OS 654 OF 2008; Zachery Gelu and Isaac Lupari and Tau Liu v Sir Michael T. Somare, MP, Prime Minister & Appointing Authority Of The Commission Of Inquiry Into The Department of Finance and Maurice Sheehan, As Chief Commissioner And Justice Cathy Davani And Don Manoa As Commissioners Comprising The Commission Of Inquiry Into The Management Generally Of Public Monies By The Department Of Finance and The Independent State of Papua New Guinea (2009) N3647

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 16 April 2009
• Court: National Court
• Citation: (2009) N3647
• Year: 2009
• Judgement Number: N3647

Full Title: OS 654 OF 2008; Zachery Gelu and Isaac Lupari and Tau Liu v Sir Michael T. Somare, MP, Prime Minister & Appointing Authority Of The Commission Of Inquiry Into The Department of Finance and Maurice Sheehan, As Chief Commissioner And Justice Cathy Davani And Don Manoa As Commissioners Comprising The Commission Of Inquiry Into The Management Generally Of Public Monies By The Department Of Finance and The Independent State of Papua New Guinea (2009) N3647

National Court: Hartshorn J

Judgment Delivered: 16th April 2009

N3647

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 654 OF 2008

BETWEEN:

ZACHERY GELU

First Applicant

AND:

ISAAC LUPARI

Second Applicant

AND:

TAU LIU

Third Applicant

AND:

SIR MICHAEL T. SOMARE, MP, PRIME MINISTER & APPOINTING AUTHORITY OF THE COMMISSION OF INQUIRY INTO THE DEPARTMENT OF FINANCE

First Respondent

AND:

MAURICE SHEEHAN, AS CHIEF COMMISSIONER AND JUSTICE CATHY DAVANI AND DON MANOA AS COMMISSIONERS COMPRISING THE COMMISSION OF INQUIRY INTO THE MANAGEMENT GENERALLY OF PUBLIC MONIES BY THE DEPARTMENT OF FINANCE

Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Hartshorn J.

2009: 13th March,

: 16th April

PRACTICE AND PROCEDURE - Application to Dismiss Judicial Review Proceeding for Want of Prosecution – Order 4 Rule 36 National Court Rules - whether appropriate Rule used for application to dismiss judicial review proceeding - likelihood of prejudice caused to defendants by delay in prosecuting proceedings to be considered - onus upon applicants to prosecute their claim especially in judicial review proceedings - applicants not properly prosecuting proceeding with due despatch – Application to dismiss proceedings for want of prosecution granted

Facts:

The applicants applied for leave to judicially review a decision of the Prime Minister. That decision was to appoint a Commission of Inquiry concerning “the Management Generally of Public Monies by the Department of Finance”. This court granted leave on the 17th November 2008. The respondents apply for this proceeding to be dismissed for want of prosecution or for failure to comply with a direction of this court.

Held:

1. An application to dismiss judicial review proceedings is able to be made pursuant to Order 4 Rule 36 National Court Rules.

2. As judicial review proceedings are concerned with administrative decisions and the exercise of administrative functions there is a legitimate public interest in having them finalised as soon as possible.

3. Judicial review applications should be dealt with expeditiously and delays which would not be considered lengthy in the context of trial proceedings are likely to be considered so in judicial review proceedings.

4. The applicants have not properly prosecuted this proceeding with due despatch and the reasons given for delay are not satisfactory.

5. This proceeding is dismissed for want of prosecution.

Cases cited:

Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444

Joseph Yonge v. Luke Niap (2001) N2101

Kelly Kerua v. Council Appeal Committee of the University of Papua New Guinea (2004) N2534

Rumpia v. Buri (2006) N3035

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Counsel:

Mr. N. Tame, for the Applicants

Mr. I.R. Molloy, for the Respondents

16 April, 2009

1. HARTSHORN J: The applicants applied for leave to judicially review a decision of the Prime Minister. That decision was to appoint a Commission of Inquiry (Commission) concerning “the Management Generally of Public Monies by the Department of Finance”. This court granted leave on the 17th November 2008.

2. The respondents (State) apply for this proceeding to be dismissed for want of prosecution or for failure to comply with a direction of this court.

