Timbani Longai v Steven Maken as the Acting Managing Director of Small Business Development Corporation and John Jeffrey as Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea (2008) N4021

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 18 September 2008
• Court: National Court
• Citation: (2008) N4021
• Docket Number: OS NO 363 OF 2007 (JR)
• Year: 2008
• Judgement Number: N4021

Full Title: OS NO 363 OF 2007 (JR); Timbani Longai v Steven Maken as the Acting Managing Director of Small Business Development Corporation and John Jeffrey as Chairman of Small Business Development Corporation and The Independent State of Papua New Guinea (2008) N4021

National Court: Injia, CJ

Judgment Delivered: 18 September 2008

N4021

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 363 OF 2007 (JR)

BETWEEN:

TIMBANI LONGAI

Plaintiff

AND

STEVEN MAKEN as the ACTING MANAGING DIRECTOR OF SMALL BUSINESS DEVELOPMENT CORPORATION

First Defendant

AND

JOHN JEFFREY as CHAIRMAN OF SMALL BUSINESS DEVELOPMENT CORPORATION

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Injia, CJ

2008: 18th September

JUDICIAL REVIEW – plaintiff granted leave for review but failed to file Notice of Motion instituting substantive application – defendants filed application to dismiss proceedings – plaintiff filed counter – notice of motion seeking orders that the time to dispense with compliance of Order 16 rule 5 (1) and (4) of the NCR be dispensed with - Order 16 rule 3 and 5 National Court Rules

JUDICIAL REVIEW – Practice and Procedure - relevant rules of court on judicial review proceedings are found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005 - Notice of Motion an essential prerequisite for instituting application for judicial review - one of those requirement of the rules under O16 that can be dispensed with - plaintiff’s Motion has no merit and is dismissed – respondents notice of motion granted - Order 16 rule 5 (1) and (4) National Court Rules, Rule 13(1) and (2) a & b (a) Judicial Review (Amendment) Rules

Cases Cited:

Apa v Wama [1992] PNGLR 395

Attorney - General Michael Gene v Hamidian Rad [1999] PNGLR 278

Baiwan v UPNG [1995] PNGLR 18

Bernard Juali v The State (2001) SC 667

Damem v Tetega (2005) N2900

David Nelson v Patrick Pruaitch (2003) N 2440 (Sevua J)

David S Nelson v. Hon Patrick Pruaitch & Ors (2004) N 2536

Elizabeth Dambui V SBDC (no case citation supplied)

Ereman Ragi v Joseph Maingu (1994) SC 459

Francis Damem v PSC (2005) N 2900

Gesa v NCDC (2003) N2457

Himas v Sikani (2002) N2307

Issac Lupari v NEC (2008) N 3476

John Kopil v Culligan (1995) N1333

Kerua v UPNG (2004) N 2534

Kombati v Father Singin (2004) N 2691

Kulua v UPNG [1993] PNGLR 494

Lawrence Sasau v PNG Harbours Board (2006) N 3253

Leo Duque v Andrew Paru [1997] PNGLR 378

Luke Supro v Gerea Aopi & Anor [1997] PNGLR 353

Mali v PNGTA [1991] PNGLR 116

National Airline Commission t/a Air Niugini v Joel [1982] PNGLR 132

Nere Tali v PNG Waterboard [1992] PNGLR 211

Sir Julius Chan v Ombudsman Commission (1998) SC 556

Sir Julius Chan v Ombudsman Commission (1998) SC 557

Young Wadau v PNG Harbours Board (1995) SC 489

Zachary Gelu v Francis Damem (2004) N 2762

Counsel:

N Kiuk, for the Plaintiff

S Ketan, for the First & Second Defendant

No appearance for the Third Defendant

18th September, 2008

1. INJIA, CJ: The Small Business Development Corporation (SBDC) is a statutory authority established under the Small Business Development Corporation Act (“SBDC Act”). The Plaintiff is a former employee of SBDC. On 27th April 2007, he was dismissed from his employment on disciplinary grounds. On 4 July 2007, he filed an application seeking leave to apply for judicial review under O16 r 3 of the National Court Rules (NCR). On 16th August 2007, this Court granted leave. A Notice of Motion instituting the substantive application required to be filed by O16 r 5 has never been filed to this day. This is one of two main grounds relied upon by the first and second defendants in their application to dismiss the review proceedings. The defendants’ application was contested by the plaintiff. The application was argued before me at a series of hearing late last year and I reserved my ruling which I now deliver.

Motions

2. By Amended Notice of Motion filed on 13th November 2007, the First and Second Respondents (SBDC) sought orders in the following terms:

(1) That the Proceedings herein be dismissed for failure to apply for Judicial Review within twenty-one (21) days from the date of grant of leave to Apply for Judicial Review on 16th August 2007 pursuant to Order 16 Rule 5 (1) and (4) of the National Court Rules (“NCR”) and Rule 13 (1) & (2) a & b (a) of the Judicial Review (Amendment) Rules 2005.

