Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014)

SC1403

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA No 95 of 2013

ALEX TIMOTHY
-Appellant-

V

HON. FRANCIS MARUS, MP
-First Respondent-

FRED KINI, CHAIRMAN OF PNG LAND BOARD
-Second Respondent-

SAM TAIAN, THOMAS BULLEN, THOMAS WEBSTER, GEORGE NASIONO, MAIA SIAGURU, as Members of the PNG Land Board
-Third Respondent-

PEPI KIMAS, The Secretary of the Department of Lands and Physical Planning -Fourth Respondent-

DEPARTMENT OF LANDS AND PHYSICAL PLANNING
-Fifth Respondent-

HON. PUKA TEMU, MP Minister for Land and Physical Planning
-Sixth Respondent-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Seventh Respondent-

Waigani: Injia CJ, Davani & Gabi JJ
2014: 1st July, October 29th

Practice and Procedure – Judicial Review Proceedings under Order 16 of the National Court Rules – Interlocutory applications – Application to dismiss proceedings for want of prosecution- Whether application should be brought under Order 4 r 36 or under O 16 r 13 of the National Court Rules
Practice and Procedure – Judicial Review Proceedings – peculiarity of Judicial Review Proceedings

Facts:
The appellant being aggrieved by the National Courts decision to dismiss Judicial Review proceedings he brought in the National Court under Order 16 of the National Court Rules (NCR), appealed, his grounds of appeal being that the trial Judge had erred when he dismissed the Judicial Review proceedings relying on Order.4 r.36 of the National Court Rules when the Respondent should have moved such an application under Order 16 Rule 13 of the National Court Rules.

Held:

1. Judicial review under NCR Order 16 is a special and exclusive procedure which deals with complains by person aggrieved by the decisions of public administrative bodies and persons exercising public power conferred by statute.
   
2. The Notice of Motion filed and moved by the respondent seeking an order dismissing the judicial review proceedings for want of prosecution under NCR, 0rder 4 Rule 36, had no application to the Judicial review proceedings brought under NCR, Order 16. The procedure for bringing such application is found in Order 16 Rule 16.
   

3. Though Order 16 and Order 4 proceedings are both commenced by originating summons, they are distinct in that a prospective applicant in 0rder 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. Conversely, proceedings commenced by Originating Summons under Order 4 is an action seeking substantive relief that is brought as of right. Interlocutory applications must be brought within their respective proceedings except where provisions for bringing such interlocutory applications under either of these provisions are expressly adopted.

Cases cited
Attorney General Michael Gene v. Hamidan Rad [1999] PNGLR 444
Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052
Hon Patrick Pruaitch MP v Chronox Manek (2010) N4149
Honourable Patrick Pruaitch MP v Chronox Manek (2011) SC1093
Mision Asiki v. Manasupe Zurenuoc (2005) SC 797
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:
R Lains for the appellant
M Phillip for the first respondent
M. Vate for the second, third, fourth, fifth, sixth and seventh respondents

DECISION

Injia CJ, Davani J

1. This is an appeal from the National Court's decision of 26th July, 2013, dismissing Judicial Review proceedings described as OS (JR) No. 136 of 2010, such application made pursuant to Order 4 Rule 36 of the National Court Rules (NCR).
   
2. On 26th July, 2013, the trial Judge, after hearing all counsel in relation to the application to dismiss, made orders that;
   
   1. The whole proceedings be dismissed;
      

2. The plaintiff vacate the land, the subject of these proceedings, failing which the police were authorised to use reasonable force to ensure that the plaintiff gives up the said land to the first respondent; and

3. The plaintiff to pay the costs of the application, awarded on a party/party basis and for each party to pay their own costs of "the remainder" of the proceedings. (re par. no. 3 of the Court order)

Background
3. The appellant, who was the plaintiff in the National Court Judicial Review proceedings, sought review of the National Land Board's decision to award a State Lease over land described as Section 7, Allotment 37, Granville, NCD (the 'Land') to the first respondent, Hon. Francis Marus MP. He filed the judicial review proceedings referred to above, on 29th March, 2010.

4. On 12th April, 2010, the National Court granted the appellant leave to review the National Land Board's Decision together with interim restraining orders, restraining the National Land Board from implementing the decisions it made in relation to the Land, amongst others.

5. On 22nd July, 2013, Korerua Lawyers for and on behalf of "the defendants" (as stated in the Notice of Motion) filed a Notice of Motion seeking to dismiss the proceedings for Want of Prosecution, application made pursuant to Order 4 Rule 36 of the National Court Rules and Rule 15 (1) (2) of the National Court Listing Rules 2005. The motion also sought further orders that the plaintiff (appellant in these proceedings), vacate the Land within 7 days from the date of the order. On 26th July, 2013, after hearing all parties on the application to dismiss, the Trial Judge dismissed the entire proceedings.

