Timbani Longai v Steven Maken as the Acting Managing Director of Small Business Development Corporation and John Jeffrey as Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea (2008) N4021

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 18 September 2008
• Citation: (2008) N4021
• Docket Number: OS NO 363 OF 2007 (JR)
• Year: 2008

Full Title: OS NO 363 OF 2007 (JR); Timbani Longai v Steven Maken as the Acting Managing Director of Small Business Development Corporation and John Jeffrey as Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea (2008) N4021

National Court: Injia, CJ

Judgment Delivered: 18 September 2008

JUDICIAL REVIEW—plaintiff granted leave for review but failed to file Notice of Motion instituting substantive application—defendants filed application to dismiss proceedings—plaintiff filed counter—notice of motion seeking orders that the time to dispense with compliance of O16 r5 (1) and (4) of the NCR be dispensed with - O16 r3 and r5 National Court Rules

JUDICIAL REVIEW—Practice and Procedure - relevant rules of court on judicial review proceedings are found in O16 as amended by the Judicial Review (Amendment) Rules 2005 - Notice of Motion an essential prerequisite for instituting application for judicial review - one of those requirement of the rules under O16 that can be dispensed with - plaintiff’s Motion has no merit and is dismissed—respondents notice of motion granted - O16 r5 (1) and (4) National Court Rules, r13(1) and r13(2) a & b (a) Judicial Review (Amendment) Rules

Cases Cited:

Christopher Appa v Peter Wama [1992] PNGLR 395; Attorney–General Michael Gene v Pirouz Hamidian–Rad [1999] PNGLR 278; Bruno Baiwan v The University of Papua New Guinea [1995] PNGLR 18; Bernard Juali v The State (2001) SC667; Francis Damem v Jerry Tetaga (2005) N2900; David S Nelson v Patrick Pruaitch (2003) N2440; David Nelson v Patrick Pruaitch (2004) N2536; Elizabeth Dambui V SBDC (no case citation supplied); Ereman Ragi v Joseph Maingu (1994) SC459; Francis Damem v Jerry Tetaga (2005) N2900; Tom B Gesa v Bernard Kipit [2003] PNGLR 68; Mathew Petrus Himsa v Richard Sikani (2002) N2307; Isaac Lupari v Sir Michael Somare (2008) N3476; John Kopil v Malcolm Culligan (1995) N1333; Kely Kerua v Council Appeal Committee of The University of Papua New Guinea (2004) N2534; John Kombati v Evangelical Lutheran Church of PNG (2004) N2691; Albert Kuluah v UPNG [1993] PNGLR 494; Lawrence Sausau v Joseph Kumgal (2006) N3253; Leo Duque v Avia Andrew Paru [1997] PNGLR 378; Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353; Jimmy Malai v PNG Teachers Association [1991] PNGLR 116; National Airline Commission (Trading as Air Niugini) v Aphmeledy K Joel (Secretary for Labour and Employment) [1992] PNGLR 132; Nere Talin v PNG Waterboard [1992] PNGLR 211; Sir Julius Chan v The Ombudsman Commission (1998) SC556; Sir Julius Chan v The Ombudsman Commission (1998) SC557; Young Wedau v PNG Habours Board [1995] PNGLR 357; Zachary Gelu v Francis Damem (2004) N2762

18th September, 2008

1. INJIA, CJ: The Small Business Development Corporation (SBDC) is a statutory authority established under the Small Business Development Corporation Act (“SBDC Act”). The Plaintiff is a former employee of SBDC. On 27th April 2007, he was dismissed from his employment on disciplinary grounds. On 4 July 2007, he filed an application seeking leave to apply for judicial review under O16 r 3 of the National Court Rules (NCR). On 16th August 2007, this Court granted leave. A Notice of Motion instituting the substantive application required to be filed by O16 r5 has never been filed to this day. This is one of two main grounds relied upon by the first and second defendants in their application to dismiss the review proceedings. The defendants’ application was contested by the plaintiff. The application was argued before me at a series of hearing late last year and I reserved my ruling which I now deliver.

Motions

2. By Amended Notice of Motion filed on 13th November 2007, the First and Second Respondents (SBDC) sought orders in the following terms:

(1) That the Proceedings herein be dismissed for failure to apply for Judicial Review within twenty-one (21) days from the date of grant of leave to Apply for Judicial Review on 16th August 2007 pursuant to O16 r5 (1) and (4) of the National Court Rules (“NCR”) and r13 (1) & (2) a & b (a) of the Judicial Review (Amendment) Rules 2005.

(2) That the Plaintiff’s Notice of Motion dated 4th July 2007 seeking orders in terms of paragraph 3 be dismissed for non-compliance of O4 r4 (1) NCR and Rule 8 of the Motions (Amendment) Rules 2005 and Rule 17 of the Motions (Amendment) Rules 2005;

(3) That in the alternative, the Proceedings be dismissed pursuant to O12 r40 of the NCR and r13 (2) a & b (a) of the Judicial Review (Amendment) Rules 2005 for disclosing no reasonable cause of action, for being frivolous or vexatious and for being an abuse of process of the Court.

(4) That the plaintiff shall pay the costs of the application and the proceedings.

3. The application is supported by various affidavits and these are the affidavit of Simon Ketan sworn on 27th September 2007 and filed on 3rd October 2007; Peter Kamara sworn on 27th September 2007 and filed on 3rd October 2007; Simon Ketan sworn on 6th November 2007 and filed on 7th November 2007; Simon Ketan sworn on 12th December 2007 and filed on 13th December 2007 and Brian Kiap Komun sworn on 27th December 2008 and filed on 1st December 2008.

4. In response to the defendants’ application, the plaintiff filed his own counter—notice of motion and supporting affidavits. This motion was also argued at the same time...