OS (JR) NO. 680 OF 2008; In an Application for Judicial Review commenced by Originating Summons; Miai Larelake v Hon. Havila Kavo, MP in his capacity as Governor of Gulf Province and Chairman of the Gulf Provincial Executive Council and Gulf Provincial Executive Council and Gulf Provincial Government and Hon. Peter O’Neill, MP in his capacity as the Minister For Public Service and Hon. Job Pomat, MP in his capacity as the Minister For Inter-Government Relations and Simon Peter and Rigo Lua, Dr. Linda Tamsen and Dr. Philip Kereme PH.D in their capacity as Commissioners of the Public Services Commission and Public Services Commission and Grand Chief Rt. Hon. Sir Michael T. Somare, MP in his capacity as Chairman for and on behalf of the members of the National Executive Council and National Executive Council and Independent State of Papua New Guinea (2009) N3809

• Jurisdiction: Papua New Guinea
• Judge: Paliau, AJ
• Judgment Date: 13 November 2009
• Court: National Court
• Citation: (2009) N3809
• Year: 2009
• Judgement Number: N3809

Full Title: OS (JR) NO. 680 OF 2008; In an Application for Judicial Review commenced by Originating Summons; Miai Larelake v Hon. Havila Kavo, MP in his capacity as Governor of Gulf Province and Chairman of the Gulf Provincial Executive Council and Gulf Provincial Executive Council and Gulf Provincial Government and Hon. Peter O’Neill, MP in his capacity as the Minister For Public Service and Hon. Job Pomat, MP in his capacity as the Minister For Inter-Government Relations and Simon Peter and Rigo Lua, Dr. Linda Tamsen and Dr. Philip Kereme PH.D in their capacity as Commissioners of the Public Services Commission and Public Services Commission and Grand Chief Rt. Hon. Sir Michael T. Somare, MP in his capacity as Chairman for and on behalf of the members of the National Executive Council and National Executive Council and Independent State of Papua New Guinea (2009) N3809

National Court: Paliau, AJ

Judgment Delivered: 13 November 2009

N3809

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 680 OF 2008

IN AN APPLICATION FOR JUDICIAL REVIEW

COMMENCED BY ORIGINATING SUMMONS

BETWEEN:

MIAI LARELAKE

Plaintiff

AND:

HON. HAVILA KAVO, MP in his capacity as Governor of Gulf Province

and Chairman of the Gulf Provincial Executive Council

First Defendant

AND:

GULF PROVINCIAL EXECUTIVE COUNCIL

Second Defendant

AND:

GULF PROVINCIAL GOVERNMENT

Third Defendant

AND:

HON. PETER O’NEILL, MP in his capacity as the

MINISTER FOR PUBLIC SERVICE

Fourth Defendant

AND:

HON. JOB POMAT, MP in his capacity as the

MINISTER FOR INTER-GOVERNMENT RELATIONS

Fifth Defendant

AND:

SIMON PETER

Sixth Defendant

AND:

RIGO LUA, DR. LINDA TAMSEN and DR. PHILIP KEREME PH.D in their capacity as COMMISSIONERS of the PUBLIC SERVICES COMMISSION

Seventh Defendant

AND:

PUBLIC SERVICES COMMISSION

Eighth Defendant

AND:

GRAND CHIEF RT. HON. SIR MICHAEL T. SOMARE, MP in his capacity as CHAIRMAN for and on behalf of the members of the NATIONAL EXECUTIVE COUNCIL

Ninth Defendant

AND:

NATIONAL EXECUTIVE COUNCIL

Tenth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Eleventh Defendant

Waigani: Paliau, AJ

2009: 03rd & 13th November

PRACTICE & PROCEDURE – Application to Summarily Determined proceedings for failure to comply with Court’s Directions and Want of Prosecution – National Court Rules – O. 16 r. 13(13)(1) and (2), O.4 r. 36(1) and Constitution s.155(4) – Application refused.

Cases cited:

William Maki Michael Pundia v. PNG Motors [1993] PNGLR 337

Karl Paul and Aruai Kispe and 2 others, N2085

The State v. Alphonse Woinangu, N966

Vailala Purari Investment Limited & 12 v. Papua New Guinea Forest Authority & 2 Ors, OS No. 566 of 2003, N2594

Kai Ulo & 2 Ors v. The State [1981] PNGLR 148

Stanley Miam v. Joe Dai & 4 Ors, (2009) N3699

Counsel:

Mr. S. Soi, for the 1st, 2nd, 3rd & 6th Defendants

Mr. T. Cooper, for the 4th, 5th, 7th, 8th, 9th, 10th & 11th Defendants

Mr. M. Wilson, for the Plaintiff

R U L I N G

13th November, 2009

1. PALIAU, AJ: This is an application by way of Notice of Motion by the First, Second, Third and Sixth Defendants to strike out or dismiss the Judicial Review proceedings commenced by the Plaintiff. The application is to dismiss the proceedings in its entirety. The Motion was filed on 17th July 2009.

2. The application was made pursuant to Order 16 Rule 13(13)(1) and (2)(a) of the Judicial Review (Amended) Rules 2005 and Order 4 Rule 36(1) of the National Court Rules and Section 155(4) of the Constitution.

