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
• Court: National Court
• Date: 27 March 2008
• Citation: (2008) N3289
• Docket Number: OS NO. 303 OF 2006
• Year: 2008

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

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 & Luke Lucas v PEA [1993] PNGLR 264; Attorney–General Michael Gene v Pirouz Hamidian–Rad [1999] PNGLR 444; Telikom PNG Limited v ICCC (2007) N3144; Zachary Gelu v Francis Damem (2004) N2762; Daniel Yakapo v The Redundancy Monitoring Committee [2002] PNGLR 45; Melina Ltd v Fred Martens (2001) N2183; Viviso Seravo v Jack Bahafo (2001) N2078; Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133; John Niale v Sepik Coffee Producers Ltd (2004) N2637; Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845; Kevin Masive v Iambakey Okuk [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

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:

"O4 r3(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 O16 was considered in the 5 judge bench Supreme Court case of NEC & Luke Lucas v PEA [1993] PNGLR 264 where the court said at page 268:

" O16 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 r1(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 O16 of our National Court Rules. As a consequence the trial judge ruled that where only declarations or injunctions are involved pursuant to O16 r1(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 Attorney–General Michael Gene v Pirouz 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 Telikom PNG Limited v ICCC (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...