This Appeal and issues raised
6. On 20th August, 2013, Steeles Lawyers filed Notice of Appeal, for and on behalf of the appellant. Although the respondent filed an Objection to the Competency of the appeal, at the hearing of the appeal, they chose not to pursue it.

7. There are three (3) grounds in the Notice of Appeal which raise two main issues.

8. The first issue is, whether the trial judge erred in entertaining and upholding an application to dismiss the judicial review proceedings which had been brought under NCR, Order 16 such application which was made and moved pursuant to NCR, O 4 r 36 when such application should have been brought under the relevant provisions of NCR, Order 16 itself.
   
9. The second issue is, whether the trial judge erred in dismissing the judicial review proceedings when the parties were negotiating an out of court settlement of the action.
   
10. The first issue is a threshold issue which goes to the competency of the application advanced in the court below which means that we will deal with that issue first.
    
11. It has been long held that judicial review proceedings involve a challenge to administrative decisions made under statute. The procedure by which such proceedings are brought is set out in NCR, O 16. An authoritative statement of the principle with regard to the exclusive nature of the procedure found in Order 16 was enunciated by this Court in Attorney General Michael Gene v.Hamidan Radz [1999] PNGLR 444. That decision has been followed in many cases before this Court and the National Court: Mision Asiki v. Manasupe Zurenuoc (2005) SC 797. This court's decision in Sir Julius Chan v Ombudsman Commission (1998) SC557 is on point with regard to the National Court's jurisdiction to entertain interlocutory applications concerning summary dismissal of judicial review proceedings brought outside of Order 16. This case held that any such applications cannot be brought under procedures provided for ordinary proceedings such as NCR, O 12 r 8 (3); and that it must be brought within Order 16.
    
12. In an earlier decision of this Court, in The National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264, it was recognized that a person aggrieved by a decision made by a public authority may choose between seeking declaratory relief or an injunction as of right without seeking orders in the nature of prerogative orders with leave of the Court, in which case he can bring an action by way of Originating Summons or Writ of Summons or any other form of originating process. If such person were to seek orders in the nature of prerogative orders that includes declaratory orders and injunctions as consequential remedies, such proceedings must be brought under Order 16. This view was followed by the majority in Telikom PNG Ltd v ICCC (2008) SC906. Also in the Telikom case, the majority correctly interpreted the import of the Court's decision in the Hamidian Rad case where the majority held that an aggrieved person who chose to seek orders in the nature of prerogative orders, "was confined to Order 16". In the same vein, a person whose application for leave for judicial review is refused may bring an action for declaratory orders as of right by way of ordinary Originating Summons under Order 4 because a refusal of leave does not determine the merits of the claim: Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052; Hon Patrick Pruaitch MP v Chronox Manek (2010) N4149; Honourable Patrick Pruaitch MP v Chronox Manek (2011) SC1093.
    
13. A principle of procedural law that is distilled from all these cases decided by this Court is that where an applicant or plaintiff chose to apply for orders in the nature of prerogative orders, the procedure is found in Order 16 and it is exclusive. This principle is binding on the National Court.
    
14. In a number of cases before the National Court, several judges have departed from this principle and allowed an applicant for judicial review to move interlocutory applications under procedures prescribed for interlocutory applications in ordinary civil suits commenced by Originating Summons or Writ of Summons: see Miam v Dai (2009) N3699, Joseph Yonge v Luke Naip (2001) N2101, Kelvin Rumpia v Abaris Buri (2006) N3035, and Zachery Gelu v Sir Michael Somare (2009) N3647. The present case is one such case. In those cases, the judges have reasoned that because Order 4 provides the procedure for proceedings commenced by Originating Summons, judicial review proceedings which are also commenced by Originating Summons may be determined summarily under Order 4 Rule 36 (Originating Summons).
    
15. In the present case, the trial judge was faced with an objection by the appellant that the application that was before the court made under Order 4 Rule 36 was made under the wrong provision, that it was incompetent and that it should be dismissed. The trial judge accepted the respondent's submission that Order 4 Rule 36 was equally applicable to judicial review proceedings because both proceedings are commenced by Originating Summons. The trial judge said:
    

" I rule that the motion is competent in that it is based on order 4 rule 36 of the National Court Rules though I expressed some doubt as to whether this was the correct rule. On reflection having heard from both sides, I consider that order 4 rule 36 is broad enough to encompass or allow an application for dismissal for want of prosecution in relation to an order 16 judicial review application.