3. Mr. Soi of counsel for the Defendants moved the Court to have the Judicial Review proceedings to be summarily dealt with and dismissed for want of prosecution. This is so because he submits that the Plaintiff has failed to comply with the Court Directions issued on the 15th June 2009.

4. Mr. Cooper of counsel for the 4th, 5th, 7th, 8th, 9th, 10th and 11th Defendants supports the application by Mr. Soi.

5. The Court’s Directions which were issued on the 15th June 2009 was in the following terms:

(1) Parties exchange final affidavits within seven (7) days by or before 22nd June 2009.

(2) Plaintiff to draft Statement of Legal Issues and Agreed and Disputed Facts by 29th June 2009.

(3) Defendants to respond by 2nd July 2009.

(4) Parties to settle draft index to the Review Book by 6th July 2009.

(5) Parties to file and serve relevant notices under the Evidence Act by 8th July 2009.

(6) Plaintiff to forward Draft Index to the Review Book by 10th July 2009.

(7) Defendant to respond to draft index to the Review Book by 13th July 2009.

(8) Parties to finalise a Review Book by 14th July 2009.

(9) Plaintiff to serve the Review Book on all parties by 16th July 2009.

(10) Parties to return to Court on 20th July 2009 pre-hearing conference:-

(i) Obtain date for hearing.

(ii) File extract of submissions.

(11) Parties ensure the State is separately served and advised of the progress of the matter and the date of hearing of the same.

FACTS

6. On the 5th November 2008, the Plaintiff commenced this proceeding by applying for leave to apply for Judicial Review and leave was granted on the 13th November 2008.

7. It is not clear from the Court’s file as to how the Plaintiff progressed his Judicial Review application after leave was granted, but on the 15th June 2009, the Court issued the above Directions on the parties with a view to speedily progress the matter.

8. On the 17th July 2009, the First, Second, Third and Sixth Defendants filed this Notice of Motion for the Court to summarily determine this proceeding for want of prosecution, for failure to comply with the Court’s Directions of 15th June 2009.

9. The Notice of Motion together with the supporting affidavit were filed and served on the Plaintiff also on the 17th July 2009.

ISSUES

10. The issues for the Court’s determination are:

(1) Whether the National Court’s Directions of 15th June 2009 were not complied with by the Plaintiff.

(2) If the answer to issue (1) is in the affirmative, whether the Court has the jurisdiction to summarily determine this proceeding.

(3) If the answer to issue (1) is in the negative, then it is not necessary to determine whether the Court has the jurisdiction to summarily determine this proceeding.

ISSUE (1) - Whether the National Court’s Directions of 15th June 2009 were not complied with by the Plaintiff.

Defendant’s Submission

11. The Defendants are saying that the Plaintiff failed to comply with the Court’s Directions of 15th June 2009. They are relying on the Affidavit evidence of Ure Hane filed on 17th July 2009.

12. First, they submitted that the counsel representing the Plaintiff (Mr. Mulina) was present in Court on the 15th June 2009 when the Directions were given. These Directions were not filed by the Plaintiff and served on the Defendants, including the State as per Direction 11.

13. The Defendants filed the Court Directions on the 9th July 2009 and uplifted a sealed copy of the Directions on the 10th July 2009 and on the 13th July 2009, they enclosed the Directions in a covering letter and served on the Plaintiff’s lawyers on the 14th July 2009.

14. By 17th July 2009, the Plaintiff was still yet to comply with all the Directions.

15. The Defendants submitted that the Plaintiff has therefore defaulted in not complying with the Court’s Directions of 15th June 2009 and the appropriate remedies as per the National Court Rules must be accorded to them.

Plaintiff’s Submission

16. The Plaintiff by an affidavit of Michael N. Wilson sworn on the 20th July 2009 and filed on the 21st July 2009 deposed that Mr. Wilson being the lawyer having the carriage of this matter was not aware of the Directions of the 15th June 2009 whereby Mr. Roy Mulina was to have drafted and filed the Directions.

17. He also deposed to the effect that Direction No. 1 of the Directions were not complied with by all parties and non-compliance by all parties also of Direction No. 5 to file and serve notices under the Evidence Act on the 8th July 2009.

18. Mr. Wilson also deposes that he had prepared a draft Statement of Agreed and Disputed Facts and Legal Issues and a draft Index to the Appeal Book and forwarded to the Defendants lawyers.

19. He also stated that if the lawyers did not respond and resolve the matters he would seek leave to move for extension of time and complete the requirements for pre-hearing conference.

20. He noted further that there was a motion for the dismissal of the entire proceedings by the Defendants which was served on 17th July 2009.

21. In his affidavit of 11th August 2009, Mr. Wilson stated that he prepared a motion for the pre-trial hearing to be adjourned so that preliminary matters be dealt with.

22. Whilst this was being done. Mr. Wilson stated that the Defendants sought to have the matter dismissed for non-compliance.

23. Mr. Wilson’s attempt to serve the Notice of Motion to extend the time for pre-trial hearing was refused by Mr. Soi. Mr. Soi refused or disregarded acceptance of service because he had a motion on foot.

24. Whilst this was going on, a settlement was sought with the State by Mr. Wilson on behalf of the Plaintiff. This was for the State to invoke its powers under Clause 16 of the Contract to redeploy the Plaintiff elsewhere: On the 12th October 2009, Justice Gavara–Nanu made orders to the effect that if...