Rabaul Shipping Ltd v Chris Rupen, General Manager National Maritime Safety Authority and National Maritime Safety Authority and The Independent State of Papua New Guinea (2008) N3289

• Jurisdiction: Papua New Guinea
• Judge: Lay J.
• Judgment Date: 27 March 2008
• Court: National Court
• Citation: (2008) N3289
• Docket Number: OS NO. 303 OF 2006
• Year: 2008
• Judgement Number: N3289

Full Title: OS NO. 303 OF 2006; Rabaul Shipping Ltd v Chris Rupen, General Manager National Maritime Safety Authority and National Maritime Safety Authority and The Independent State of Papua New Guinea (2008) N3289

National Court: Lay J.

Judgment Delivered: 27 March 2008

N3289

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 303 OF 2006

BETWEEN

RABAUL SHIPPING LTD

Plaintiff

AND

CHRIS RUPEN,

General Manager National Maritime Safety Authority

First Defendant

NATIONAL MARITIME SAFETY AUTHORITY

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Kokopo: Lay J.

2008: 7 & 27 March

CIVIL - action for declarations and injunction against public body commenced by ordinary summons - short issue of statutory interpretation - whether O16 judicial review procedure mandatory - whether proceedings abuse of process - whether proceeding should be struck out for want of prosecution.

Cases Cited:

PNG Cases

NEC, Lucas v PEA [1993] PNGLR 244

The Attorney General and ors v Hamidian-Rad [1999] PNGLR 444

Telecom PNG Ltd v ICCC & Digicell (2007) N3144

Zachary Gelu v Francis Damem (2004) N2762

Yakapo v Redundancy Monitoring Committee (2002) N2224

Melina Ltd v Fred Martens (2001) N2183

Vivivio Seravo v Jack Bahofa (2001) N2078

Ronald Nicholas v Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133

John Niale v Sepik Coffee Producers Ltd & ors (2004) N2637

Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845

Kevin Masive v Iambakey Okuk & Anor [1985] PNGLR 105

Overseas Cases

O'Reilly v Mackman [1983] 2 AC 237

.

References

S.A. de Smit, Judicial Review of Administrative Action.

Protection of the Sea (Shipping) Act

Counsel

J. Haiara, for the Applicant/Defendants

R. Asa, for the Respondent/Plaintiff

27 March, 2008

RULING ON MOTION

1 LAY J.: In 2006 the Plaintiff filed proceedings by originating summons for an interpretation of the meaning of "ship"... actually carrying oil in bulk as cargo" as used in Section 1 of the Protection of the Sea (Shipping Levy) Act No.8 of 2003 and for declarations that:

1. a levy had been improperly imposed on the plaintiff's motor passenger vessel Kula Queen because it does not carry oil in bulk as cargo;

2. the Kula Queen is not a "ship" within the meaning of the Act because it does not carry oil as cargo.

2 The defendants applied to strike out the proceedings on two basis:

a abuse of process, per order 12 rule 40, and

b want of prosecution per Order 4 rule 36.

Abuse of Process

3 The Defendant puts its argument for abuse of process on the ground that the appropriate proceeding is judicial review under Order 16 and it is an abuse of process to commence by an ordinary summons because the orders sought question the decision taken by a public body under an Act of the Parliament. The plaintiff responds that the proceedings are:

"04 r 3(2) Proceedings-(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of an instrument made under an Act, or of any deed, will, contract or other document, or some other question of law..."

4 Order 16 was considered in the 5 judge bench Supreme Court case of NEC, Lucas v PEA [1993] PNGLR 244 where the court said at page 268:

" Order 16 does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected under public law, as opposed to those under private law. The distinctions in 016 relate to the nature of remedies set out in r1 (1) which provides judicial review as the exclusive procedure, and declarations and injunctions under r 1(2) which provides for optional procedures".