I hear what Mr Lains is saying about some Supreme Court decisions which generally support the view that order 16 is a self contained code or procedure, in particular Ombudsman Commission v Sir Julius Chan. I am very familiar with that judgment and there is some support for the view in it that order 16 is an exclusive code which supports the view that if you want to have judicial review proceeding dismissed, you need to rely on a provision or a rule in order 16 in order to do so. However, I do not think that Ombudsman Commission v Chan stands for the proposition that would be necessary to uphold Mr Lain's point here. It is not that specific point, it was not to do with an application for dismissal of the proceedings I recall.

"So, I am ruling that in judicial review proceedings, it is proper for a respondent to seek dismissal of the proceedings under Order 4 Rule 36, which is what the first respondent has done here. As order 4 rule 36 appears within division 4 of order 4 which applies by virtue of rule 23 of order 4, the proceedings commence by originating summons- judicial review proceedings are commenced by originating summons. So, I rule therefore that the motion is competent".

16. It is submitted for the appellant that the decisions of this Court in Attorney General Michael Gene v. Hamidan Rad [1999] PNGLR 444 and Sir Julius Chan v Ombudsman Commission (1998) SC557 were binding on the trial judge. It is further submitted that the trial judge erred in departing from these binding decisions. It is argued for the respondents that the trial judge did not err in assuming jurisdiction over the application made under Order 4 Rule 36 for the same reasons given in the cases decided by various judges of the National Court referred to above.
    
17. 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.
    
18. 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.
    
19. In the event, an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before leave for review is granted, then such an application is permissible but must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules.
    
20. This Court and the National Court have over the years, as is reflected in the decisions referred to above, emphasised the special and peculiar role played by the Judicial Review procedure. This process is exclusive which is why Order 16 guides the way Judicial Review proceedings are conducted. As Injia CJ said in Peter Makeng and others v. Timbers (PNG) Limited and others (supra) at par. 16;
    

"Judicial Review is a special procedure developed by the Courts to deal with complaints by person aggrieved by decisions made by public administrative bodies and persons exercising power conferred by statute..."

21. The previous view by the Courts in this jurisdiction that because proceedings were commenced by way of Originating Summons, that Order 4 Rule 36 applies, is clearly a misapprehension because as emphasised in the cases referred to above, an Originating Summons in a Judicial Review proceeding is not the same as an ordinary Originating Summons.
    
22. Additionally, Order 16 does contain its own provisions for summary disposal of an application for leave for review or the substantive application for judicial review for reasons of want of prosecution, want of competence or for any other reason. The Court may summarily dispose of a proceeding on application by a party, of the Court's own motion or on referral by the Registrar: Order 16 Rule 13 (2). The application must be made by Notice of Motion: Order 16 Rule 13 (1). Clearly, there is no room for a party to invoke Order 4 Rule 36 or any other similar provision found elsewhere in the National Court Rules.
    
23. In the case before us, leave for judicial review had been granted, meaning the substantive application for judicial review was alive, active and on foot. The substantive proceeding was then dismissed for want of prosecution under Order 4 Rule 36 when the trial Judge should have had recourse to the Order 16 process under Order 16 Rule 13 of the NCR. For the reasons given, we are satisfied that the trial judge erred in accepting the Notice of Motion filed and moved under Order 4 Rule 36 which had no application to the judicial review proceedings before him. The error committed by the trial judge goes to a breach of the fundamental requirement of the rules of court such that this breach resulted in a substantial miscarriage of justice.
    
24. We will allow the appeal and issue consequential orders.
    
25. Gabi J: His honour passed away before judgment was delivered. This judgment was delivered by the remaining judges with the consent of the parties: see s 3 of the Supreme Court Act.
    

Formal Orders

26. The formal order of the Court are;
    
    1. The appeal is upheld;
       
    2. The National Court's decision of 26th July, 2013 is quashed;
       
    3. The National Court proceedings OS (JR) No. 136 of 2010 is reinstated and to be listed before the Judicial Review Judge in Waigani, at a time appropriate to either the appellant or appellant's counsel, for directions to issue on the way forward;
       
    4. All respondents to pay the appellant's costs of the proceedings which costs will be assessed and equally apportioned between the first respondent; second respondent; the third respondent; PNG Land Board; and the Department of Lands and Physical Planning.

__________________________________

Steeles Lawyers: Lawyers for the Appellant
Korerua & Associates: Lawyer for the first respondent
Office of Solicitor General: Lawyer for the second, third, fourth, fifth, sixth and seventh respondents