Motion for substantive judicial review under Order 16 r 5(1).
  7. As noted earlier, the Plaintiff’s Notice of Motion filed 10 August 2024 was filed in breach of Order 16 r 5(1) of NCR. Leave to commence judicial review proceedings was not granted until 23 August 2024, thirteen (13) days after the filing of the Plaintiff’s Notice of Motion for substantive judicial review. At the date of the filing of the Plaintiff’s Notice of Motion on 10 August 2024, its Notice Motion for judicial review had no legal validity. In colloquial parlance, the Plaintiff’s Notice of Motion was “a hat without a peg to hang on” because there had been no grant of leave before 23 August 2024. The Notice of Motion did not need to be discharged, as submitted on behalf of the Plaintiff. If the Plaintiff was, however, of the view that it did, or that its existence presented a difficulty for it then it should have sought its withdrawal or discharge following the grant of leave on 23 August 2024 at which time the Court made an order or direction that the Plaintiff file a Notice of Motion under Order 16 r 5(1) within 14 days. The purpose of the rules under Order 16 and the direction or order made by the Court under the Rules was to ensure that the judicial review proceedings are dealt with expeditiously (Bailasi v Kali (supra) at [7]).
  8. The Plaintiff’s failure to do so was not only in breach of Order 16 r 5(1) of NCR, it was also in breach of the direction or order of 23 August 2024. While the Plaintiff’s oral and written submissions are to the effect that the document was filed by mistake, the title page and the wording of the document suggests otherwise. The title page is headed “NOTICE OF MOTION FOR JUDICIAL REVIEW PURSUANT TO ORFER 16 RULE 5 OF THE NATIONAL COURT RULES.” Terms 1 to 6 detail the substantive relief sought by the Plaintiff, Term 7, however, then seeks interim restraints. Those restraints were made.
  9. Relevantly, at the hearing of the leave application on 23 August 2024, the Court queried Counsel for the Plaintiff as to why a Notice of the Motion under Order 16 r 5(1) had been filed together with the Originating Summons. The Court had been asked to consider the Plaintiff’s Draft Orders handed up during the hearing which inter alia sought the making of the following order:
    1. The Plaintiff’s Notice of Motion filed on 10 August 2024 for judicial review is judicially recognised to have been filed after leave was granted for the purposes of Order 16 r 5(1) of the National Court Rules.
  10. It is not therefore correct to say that at the time of the grant of leave and the making of consequential orders that the Plaintiff did not anticipate a difficulty (Affidavit of Mr Lains filed 17 September 2024 at [5]). The Draft Orders suggest that the Plaintiff was aware that their Notice of Motion was defective.
  11. The Court refused to make that particular order, directing the Plaintiff to file a fresh Notice of Motion within 14 days. Counsel for the Plaintiff was asked if he had any difficulty with that course. None was raised. Accordingly, the Plaintiff could have been under any misapprehension as to what was required and that was to file a fresh Notice of Motion under Order 16 r 5(1), the Court viewing what it had done as irregular and confusing, an irregularity acknowledged by Counsel for the Plaintiff at the time.
  12. It is submitted by learned Counsel for the Plaintiff that the Court should draw a distinction between Akunia and the facts of this case based on a lack of corrective measure taken by the plaintiff in that case as opposed to the Notice of Motion filed on 17 September 2024 by the Plaintiff in this matter seeking correction. However, it is a reasonable inference to draw on the evidence and from the chronology that the Plaintiff was content to ignore the Court order or direction for it to file its Notice of Motion until contact was made by the State on 13 September 2024 giving it until 18 September 2024 to withdraw the proceedings by reason of its non-compliance with the order and defects which rendered the proceedings an abuse. It was only then that the Plaintiff took the action it did seeking to remedy the defect.
  13. Against that background, the Plaintiff’s submission that its application was filed on 17 September 2024 because Term 6 of the orders made the matter returnable on 19 September 2024, its application intended to be moved by the consent of the parties as the proceedings were still at the leave stage, cannot be accepted.
  14. On the Plaintiff’s own case, if accepted, it was aware of the issue (its “mistake”) on 23 August 2024. It did nothing thereafter to either file an application for leave to vary the terms of the Order of 23 August 2024 before the 14 days had concluded or engage with the State on a timely basis to seek its consent to a variation of the order.