Want of prosecution

3. The State applies pursuant to Order 4 Rule 36 National Court Rules and Order 16 Rule 13(2) Judicial Review (Amendment) Rules 2005 for the proceeding to be dismissed for want of prosecution. I will consider the application under Order 4 Rule 36 first. It is relevantly as follows:

“Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.”

4. As to Order 4 Rule 36, Counsel for the applicants submits that:

a) the rule does not apply as judicial review proceedings are governed exclusively by Order 16 of the National Court Rules and that Order 4 Rule 36 applies to originating summons proceedings other than judicial review.

b) there has not been delay on the part of the applicants. The applicants have taken all necessary steps to have the proceeding determined and it is the fault of the staff of the National Court in not fixing the matter for hearing.

Order 4 Rule 36 - judicial review proceedings

5. Counsel for the State submits that Order 4 Rule 36 National Court Rules is able to be relied upon in judicial review proceedings and that the cases of Joseph Yonge v. Luke Niap (2001) N2101 and Rumpia v. Buri (2006) N3035 are on point. Yonge’s case (supra) was a successful application to dismiss an originating summons application for leave to apply for judicial review pursuant to Order 4 Rule 36 National Court Rules. Kandakasi J. stated that:

“For want of prosecution generally of proceedings commenced by Originating Summons, the provisions of Order 4 Rule 36 are relevant.”

6. Then in Rumpia’s case (supra), Kirriwom J. dismissed judicial review proceedings for want of prosecution after leave to apply for judicial review had been granted, pursuant to Order 4 Rule 36.

7. The Supreme Court in Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444, stated at 450 that Order 16 of the National Court Rules:

“is an exclusive procedure provided by the Rules (O16 r1).”

In Peter Makeng v. Timbers (PNG) Ltd (2008) N3317, Injia DCJ (as he then was) stated that:

“It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v. Hamidian Rad (supra). Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16.

8. The Hamidian Rad case (supra) concerned the proper procedure to be used when seeking an order in the nature of certiorari and so is not directly on point. Similarly the comments in Makeng’s case (supra) are in my respectful view, a correct statement as to the rules to be followed when applying for leave and for judicial review but not as to applications to determine judicial review proceedings.

9. As an aside, if it were otherwise, there would not have been any rule that could have been relied upon to determine judicial review proceedings before the amendment to the National Court Rules in 2005 apart from the court's inherent jurisdiction.

10. There is a further argument that as an application for judicial review is made by notice of motion pursuant to Order 16 Rule 5 National Court Rules after leave is granted, Order 4 Rule 36 does not apply as it only applies to proceedings commenced by originating summons. In my view this argument is not correct as when application for judicial review is made by notice of motion it is made in the proceedings that were commenced by originating summons that sought leave.

11. I am supported in this view when regard is had to Order 4 Rule 1 National Court Rules which is as follows:

“Subject to the provisions of any Act, regulations or rules but without prejudice to Order 8 Rule 38, proceedings in the Court under this Part shall be commenced by writ of summons or by originating summons.”

12. The word ‘Part’ refers to “Part 2 - Civil Jurisdiction” which is immediately before Order 3 in the National Court Rules. Part 2 includes Orders 3 to Order 17, including Order 16.

13. I note also that Order 16 was amended in 1985 to replace ‘originating summons’ and ‘summons’, with ‘notice of motion’.

14. Order 4 Rule 4 provides that:

“Proceedings may be instituted by motion, only if they relate to an interlocutory application.”

15. Order 4 Rule 37 provides that:

“An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.”

16. It is apparent therefore, that the amendment to Order 16 in 1985, replaced the mode of making an application for judicial review after leave has been granted, from a document that commences proceedings to one that is used to make an interlocutory application.

17. For the above reasons, I am satisfied that Order 4 Rule 36 National Court Rules can be relied upon in respect of applications to dismiss judicial review proceedings.

Due Despatch

18. Counsel for the applicants submits that since leave was granted on 17th November 2008, they have complied with all directions of this court and diligently prosecuted the matter, specifically:

· 18th November 2008 - the notice of motion for judicial review was filed and the application for interim relief argued.

· 21st November 2008 - interim relief application refused.

· 2nd December 2008 - attended for directions hearing but not listed.

· 8th December 2008 - matter adjourned pending hearings in...