SCA No 95 of 2013; Alex Timothy v Hon. Francis Marus, MP and Fred Kini, Chairman of PNG Land Board and Sam Taian, Thomas Bullen, Thomas Webster, George Nasiono, Maia Siaguru, as Members of the PNG Land Board and Pepi Kimas, the Secretary of the Department of Lands and Physical Planning – Department of Lands and Physical Planning and Hon. Puka Temu, MP Minister for Land and Physical Planning and The Independent State of Papua New Guinea (2014) SC1403

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, Davani & Gabi JJ
• Judgment Date: 29 October 2014
• Court: Supreme Court
• Citation: (2014) SC1403
• Year: 2014
• Judgement Number: SC1403

Full Title: SCA No 95 of 2013; Alex Timothy v Hon. Francis Marus, MP and Fred Kini, Chairman of PNG Land Board and Sam Taian, Thomas Bullen, Thomas Webster, George Nasiono, Maia Siaguru, as Members of the PNG Land Board and Pepi Kimas, the Secretary of the Department of Lands and Physical Planning – Department of Lands and Physical Planning and Hon. Puka Temu, MP Minister for Land and Physical Planning and The Independent State of Papua New Guinea (2014) SC1403

Supreme Court: Injia CJ, Davani & Gabi JJ

Judgment Delivered: 29 October 2014

SC1403

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA No 95 of 2013

ALEX TIMOTHY

-Appellant-

V

HON. FRANCIS MARUS, MP

-First Respondent-

FRED KINI, CHAIRMAN OF PNG LAND BOARD

-Second Respondent-

SAM TAIAN, THOMAS BULLEN, THOMAS WEBSTER, GEORGE NASIONO, MAIA SIAGURU, as Members of the PNG Land Board

-Third Respondent-

PEPI KIMAS, The Secretary of the Department of Lands and Physical Planning -Fourth Respondent-

DEPARTMENT OF LANDS AND PHYSICAL PLANNING

-Fifth Respondent-

HON. PUKA TEMU, MP Minister for Land and Physical Planning

-Sixth Respondent-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Seventh Respondent-

Waigani: Injia CJ, Davani & Gabi JJ

2014: 1st July, October 29th

Practice and Procedure – Judicial Review Proceedings under Order 16 of the National Court Rules – Interlocutory applications – Application to dismiss proceedings for want of prosecution- Whether application should be brought under Order 4 r 36 or under O 16 r 13 of the National Court Rules

Practice and Procedure – Judicial Review Proceedings – peculiarity of Judicial Review Proceedings

Facts:

The appellant being aggrieved by the National Courts decision to dismiss Judicial Review proceedings he brought in the National Court under Order 16 of the National Court Rules (NCR), appealed, his grounds of appeal being that the trial Judge had erred when he dismissed the Judicial Review proceedings relying on Order.4 r.36 of the National Court Rules when the Respondent should have moved such an application under Order 16 Rule 13 of the National Court Rules.

Held:

1. Judicial review under NCR Order 16 is a special and exclusive procedure which deals with complains by person aggrieved by the decisions of public administrative bodies and persons exercising public power conferred by statute.

2. The Notice of Motion filed and moved by the respondent seeking an order dismissing the judicial review proceedings for want of prosecution under NCR, 0rder 4 Rule 36, had no application to the Judicial review proceedings brought under NCR, Order 16. The procedure for bringing such application is found in Order 16 Rule 16.

3. Though Order 16 and Order 4 proceedings are both commenced by originating summons, they are distinct in that a prospective applicant in 0rder 16 Judicial Review proceedings, seeks leave to bring such application by way of an Originating Summons and it is only after grant of leave that a substantive application for judicial review is brought in a separate application by way of Notice of Motion, a process peculiar only to judicial review. Conversely, proceedings commenced by Originating Summons under Order 4 is an action seeking substantive relief that is brought as of right. Interlocutory applications must be brought within their respective proceedings except where provisions for bringing such interlocutory applications under either of these provisions are expressly adopted.

Cases cited

Attorney General Michael Gene v. Hamidan Rad [1999] PNGLR 444

Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052

Hon Patrick Pruaitch MP v Chronox Manek (2010) N4149

Honourable Patrick Pruaitch MP v Chronox Manek (2011) SC1093

Mision Asiki v. Manasupe Zurenuoc (2005) SC 797

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

Counsel:

R Lains for the appellant

M Phillip for the first respondent

M. Vate for the second, third, fourth, fifth, sixth and seventh respondents

DECISION

Injia CJ, Davani J

1. This is an appeal from the National Court’s decision of 26th July, 2013, dismissing Judicial Review proceedings described as OS (JR) No. 136 of 2010, such application made pursuant to Order 4 Rule 36 of the National Court Rules (NCR).