  15. The order or direction of 23 August 2024 that the Plaintiff file a Notice of Motion within 14 days of the Order was in clear terms. It was not a “trivial technical failure” as submitted on behalf of the Plaintiff at [24] of written submissions, a concerning submission in itself. There could be no confusion about the Plaintiff’s obligations, and if there was, it lay with the Plaintiff. Filing its application two days before a Court return date is not a sufficient answer and the Plaintiff’s view it may have achieved a variation to the order with the State’s consent was optimistic, given the State’s communication to it in the letter of 13 September 2014 served on 17 September 2024 suggesting any consent to that course was unlikely to be forthcoming. In that context the Court can place little weight on the Plaintiff’s submission that the Plaintiff took immediate corrective action and filed its application first in time. It did so in response to the State’s communication requiring it to withdraw, failing which the State would seek dismissal.
  16. Whilst the Court acknowledges the granting of leave on the basis that the requirements for leave, including arguable case, have been met by the Plaintiff and whilst it accepts that the Court should always be slow to dismiss a proceeding in its entirety, it would be a mis-characterisation to describe that outcome as a “technical knockout” in the circumstances of this case as submitted by learned counsel for the Plaintiff and based on the principles enunciated in the Church of Jesus Christ of Latter-Day Saints. The facts of this case are distinguishable from the matter before the Supreme Court. In that case the appellant was found to have done nothing wrong, having met all the requirements under the Lands Act, seeking the assistance of the Court the moment it became aware of something adverse having occurred against its interest and title in the land. There was no evidence of its improper use of Court procedure or non-compliance with a Court order or direction.
  17. It is a submission, respectfully, that evidences not only a misunderstanding with respect to judicial review procedure but a proper understanding of the importance of compliance with the NCR and Court directions or orders as a means of ensuring the integrity of the Court process. To continue the boxing analogy utilised by Counsel for the Plaintiff, a “technical knockout” is a particular rule that exists to ensure the welfare of participants and the integrity of the sport of boxing. It is not a rule based on unfairness but because one fighter is deemed unable to continue safely. To allow a fight to continue in those circumstances may have consequences, including bringing the sport into disrepute.
  18. The Court is unable to conclude, on balance, that the Plaintiff should be given a further opportunity to remedy its defect, that is, to do something it was ordered to do and failed to do six (6) months ago. It should not need to be said that Court directions and orders either mean something or they do not. Courts, as the guardians or protectors of its process, are required to take firm control of the business of the Court and remain ever vigilant against abuse of its processes. Parties who seek the Court’s assistance, and its time, should understand that Court orders and directions are not mere “suggestions” or “guidelines” that can be opted out at will, or without consequence. They enable the often complex business of a busy Court to be conducted in an orderly and fair and timely manner meeting the expectation of the Court and the parties to ensure that justice is done to all parties (Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642 at [9]).
  19. In conclusion:
    1. The Court on its own motion has the power to dismiss the Plaintiff’s proceedings as being an abuse of process. It does so by reason of the Plaintiff’s failure to comply with the mandatory provisions of Order 16 r 5(1) and the Plaintiff’s further failure to comply with a direction or order of the Court. There are no valid proceedings for substantive judicial review on foot, the proceedings, as a result, incompetent and an abuse of process.
    2. In filing its Notice of Motion for substantive relief at the same time as the Originating Summons for leave for judicial review the Plaintiff used the Court processes in a manner for which it was not intended, amounting to a serious abuse of Court process.