(2) That the Plaintiff’s Notice of Motion dated 4th July 2007 seeking orders in terms of paragraph 3 be dismissed for non-compliance of Order 4 Rule 4 (1) NCR and Rule 8 of the Motions (Amendment) Rules 2005 and Rule 17 of the Motions (Amendment) Rules 2005;

(3) That in the alternative, the Proceedings be dismissed pursuant to Order 12 Rule 40 of the NCR and Rule 13 (2) a & b (a) of the Judicial Review (Amendment) Rules 2005 for disclosing no reasonable cause of action, for being frivolous or vexatious and for being an abuse of process of the Court.

(4) That the plaintiff shall pay the costs of the application and the proceedings.

3. The application is supported by various affidavits and these are the affidavit of Simon Ketan sworn on 27th September 2007 and filed on 3rd October 2007; Peter Kamara sworn on 27th September 2007 and filed on 3rd October 2007; Simon Ketan sworn on 6th November 2007 and filed on 7th November 2007; Simon Ketan sworn on 12th December 2007 and filed on 13th December 2007 and Brian Kiap Komun sworn on 27th December 2008 and filed on 1st December 2008.

4. In response to the defendants’ application, the plaintiff filed his own counter – notice of motion and supporting affidavits. This motion was also argued at the same time and a single ruling was agreed to by the parties and the Court. In his Notice of Motion filed on 14th November 2007, the plaintiff sought orders as follows:

(1) Pursuant to Order 2 Rule 2 of the National Court Rules, the time to dispense with compliance of Order 16 r 5 (1) & (4) of the National Court Rules, be dispensed with.

(2) As per Order 8 Rule 50 (1) of the National Court Rules, leave be granted to the plaintiff to amend the Originating Summons filed on 4th July 2007.

5. The plaintiff relies on various affidavits and these are his affidavit sworn on 1st October 2007 and filed on 2nd October 2007; his affidavit sworn on 2nd October 2007 and filed on 3rd October 2007; affidavit of Niukson Kiuk Magela sworn and filed on 14th November 2007; affidavit of the plaintiff sworn on 30th November 2007 and filed on 3rd December 2007 and the plaintiff’s affidavit sworn on 16th October 2008 and filed on 22nd October 2008.

Scrutiny of competency of Motions

6. Before proceeding any further, it is necessary to scrutinize reference to the jurisdictional provisions cited in the two motions to avoid incorrect references and avoid duplicitous jurisdictional basis of these applications. I start with the basic premise established by case law that the National Court Rules on judicial review proceedings provides the exclusive procedure for judicial review proceedings: Attorney- General Michael Gene v Hamidian Rad [1999] PNGLR 278. The relevant rules of court on judicial review proceedings are those found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005.

7. It is also established that the proper jurisdictional basis for any interlocutory application such as an application to set aside an interlocutory order in a judicial review proceedings must be found in O 16 of the National Court Rules and not elsewhere in the National Court Rules: Sir Julius Chan v Ombudsman Commission (1998) SC 556. The rules of the National Court Rules relating to Notice of Motion in ordinary civil proceedings applies to judicial review proceedings under O16 by virtue of rule 13 (1) of the Judicial Review (Amendment) Rules 2005. The Motion Rules in the National Court Rules was amended by the Motion (Amendment) Rules 2005. Rule 8 of the Motion (Amendment) Rules 2005 requires a Notice of Motion to state the Court’s jurisdiction to grant the orders being sought by stating the correct provision in the rules of Court or statute conferring such jurisdiction on the Court. Failure to comply with this rule renders the Motion or the order sought in the Motion incompetent and they may be struck out or dismissed for this reason alone.

8. Finally it is established that it is not open to a person aggrieved by an ex parte order granting leave for review to apply to set aside the ex parte order; the only proper course is to appeal the decision under O16 r 11 of the National Court Rules and under O10 of the Supreme Court Rules: Sir Julius Chan v Ombudsman Commission (1998) SC 556; Sir Julius Chan v Ombudsman Commission (1998) SC 557.

9. In the present case, references to Order 4 Rule 4 (1) NCR and Order 12 Rule 40 of the NCR in SBDC’s Motion offends these principles and they are struck out. The effect of this ruling is that the orders sought still remain to be processed under the alternative provisions under O16 pleaded therein.

10. In respect of the plaintiff’s motion, reference to O4 r 4 of the NCR was later amended with leave of the Court to plead the correct jurisdictional provision which is in the Judicial Review (Amendment) Rules 2005. However reference to O8 r 50 (1) was not amended and it is struck out. The effect of this ruling is that the...