Joseph Yonge v Luke Niap, Acting General Manager PNG Harbours Board and Papua New Guinea Harbours Board (2001) N2101

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 June 2001
• Court: National Court
• Citation: (2001) N2101
• Year: 2001
• Judgement Number: N2101

Full Title: Joseph Yonge v Luke Niap, Acting General Manager PNG Harbours Board and Papua New Guinea Harbours Board (2001) N2101

National Court: Kandakasi J

Judgment Delivered: 22 June 2001

N2101

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

O. S. 302 of 2001

BETWEEN:

JOSEPH YONGE

Applicant/Plaintiff

AND:

LUKE NIAP, ACTING GENERAL MANAGER

PNG HARBOURS BOARD

First Respondent/Defendant

AND:

PAPUA NEW GUINEA HARBOURS BOARD

Second Respondent/Defendant

WAIGANI: KANDAKASI

2001: 6 & 20 JUNE 2001

PRACTICE & PROCEDURE — Want of Prosecution — Failure by Plaintiff and his lawyer to appear on date set by consent for hearing — Rules and the law requires prompt prosecution of such applications — Failure to comply should result in dismissal of action — Order 16 Rule 4 of the National Court Rules (Chp. 38).

ADMINISTRACTIVE LAW — Application for Leave for judicial review — Arguable case — Failure to show arguable case for review — Employment termination after charging Plaintiff with disciplinary offences and hearing the Plaintiff in his defence — Failure to demonstrate by appropriate evidence error of the Defendants — Order 16 Rule 3 of the National Court Rules (chp.38).

Cases cited:

The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276

An Exparte Application of Eric Gurupa for Leave to Apply for Judicial Review N856.

Peter Ipu Peipul v.Sheehan J , Mr. Ori Karapo and Ivoa Geita (consisting the Leadership Tribunal) & Ors (unreported and unnumbered judgement delivered on 25th May 2001)

Internal Revenue Commission v. National Federation of Self Employed and Small Business Limited [1982] AC 617

Ila Geno and Others v. The State [1993] PNGLR 22

Leto Darius v. Commissioner for Police and The State N2046

Application of Demas Gigimat [1992] PNGLR 122

Application of Christopher Haiveta (1998) N1783

Joe Nemambo vs. Peter Peipul SC475

Counsels:

Mr. F. Komang for the Plaintiff

Mr. T. Elemi for the Defendant

22nd June 2001

KANDAKASI, J: The Plaintiff is applying under Order 16 Rule 3 of the National Court Rules (NCRs) for leave to apply for judicial review of a decision of the Defendants terminating his employment contract. He claims that, the defendants acted in excess of jurisdiction, acted unreasonably and the decision to terminate his employment was a sever penalty. The Defendants deny these claims and argue that the Plaintiff's application does not disclose an arguable case to warrant grant of leave for review. Also, on the date set for a hearing of the application, neither the Plaintiff nor his lawyer turned up to proceed with the hearing. The Defendants argued for a dismissal of the application both for want of prosecution and on the merits for failure to disclose an arguable cases.

Issue

There are two issues for me to determine. First, whether the Plaintiff's application should be dismissed for want of prosecution. Secondly, whether there is an arguable case, for grant of leave for judicial review.

First Issue: Want of Prosecution

(a) Background

The Plaintiff issued these proceedings on the 11th of May 2001, together with a notice of motion seeking inter alia, leave for judicial review. The motion was initially returnable on the 25th of May 2001. On that day, the motion was adjourned by consent of both parties to the 6th of June 2001 for hearing. When the matter was called for hearing on that day, there was no appearance for or on behalf of the Plaintiff. Mr. Elemi, counsel for the Defendant's applied for leave to proceed ex parte and I granted him leave to do so.

Mr. Elemi applied for a dismissal of the motion and the entire proceedings for want of prosecution. He also invited the Court to dismiss the motion and the proceeding, because in his submissions, no arguable case was presented for a grant of leave for judicial review. After having heard his arguments, I reserved my ruling. This is now my ruling on that application.

(b) Want of Prosecution

Judicial review applications by their very nature call for prompt action. Order 16 Rule 4 provides that, all applications for leave for judicial review must be made promptly. Sub-rule (2) of that Rule provides for a period of four months within which to apply for leave for judicial review. Numerous authorities make it very clear that, a failure to observe this requirement may result in a refusal of an application for leave. In The Application of Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276, Sevua J refused an application for leave for judicial review because of delays in bring the application. A similar consequence followed in An Exparte Application of Eric Gurupa for Leave to Apply for Judicial Review N856. These cases provided examples of the consequences that can follow where there is a failure to proceed with an application for leave for review promptly, given the provisions of Order 16 Rule 4(2) of the NCRs.

For want of prosecution generally of proceedings commenced by Originating Summons, the provisions of Order 4 Rule 36 are relevant. That Rule reads:

"Want of prosecution. (5/12)

(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.

(2) Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff."

(Underling mine)

The onus is thus, placed in my view, on a plaintiff to take every step to prosecute his claim with due dispatch. A failure to do so, attracts the risk of dismissal as the ultimate penalty. The court is vested with a discretion to dismiss proceedings that do not get prosecuted promptly. I am of the view that, this discretion should be exercised quite readily in an application for leave to apply for judicial review unless, good and reasonable basis is shown by an applicant to prevent an exercise of that discretion. This view emanates from the fact that, judicial review, by their very nature, require prompt action to avoid unnecessary confusions, disruptions and or uncertainties that could be caused...