    1. The Plaintiff has failed to provide a good enough explanation for its non-compliance such as to enable the Court to conclude it should permit the relief it now seeks, the Court unable to view its earlier non-compliance as either “trivial” or “technical”. The Plaintiff’s attempt to characterise its non-compliance as a “difficulty” over which it had little control is rejected. The Plaintiff failed to comply with the mandatory requirement of Order 16 r 5(1). It then compounded its error by failing to comply with a Court direction or order that would have remedied its mistake, having agreed to that course on 23 August 2024. It now seeks a further indulgence from the Court having done nothing to correct its non-compliance until the State took the steps it did. This is a factor to which the Court accords significant weight in the circumstances of this case, one that favours dismissal of the Plaintiff’s proceedings.
    1. The Plaintiff’s non-compliance with the Court’s direction or order is a serious matter. While one open to remedy by way of the relief afforded under the NCR, it is not one that would meet the overall demands of justice or the prejudice to the State which overrides the prejudice to the Plaintiff in the circumstances. All litigants are entitled to expect the timely resolution of litigation. Even a short delay can create prejudice. Those who seek the assistance of the Court are required to prosecute their matter with diligence and in accordance with the NCR and orders of the Court. The Court accepts there is a substantial prejudice to the Defendants where the issue before the Court is one of significant public interest arising from the delayed construction of a road upgrade in Central Province viewed by the State as bringing critical economic benefits to the public and where there are restraints in place which have operated in a vacuum by reason of there being no proceedings on foot as a consequence of the Plaintiff’s conduct.
    2. While the grant of leave in favour of the Plaintiff, one predicated on the requirement of an arguable case having been made out at an ex parte hearing, is a relevant factor that supports the Plaintiff’s application for relief from its error, one that also involves the public interest, the interests of justice are also served by maintaining public confidence in a justice system that respects and enforces its orders.
    3. The Court has power under Order 16 r 14 to dispense with any requirements of its rules in an “appropriate case”. For the reasons outlined, this is not an appropriate case. Order 16 r 8 of the NCR affords the Plaintiff no assistance as there are no judicial review proceedings on foot in respect of which the Plaintiff may seek interlocutory relief.
  20. In consequence, the proceedings for judicial review are dismissed by reason of the Plaintiff’s failure to comply with a Court order or direction and by reason of the proceedings being otherwise incompetent and an abuse of process.
  21. The Plaintiff’s Notice of Motion filed on 17 September 2024 is dismissed.
  22. The First, Second and Fourth Defendants seek costs on an indemnity basis. The Third Defendant makes no submission on costs. Costs are in the discretion of the Court. Costs normally follow the event usually on a party/party basis, unless a case is made out against the normal cause following and or the costs to be ordered at a rate other than the usual party/party basis. While the Court accepts that the Plaintiff was forewarned and the Defendants have been wholly successful in their application, an award of indemnity costs is a rare order, one made only in exceptional circumstances (Opi v Telicom PNG Ltd [2020] PGNC 168; N8290 at [235] – [236]). I am not satisfied that the conduct of the Plaintiff and/or its lawyer could be said to be so improper, blameworthy or unreasonable such that punishment is warranted in the form of an indemnity order for costs. Costs should follow the event. In its discretion the Court proposes to order costs on the usual party and party basis.

ORDERS


  1. The court makes the following orders:
    1. Pursuant to Order 16 r 13(13)(2)(a) and (b) (ii) of the NCR the proceedings OS (JR) No 69 of 2024 is dismissed.
    2. The Plaintiff’s Notice of Motion filed 17 September 2025 is dismissed.
    3. Term 4 and 5 of the Orders of 23 August 2024 are discharged.
    4. The Plaintiff pay the Defendants costs on a party and party basis to be agreed or taxed.

Time to abridge.


Lawyers for the plaintiff: Hardy & Stocks Lawyers
Lawyers for the first, second and fourth defendants: Mel & Henry Lawyers
Lawyers for third defendant: Sasingian Lawyers

[1] Misdescribed as Order 16 r 13(13)(2)(a) and (2)(b)(a) of the NCR at [2] of the Notice of Motion, the relevant provision with respect to the latter “(2)(b)(i)” not “(2)(b)(a)”, also incorrectly referred to in submissions on behalf of the Plaintiff as “(2)(b)(a)”

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