2. On 26th July, 2013, the trial Judge, after hearing all counsel in relation to the application to dismiss, made orders that;

1. The whole proceedings be dismissed;

2. The plaintiff vacate the land, the subject of these proceedings, failing which the police were authorised to use reasonable force to ensure that the plaintiff gives up the said land to the first respondent; and

3. The plaintiff to pay the costs of the application, awarded on a party/party basis and for each party to pay their own costs of “the remainder” of the proceedings. (re par. no. 3 of the Court order)

Background

3. The appellant, who was the plaintiff in the National Court Judicial Review proceedings, sought review of the National Land Board’s decision to award a State Lease over land described as Section 7, Allotment 37, Granville, NCD (the ‘Land’) to the first respondent, Hon. Francis Marus MP. He filed the judicial review proceedings referred to above, on 29th March, 2010.

4. On 12th April, 2010, the National Court granted the appellant leave to review the National Land Board’s Decision together with interim restraining orders, restraining the National Land Board from implementing the decisions it made in relation to the Land, amongst others.

5. On 22nd July, 2013, Korerua Lawyers for and on behalf of “the defendants” (as stated in the Notice of Motion) filed a Notice of Motion seeking to dismiss the proceedings for Want of Prosecution, application made pursuant to Order 4 Rule 36 of the National Court Rules and Rule 15 (1) (2) of the National Court Listing Rules 2005. The motion also sought further orders that the plaintiff (appellant in these proceedings), vacate the Land within 7 days from the date of the order. On 26th July, 2013, after hearing all parties on the application to dismiss, the Trial Judge dismissed the entire proceedings.

This Appeal and issues raised

6. On 20th August, 2013, Steeles Lawyers filed Notice of Appeal, for and on behalf of the appellant. Although the respondent filed an Objection to the Competency of the appeal, at the hearing of the appeal, they chose not to pursue it.

7. There are three (3) grounds in the Notice of Appeal which raise two main issues.

8. The first issue is, whether the trial judge erred in entertaining and upholding an application to dismiss the judicial review proceedings which had been brought under NCR, Order 16 such application which was made and moved pursuant to NCR, O 4 r 36 when such application should have been brought under the relevant provisions of NCR, Order 16 itself.

9. The second issue is, whether the trial judge erred in dismissing the judicial review proceedings when the parties were negotiating an out of court settlement of the action.

10. The first issue is a threshold issue which goes to the competency of the application advanced in the court below which means that we will deal with that issue first.

11. It has been long held that judicial review proceedings involve a challenge to administrative decisions made under statute. The procedure by which such proceedings are brought is set out in NCR, O 16. An authoritative statement of the principle with regard to the exclusive nature of the procedure found in Order 16 was enunciated by this Court in Attorney General Michael Gene v.Hamidan Radz [1999] PNGLR 444. That decision has been followed in many cases before this Court and the National Court: Mision Asiki v. Manasupe Zurenuoc (2005) SC 797. This court’s decision in Sir Julius Chan v Ombudsman Commission (1998) SC557 is on point with regard to the National Court’s jurisdiction to entertain interlocutory applications concerning summary dismissal of judicial review proceedings brought outside of Order 16. This case held that any such applications cannot be brought under procedures provided for ordinary proceedings such as NCR, O 12 r 8 (3); and that it must be brought within Order 16.

12. In an earlier decision of this Court, in The National Executive Council, the Attorney-General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264, it was recognized that a person aggrieved by a decision made by a public authority may choose between seeking declaratory relief or an injunction as of right without seeking orders in the nature of prerogative orders with leave of the Court, in which case he can bring an action by way of Originating Summons or Writ of Summons or any other form of originating process. If such person were to seek orders in the nature of prerogative orders that includes declaratory orders and injunctions as consequential remedies, such proceedings must be brought under Order 16. This view was followed by the majority in Telikom PNG Ltd v ICCC (2008) SC906. Also in the Telikom case, the majority correctly interpreted the import of the Court’s decision in the Hamidian Rad case where the majority held that an aggrieved person who chose to seek orders in the nature of...