ENB Provincial Government v The Public Service Commission Chairman

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 08 May 2017
• Citation: (2017) N6706
• Court: National Court
• Year: 2017
• Judgement Number: N6706

Full : OS (JR) No 587 of 2015; East New Britain Provincial Government v The Public Service Commission Chairman – Dr. Philip Kereme and Jack Kavie (2017) N6706

National Court: Anis AJ

Judgment Delivered: 8 May 2017

N6706

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 587 OF 2015

BETWEEN:

EAST NEW BRITAIN PROVINCIAL GOVERNMENT

Applicant

AND:

THE PUBLIC SERVICE COMMISSION CHAIRMAN – DR. PHILIP KEREME

First Respondent

AND:

JACK KAVIE

Second Respondent

Kokopo: Anis AJ

2017: 21st April

2017: 8th May

JUDICIAL REVIEW – Court issued direction - parties to explain why matter should not be summarily dismissed - Order 16 Rule 13(13)(2)(b)(b) of the National Court Rules - allege abuse of process and breach of mandatory provisions under Order 16 of the National Court Rules

PRACTICE & PROCEDURE – Leave granted - no substantive motion filed for judicial review under Order 16 Rule 5 of the National Court Rules - no statement filed under Order 16 Rule 3(2)(a) of the National Court Rules before and after leave was granted - implications and consequences discussed

PRACTICE & PROCEDURE – Court's discretionary power to dispense with or amend court documents - Order 1 Rule 7 & 8 and Order 16 Rule 13(14) of the National Court Rules - no formal application before the Court - request made through submission

Case cited:

Alex Timothy v. Hon Francis Marus (2014) SC1403

Henry Bailasi v. Rigo Lua (2013) N5145

Joshua Kalinoe v. Paul Paraka (2014) SC1366

Lawrence Sausau v. Joseph Kumgal (2006) N3253

Les Curlewis and Ors v. David Yuapa (2008) SC1274

Michael Anis v. David Ericho and Or (2006) N3040

Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303

Paul Saboko v. Commissioner of Police (2006) N2975

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

Peter Tupa v. Commissioner of Police (2007) N5481

Pombros Maliu v. Samuel K Geno (2013) N5144

Sam Koim v. Peter O'Neil (2014) N5694

Counsel:

Mr W Mahaut, for the Applicant

Mr R M Simbil, for the First Respondent

Mr R Asa, for the Second Respondent

RULING

8th May, 2017

1. ANIS AJ: This is a judicial review matter. His Honour Justice Higgins granted leave to apply for judicial review on 6 November 2015.

2. On 10 March 2017, the matter returned to Court for directions hearing. I inquired with counsel of the status. After discussions with counsel and perusal of the Court file, it became apparent the applicant may not have filed a substantive notice of motion for judicial review. Also apparent was the absence of a Statement that was required under Order 16 Rule 3(2)(a) of the National Court Rules (the Statement). The applicant confirmed then that it did not file the Statement.

3. Following that, the Court issued this direction in particular, Parties to appear with written submissions to address the Court on why this proceeding should not be dismissed for abuse of process and want of compliance with the fundamental requirements under Order 16 namely failure to file a Statement under Order 16 Rule 3(2)(a) and Order 16 Rule 5(1), of the National Court Rules (Court Direction).

4. The matter returned for arguments on 21 April 2017. Parties presented their submissions both written and oral. During the course of the hearing, the applicant and the second respondent requested time to file further submissions. As for the applicant, counsel made the request after the Court pointed out that the material issues were not addressed in the applicant's written submission that was filed on 20 April 2017. As for the second respondent, counsel said he was yet to file his client's written submission. But in a brief oral submission, the second respondent supported and endorsed the submissions of the first respondent.

5. At the end of that hearing, I issued the following directions: (i) The plaintiff is to file and serve its supplementary submission before or by 25 April 2017. (ii) The respondents are to file and serve any responding submissions (if required) before or by 28 April 2017. (iii) The Court shall reserve its ruling thereafter to a date to be advised. (iv) Time is abridged.

6. This is my ruling.

ISSUES

7. The issues are as follows: (i) What power did the Court invoke to issue the Court Direction? (ii) Is there a judicial review pending before the Court given that the applicant did not file a notice of motion for judicial review after leave was granted? (iii) What is the ramification(s) given the fact that the applicant has also not filed the Statement? (iv) Whether the applicant's invitation to the Court to exercise its powers under Order 1 Rules 7 & 8 and Order 16 Rule 13(14) of the National Court Rules, is properly before the Court for consideration.

SOURCE

8. What power did I use to issue the Court Direction and list the matter down for possible summary determination? This was not a contested issue. However, I consider it necessary to include as a preliminary matter in my judgment for clarity since the referral for possible summary determination of the matter was the Court's own.

9. The relevant provision of course is Order 16 Rule 13(13)(2)(b)(b) of the National Court Rules. The said rule reads, The Court may summarily determine a matter....on the Court's own initiative [See case: Alex Timothy v. Hon Francis Marus (2014) SC1403]. The Court Direction I issued on 10 March 2017 was based on this rule. The Court also gave sufficient time to the parties to prepare. I also extended time after the hearing on 21 April 2017, to allow the parties to file further supplementary submissions.

APPLICANT

10. I refer to the applicant's supplementary submission filed on 26 April 2017. The applicant did not contest the material facts. Firstly, it admits to not filing the Statement. Secondly, it admits to not filing a substantive notice of motion for judicial review after the grant of leave on 6 November 2015. Thirdly, it admits to seeking both leave and substantive judicial review relief in its amended notice of motion that was filed on 30 October 2015 (amended notice of motion) before the hearing of the leave application.

11. The applicant however requests the Court to exercise its powers under Order 1 Rule 7 and 8 and Order 16 Rule 14, of the National Court Rules, to dispense with the requirements under the rules, and also to allow it to amend its court documents. There is no Order 16 Rule 14 but it seems clear that the applicant is referring to Order 16 Rule 13(14) of the National Court Rules.

12. The applicant cites two (2) case authorities to support its contentions. The first case is Sam Koim v. Hon Peter O'Neil (2014) N5694. The second case is Les Curlewis and Ors v. David Yuapa (2008) SC 1274. Both cases say on point that the National Court's function is to do justice and that it cannot do that if it applies the rules rigidly or without flexibility.

RESPONDENTS

13. The respondents argue that the matter should be summarily dismissed. They firstly refer to Order 16 Rule 13(13)(2)(b)(b) and say the Court has powers therein to summarily dismiss this judicial review.

14. The respondents say the matter should be summarily dismissed because: (i) they say the originating summons and the amended originating summons both plead leave and substantive relief and do not plead the decision that is being challenged; (ii) they say the substantive notice of motion was not filed after leave was granted; they refer to the amended notice of motion and say that even if the applicant were to rely on it, the amended notice of motion is incompetent because it was filed at the same time as the amended originating summons before leave was granted; and (iii) they say the Statement has not been filed.

15. In support, the respondents rely on these case authorities: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Paul Asakusa v. Andrew Kumbakor and Ors (2008) N3303; Les Curlewis and Ors v. David Yuapa (supra) and Sam Koim v. Hon Peter O'Neil (supra). The cases cover various judicial review principles. I will consider them in my judgement where necessary.

MOTION FOR JUDICIAL REVIEW?

16. The applicant filed its originating summons on 11 September 2015. On the same day, it also filed a notice of motion. The relief in the originating summons and the notice of motion were identical. Both documents sought leave to apply for judicial review and substantive relief. On 30 October 2015, the applicant filed an amended originating summons and the amended notice of motion. Again, both documents sought leave and almost identical substantive relief.

17. Leave to apply for judicial review was granted on 6 November 2015.

18. What does the law say about applying for judicial review? I firstly refer to the National Court Rules. Order 16 Rule 5 reads, Subject to Sub-section 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. Secondly, Order 16 Rule 13(5)(1) reads, Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following....Filing of Notice of Motion and...