Mathew Vingome v John Diala and Sam Kaipu and John Luluaki and University of Papua New Guinea (2014) N5710

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 August 2014
• Court: National Court
• Citation: (2014) N5710
• Docket Number: OS (JR) NO 174 OF 2013
• Year: 2014
• Judgement Number: N5710

Full Title : OS (JR) NO 174 OF 2013; Mathew Vingome v John Diala and Sam Kaipu and John Luluaki and University of Papua New Guinea (2014) N5710

National Court: Makail, J

Judgment Delivered: 22 August 2014

N5710

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 174 OF 2013

BETWEEN

MATHEW VINGOME

Plaintiff

AND

JOHN DIALA

First Defendant

AND

SAM KAIPU

Second Defendant

AND

JOHN LULUAKI

Third Defendant

AND

UNIVERSITY OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Makail, J

2014: 18th July & 22nd August

JUDICIAL REVIEW – Review of decision to refuse application for admission to graduate – Admission for conferring of Bachelor of Laws– Grounds of review –Unreasonableness – Strict guidelines – Application dismissed.

PRACTICE & PROCEDURE – Application for judicial review – Competency of – Failure to file notice of motion to set matter down for trial following grant of leave – Proceeding incompetent – National Court Rules – Order 16, rule 5 (1).

Cases cited:

Timbani Longai v. Steven Maken & The State (2008) N4021

Tzen Pacific Limited v. Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013)

Philip Isu & Ors v. John Ofoi & The State (2014) N5518

Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122

John Mua Nilkare v. Ombudsman Commission (1996) SC498

Counsel

Plaintiff in person

Mr D Kamen, for Defendants

JUDGMENT

22nd August, 2014

1. MAKAIL, J: The plaintiff seeks a review of the decision by the defendants to refuse his application to graduate with a Bachelor of Laws (LLB) from the University of Papua New Guinea in April of 2011. He alleges that he is a law student and has completed all requirements for the attainment of a LLB degree but was not allowed to graduate. He alleges that the defendants acted unreasonably when they misled him to enrol for the LLB program after he had completed a two year course of Diploma in Law (Prosecutions) (DLP) program in 2009. He alleges that the manner in which the defendants had treated him was grossly unfair and unreasonable and as a result the decision was grossly unfair and unreasonable such that it ought to be quashed and the defendants be ordered to accept his application and allow him to graduate with a LLB degree.

Competency of Proceeding

2. The defendants submit that the Court should not proceed to determine the merits of the application because it is incompetent and should be dismissed on the following grounds:

· Firstly, the State has not been named as a party in the proceeding. In any application for judicial review, the State would normally be named as a party. The plaintiff in some of the court documents has named the State has a fifth defendant (for instance see the submission for leave to apply for judicial review and the order granting leave) however, the plaintiff never applied to join the State as a fifth defendant.

· Secondly, in the originating summons and other court documents the plaintiff filed on 6th April 2013, the first, second and third defendants have been improperly named. The plaintiff has not named the first, second and third defendants in their official capacity. They have been named in their personal capacity and this is improper.

· Thirdly, the plaintiff has not filed the required notice of motion for the substantive matter after leave was granted under Order 16, rule 5 of the National Court Rules. Order 16, rule 5 (1) provides that when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court. Order 16, rule 5 (1) is in mandatory terms. The plaintiff has not complied with this requirement.

· Fourthly, with regard to the review book, the pages have not been numbered. Order 16, rule 7 (6)(b) provides that all pages of the review book must be numbered. This is also in mandatory terms but the plaintiff has not complied with this requirement.

· Fifthly, under Tab 7 of the review book, there is a copy of the court file index and a letter to Mr Raymond Dikana. It is now known why these documents were put in there when they are not court documents. Also under Tab 9, there are two letters which the defendants’ lawyers wrote to the plaintiff that have been inserted there. Even the statement of agreed and disputed facts and legal issues inserted together with the two letters has not been filed in Court. The draft that was signed by the parties was copied and inserted in the review book without filing. Therefore, the review book is defective.

3. Based on the above stated grounds, the defendants submitted that this Court has discretion to summarily determine the proceeding under Order 16, rule 13 (2) for being incompetent and this proceeding be summarily dismissed for failing to comply with mandatory requirements of the National Court Rules and for failing to file the statement of agreed and disputed facts and legal issues.

4. As to the first ground, given that there is no expressed provision in Order 16 that states that the State must be a party in a proceeding for application for judicial review and that the defence has accepted that it is not mandatory that the State be a party, I am not satisfied that the proceeding should be dismissed on this ground. In any case, the State through the Secretary for Justice and Attorney-General would have been served with the notice of the application to apply for judicial review and I refer parties to the affidavit of the plaintiff sworn on 03rd June 2013 and filed on 04th June 2013 in the review book at Tab “JK”. This should have enabled the State to apply to join the proceeding but it did not. This ground is, therefore, dismissed.

5. In response to the second ground, there is no merit in this ground because the first and second defendants have filed affidavits (Exhibits “D1” and “D2”) in opposition to the application and from my reading of these affidavits, they have given evidence in their capacity as Executive Officer and Deputy Executive Dean of the School of Law respectively. For this reason, I am not satisfied that the defendants have not in any way been prejudiced or unfairly being disadvantaged by the plaintiff’s failure to plead their official titles or failure to sue them in their official capacity and that the fourth defendant is vicariously liable for their actions and/ or omissions. This ground is also dismissed.

6. The third ground raises a significant procedural and jurisdictional issue. Order 16, rule 5 (1) state 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.” In Timbani Longai v. Steven Maken & The State (2008) N4021, which was followed in Tzen Pacific Limited v. Kanawi Pouru & The State: OS (JR) No 715 of 2010 (Unnumbered & Unreported Judgment of 25th April 2013), the Court held that filing a notice of motion under Order 16, rule 5 is a prerequisite to an application for judicial review and cannot be dispensed with in the event of default. Where a notice of motion is not filed after grant of leave, the effect is that there is no proceeding on foot for which the plaintiff may invoke the judicial review power of the Court to review the exercise of power by an administrative authority.

7. I had the occasion to consider the application of Order 16, rule 5 (1) in Philip Isu & Ors v. John Ofoi & The State (2014) N5518 and accepted this to be the position in law but distinguished that case from the other two mentioned cases on the ground that the plaintiffs in that case had filed a notice of motion at the commencement of the proceeding. In the notice of motion, the plaintiffs not only claimed an order for leave to apply for judicial review of the decision of the defendants to grant a Special Agricultural Business Lease to a company but also claimed substantive relief in the nature of declarations to declare that decision illegal and certiorari to quash it. Given that the plaintiffs had sought substantive orders in the same notice of motion, I held that it was sufficient for the purpose of Order 16, rule 5 (1) and allowed the application for judicial review to proceed to trial.

8. In this case, I have perused the notice of motion filed at the commencement of the proceeding and I find that it does not plead and seek in addition to leave, substantive orders. I have also perused the originating summons and except for leave, the substantive orders have not been pleaded. The same can be said of the statement made in support pursuant to Order 16, rule 3(2)(a). In my view the omission is fatal to the entire proceeding. Firstly, the procedural requirement has not been complied with and secondly, on the authority of Timbani Longai which was followed in Tzen Pacific Limited, by its omission, the plaintiff has failed to invoke the judicial review jurisdiction of the Court to review the decision of the defendants. Simply put, there is no proceeding on foot. Even if the Court were to consider the originating summons and the statement made in support pursuant to Order 16, rule 3 (2)(a), the plaintiff has...