Simon Manjin v Post and Telecommunication Corporation and Others [1990] PNGLR 288

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 27 June 1990
• Court: National Court
• Citation: [1990] PNGLR 288
• Year: 1990
• Judgement Number: N887

Full Title: Simon Manjin v Post and Telecommunication Corporation and Others [1990] PNGLR 288

National Court: Hinchliffe J

Judgment Delivered: 27 June 1990

N887

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SIMON MANJIN

V

POST AND TELECOMMUNICATION CORPORATION AND OTHERS

Waigani

Hinchliffe J

11 May 1990

14 May 1990

27 June 1990

PRACTICE AND PROCEDURE — Leave to apply for judicial review — "Ex parte" application — Service of respondent inappropriate — Leave to intervene refused — National Court Rules, O 16, r 3.

The National Court Rules, O 16, r 3 (2), provides that: "An application for leave [to apply for judicial review] must be made by originating summons ex parte to the Court ... and must be supported ..." by affidavits.

Held:

(1) The application for leave to apply for judicial review under O 16, r 3, is an "ex parte" application on which there is no requirement or justification for the presence of the accused.

(2) Accordingly, where a respondent party was erroneously served with notice of an ex parte application under O 16, r 3, and sought to intervene, leave to intervene should be refused.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, not followed.

NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70 at 74, considered.

Cases Cited

The following cases are cited in the judgment:

NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70.

Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244.

Notice of motion

This was an application by a party served with notice of the application to intervene on an application for leave to apply for judicial review.

Counsel:

A Marat, for the plaintiff.

B Frizzell, for the defendants.

Cur adv vult

27 June 1990

HINCHLIFFE J.: On 14 May 1990, I gave brief reasons for refusing the defendant's application to intervene in the plaintiff's application for leave to apply for judicial review pursuant to O 16, r 3 of the National Court Rules 1983. I now give my reasons in full.

Order 16, r 3 (2) of the said Rules provides:

"An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported ..."

Even though it is clear that it is an ex parte application, the lawyer for the defendants has argued that the decision of McDermott AJ in Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, supported his submission that he could intervene. At 245 of the said case his Honour said the following:

"I do not consider the clause 'must be made by originating summons ex parte to the court' to preclude intervention by other parties at this early stage. The necessity for leave was well explained in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739, where Lord Diplock said:

'Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.'

And as Lord Scarman said (at 749):

'The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal...