Innovest Ltd v Hon Patrick Pruaitch

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, J
• Judgment Date: 17 March 2014
• Citation: (2014) N5949
• Court: National Court
• Year: 2014
• Judgement Number: N5949

Full : OS (JR) 64 OF 2014; Innovest Limited v Hon. Patrick Pruaitch, Minister for Forests and Climate Change and The Independent State of Papua New Guinea (2014) N5949

National Court: Gavara-Nanu, J

Judgment Delivered: 17 March 2014

N5949

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 64 OF 2014

BETWEEN:

INNOVEST LIMITED

Plaintiff

AND:

HON. PATRICK PRUAITCH, MINISTER FOR FORESTS AND CLIMATE CHANGE

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Gavara-Nanu, J

2014: 11 & 17 March

JUDICIAL REVIEW – Practice & Procedure – Application for leave for judicial review – National Court Rules, Order 16 rr 3, 4 and 5 – Originating Summons - Statement in Support - Notice of Motion – Pleadings – Need to plead leave and the decision to be reviewed in the Originating Summons and the Notice of Motion– Substantive Notice of Motion – National Court Rules, Order 16 r 5 – Power of the Court on leave applications.

JUDICIAL REVIEW – Practice and Procedure – National Court Rules; Order 16 rr (1) and (2) – Types of cases for which an application for judicial review may be made – Notice of application for leave for judicial review to the Secretary for Justice – Mode of services for such notice – Commencement of an application for judicial review.

JUDICIAL REVIEW – Practice & Procedure - Power of the Court to grant interim relief before the grant of leave – Circumstances in which such interim relief may be granted – Primary right of the plaintiff – Onus on the plaintiff to show that the grant of an interim relief before grant of leave is warranted – Circumstances in which requirements of Order 16 r 3 (8) of the National Court Rules may be dispensed with – Power of the Court to invoke Order 1 rr 7 and 8 of the National Court Rules and s. 155 (4) of the Constitution.

Cases cited

Papua New Guinea Cases

Application by Jeffery Balakau [1998] PNGLR 437

Application by John Mua Nilkare [1998] PNGLR 472, SC536

Application by Joseph Kintau (2011) SC1125

Avia Aihi v. The State (No.1) [1981] PNGLR 81

Bank South Pacific Limited v. Robert Tngke (2012) N4901

David Tapale v. Secretary, Department of Southern Highlands Provincial Government [1995] PNGLR 229

Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488

Dr. Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Fred Aikung v. Peter Waieng [1998] PNGLR 15

Gabriel Yer v. Peter Yama (2000) SC996

Ila Geno & Ors v. The State [1993] PNGLR 22

James Jowa v. Jacobs Konts (2012) N4795

John Momis & Ors v. Attorney General, NEC & The State [2000] PNGLR 109

Jonny Pokaya Philp v. James Marape (2013) N5276

Les Curlewis v. Reuben Renagi & Ors SC1274

Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development

Pty Ltd (No.1) [1977] PNGLR 8

Miria Simoi v. Sectary of Department of Lands N1714

Monomb Yamba v. Maits Geru (also known as Mas Geru) [1975] PNGLR 322

New Guinea Cocoa (Export) Co. Pty Ltd v. Basis VedBaek [1980] PNGLR 205

Paul Asakusa v. Andrew Kumbakor (2008) N3303

Pepi Kimas v. Boera Development Corporation Ltd (2012) SC1172

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

Phillip Takori v. Simon Yagari (2008) SC905

PNGBC v. Jeff Tole (2002) SC694

Reference by East Sepik Provincial Executive (2011) SC1154

Simon Manjin v. Post & Telecommunication Corporation [1990] PNGLR 288

The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417

Tiga Nalu v. Commissioner of Police (1995) N1972

Tzen Pacific Limited v. Innovest Limited WS 1121 of 2010

Willie Edo v. Hon. Sinai Brown (2006) N3071

Willie Kili Goya v. The State [1991] PNGLR 170

Other cases cited

M v. Home Office [1993] All ER 537

Island Revenue Commission v. National Federation of Self-Employed and

Small Businesses Ltd [1982] C.A 617

R v. Chief Constable of Merselyside Police, exp. Calveley [1986] Q.B 424; [1986] 1 All E.R 257

R v. Kensington & Chelsea Royal London Borough Council, ex parte Hammel [1989] All ER 1202

Counsel

I. Shepherd, for the Plaintiff

E. Geita, for the Defendants

17th March, 2014

1. GAVARA-NANU J: This is an application for leave for judicial review by the plaintiff made pursuant to the originating summons filed on 14 February, 2014. The application is made under Order 16 r 3 (2) and (3) of the National Court Rules (NCR).

2. The defendants have raised a preliminary objection to the application that it is incompetent because the decision to be reviewed has not been pleaded in the originating summons.

3. The plaintiff in response, submitted that the application is competent because the pleadings in the originating summons meet the requirements stated in Peter Makeng v. Timbers (PNG) Ltd (2008) N3317. The pertinent part of the judgment in that case appears at paragraph 37, which states:

"In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized." (my underlining)

4. This passage partly reiterates the requirements of Order 16 r 3 (2) of the NCR. The critical requirement stressed in this passage with which I respectfully agree, is that the decision to be reviewed should be particularized in the originating summons. This means besides pleading leave, the decision to be reviewed should also be specifically pleaded in the originating summons. A failure to do so may result in the pleadings in the originating summons being insufficient and or ambiguous, which may render the application incompetent and subject to summary dismissal pursuant to Order 16 r 13 (13) (2) (a) and (b) of the Judicial Review Amendment Rules, 2005.

5. It should also be noted that the only matters that should be pleaded in the originating summons are; leave (to apply for judicial review), which is the relief sought and the decision to be reviewed for which leave is sought. The Rules do not allow for the substantive relief such as an order in the nature of certiorari, mandamus or declaration to be pleaded in an originating summons (Order 16 r 3 (2). Any substantive relief should be sought and pleaded in the Statement in Support together with the grounds for review (Order 16 rr 1 and 3 (2) (a)).

6. Leave may also be sought by a notice of motion besides being sought in an originating summons. I hold this view notwithstanding the dictates of Order 16 r 3 (2) which expressly provide for leave to be made by an originating summons. An application for leave for judicial review is an interlocutory application and therefore, such application may be made by a notice of motion pursuant to Order 16 r 13 (1) of the Judicial Review Amendment Rules and Rule 9 of the National Court Motions (Amendment) Rules, 2005. The application should also plead the decision to be reviewed and the jurisdictional basis of the Court to hear the application in the same manner as in an originating summons. No substantive relief should be pleaded in a notice of motion seeking leave for the basic reason that it is an interlocutory application. It is settled law that seeking substantive relief in a notice of motion seeking leave or other interlocutory relief is an abuse of process: John Momis & Ors v. Attorney General, NEC and The State [2000] PNGLR 109 and Gabriel Yer v. Peter Yama (2009) SC996. (See also Rule 9 of National Court Motions (Amendment) Rules, 2005).

7. The question of whether an application for leave for judicial review should be made by an originating summons or by a notice of motion should depend, in my view on whether other interim relief is sought besides leave. If other interim relief is sought, then the application should be made by way of a notice of motion. The basis of this approach is that if leave is granted, it would then be convenient for the applicant to seek the other relief in the motion. This approach may be adopted particularly in cases where interim relief such as stay or a restraining order is also sought.

8. I do not think it is permissible under Order 16 r 3 (2) for leave to be sought together with other interim relief in an originating summons for the basic reason that the rule, which is couched in mandatory terms, only provides for leave to be made by an originating summons. Thus, I respectfully agree with the view held in Peter Makeng that Order 16 r 3 (2) upon its proper construction, only allows for leave for judicial review of the decision to be reviewed to be sought and pleaded in an originating summons, (besides pleading the jurisdictional basis of the Court to hear such application).

9. An originating summons or a notice of motion, as the case may be, should not just simply “seek leave for judicial review”. Such pleading would fall far short of the requirements stated in Peter Makeng, because the decision to be reviewed and the jurisdictional basis of the Court to hear the application are not pleaded. Without these two matters being pleaded, the application may be deemed incompetent and subject to summary dismissal pursuant to Order 16 r 13 (13) (2) (a) and (b) (a) and (b) and r 8 of the National Court...