5 In that case, in the National Court, the trial judge had found that there are differences between the United Kingdom rules for judicial review and Order 16 of our National Court Rules. As a consequence the trial judge ruled that where only declarations or injunctions are involved pursuant to O 16 r 1(2) the plaintiff can elect to proceed by way of ordinary summons or judicial review. Five judges of the Supreme Court agreed with that view.

6 That case was considered in the Supreme Court in the case of The Attorney General and ors v Hamidian-Rad [1999] PNGLR 444 where the above-mentioned passage was cited at 449 and the Court went on to say:

"We have reached the conclusion that a person who is desirous of applying for an order in the nature of a prerogative writ is required to apply under O16 of the Rules. This is an exclusive procedure provided by the Rules (O16 r 1)".

7 In that case the Court did not say that O16 r1 (2) was of no effect. That Order 16 of the National Court Rules was the proper procedure if that case was conceded by the Respondent.

8 My attention has been drawn to the decision of my brother Kandakasi J. in Telecom PNG Ltd v ICCC & Digicell (2007) N3144 where his Honour at [26] referred to the Hamidian-Rad case and said "in so deciding, the Court did not follow the much earlier decision of NEC, Lucas v PEA". That passage suggests that there is some divergence between the two cases. The divergence appears to be this, in NEC, Lucas v PEA the Court said:

“Order 16 does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected under public law, as opposed to those under private law. The distinctions in O 16 relate to the nature of remedies set out in r 1(1), which provides judicial review as the exclusive procedure, and declaration or injunction under r 1(2) which provide for optional procedures.

An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1(1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.

In the present case, the respondent did not apply for a remedy under O 16 r 1. The only remedy sought was a declaration and, under the Rules, he may choose to proceed by originating summons under O 4 r 3. Our Rules permit such an option. The trial judge distinguished the English rules from our Rules, in that we do not have an equivalent of the English O 5 r 3 (sic)... With respect, we agree and endorse his Honour's interpretation.”

9 Then in the Hamidian Rad case the Court placed the following interpretation on the passage quoted at [8]:

“The Court also considered the question of the abuse of the process of the Court. In this regard the Court adopted the general rule propounded by Lord Diplock in O’Reilly v Mackman (supra).The Court however did not apply the test on the basis that the remedy sought was one of declaration only under O16 r2.(sic – presumably r1(2) was intended). The assumption that is apparent in that conclusion is that the declaration sought could not be sought by way of prerogative writ under O16 r1 of the Rules. If the Court considered that was the case, it would have considered exercising its discretion on the question of the abuse of the process of the Court”.

10 It is very clear from the NEC, Lucas v PEA case that the court adopted the views of the trial judge that there was a material difference in the drafting of O16 of the National Court Rules and O 53 of the English rules, so that there was not the compulsion under the National Court Rules to use the judicial review procedure if only a declaration or an injunction was sought in relation to a public officer’s decision. I am unable to follow how the Court in the Hamidian Rad Case came to arrive at the assumption it said was apparent in the passage quoted at [8]. It seems to me with respect, that the Court in NEC, Lucas v PEA could not have been clearer in saying there was an election. The observation in Hamidian Rad is strictly obiter because it was not necessary for the decision. The decision of the Court only involved affirming what Counsel for the Respondent had already conceded; that an order in the nature of certiorari must be sought by judicial review. As the Court said at p448 “The question which has arisen in this ground of appeal relates to the proper procedure for obtaining a prerogative writ in the National Court”.

11 I therefore do not consider that Hamidian Rad has settled the issue in favour of there being no election available to seek a declaration by ordinary summons where a question of public law is involved, however desirable that course may be.

12 In the case of Zachary Gelu v Francis Damem (2004) N2762 Davani J. refers to a passage from Halsbury's Laws of England fourth edition volume 1 (1) at page 180:

"The jurisdiction to grant a declaration or an injunction on an application for judicial review is concurrent with the jurisdiction to...