Papua New Guinea Law Reports - 1990
[1990] PNGLR 288
N887
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
SIMON MANJIN
V
POST AND TELECOMMUNICATION CORPORATION AND OTHERS
Waigani
Hinchliffe J
11 May 1990
14 May 1990
27 June 1990
PRACTICE AND PROCEDURE - Leave to apply for judicial review - “Ex parte” application - Service of respondent inappropriate - Leave to intervene refused - National Court Rules, O 16, r 3.
The National Court Rules, O 16, r 3(2), provides that: “An application for leave [to apply for judicial review] must be made by originating summons ex parte to the Court ... and must be supported ...” by affidavits.
Held:
(1)      The application for leave to apply for judicial review under O 16, r 3, is an “ex parte” application on which there is no requirement or justification for the presence of the accused.
(2)      Accordingly, where a respondent party was erroneously served with notice of an ex parte application under O 16, r 3, and sought to intervene, leave to intervene should be refused.
Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, not followed.
NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70 at 74, considered.
Cases Cited
The following cases are cited in the judgment:
NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70.
Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244.
Notice of motion
This was an application by a party served with notice of the application to intervene on an application for leave to apply for judicial review.
Counsel:
A Marat, for the plaintiff.
B Frizzell, for the defendants.
Cur adv vult
27 June 1990
HINCHLIFFE J.: On 14 May 1990, I gave brief reasons for refusing the defendant’s application to intervene in the plaintiff’s application for leave to apply for judicial review pursuant to O 16, r 3 of the National Court Rules 1983. I now give my reasons in full.
Order 16, r 3(2) of the said Rules provides:
“An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported ...”
Even though it is clear that it is an ex parte application, the lawyer for the defendants has argued that the decision of McDermott AJ in Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244, supported his submission that he could intervene. At 245 of the said case his Honour said the following:
“I do not consider the clause ‘must be made by originating summons ex parte to the court’ to preclude intervention by other parties at this early stage. The necessity for leave was well explained in R v Inland Revenue Commissioners; Ex parte National Federation of Self Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739, where Lord Diplock said:
‘Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.’
And as Lord Scarman said (at 749):
‘The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers.’
It appears to me implicit in this reasoning that a court may hear argument at the preliminary stage, although not expressly mentioned in the rules relating to the grant of leave to apply (as distinct from the hearing of the application: see O 16, r 9(1)).”
I do not agree with McDermott AJ and it seems to me that their Lordships Diplock and Scarman were indicating that at the application for leave stage there should not be prolonged legal argument. Indeed under the English rules, which are somewhat similar to ours, the application may be determined by the judge without a hearing and in private.
There is no need for the defendants to be present on the application and hence the reason for the ex parte proceedings. Order 16, r 3(2)(a) and r 3(2)(b) ensure that a statement is provided with the application setting out the name and description of the applicant, the relief sought and the grounds on which it is sought. An affidavit must also be made verifying the facts relied on.
Those particulars are adequate for the judge to decide whether or not to grant leave. Before granting leave the judge must be satisfied, in accordance with O 16, r 3(5), “that the applicant has a sufficient interest in the matter to which the application relates”. That is all he needs to be satisfied about unless there has been undue delay (see O 16, r 4), before granting leave.
Wilson J in NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70 at 74, said:
“Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).
In exercising its discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):
‘If on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for judicial relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’ “ (Emphasis added.)
Those quoted words of Lord Diplock, with which I also agree, leave no doubt in my mind that the application for leave is very much an ex parte matter which is not meant to be time consuming or to be an application incurring high legal costs. To my mind, it certainly is there to prevent abuse and rid the court of mischief-makers and so on. But the judge can come to that decision reasonably quickly after hearing from the applicant’s lawyer and from perusing the documentation before him. As soon as his Honour is satisfied that the applicant has a sufficient interest and that there is an arguable case then he will more than likely grant leave. The presence of the defendant would only entail lengthy legal argument and hefty legal costs. The whole purpose of the ex parte proceedings would be lost. In any event it seems to me that a defendant’s desire to intervene would indicate that there is an arguable case and all the more reason therefore to grant leave.
I suspect that in the present case the defendants are attempting to have, in effect, the judicial review heard at the application for leave stage. I am of the view that that is improper. First, the applicant has not presented all of his evidence, neither is he bound to at this stage. The defendants are attempting to perform a short cut of the rules which is not only wrong but it would also disadvantage the applicant severely if I permitted it.
The rules are clear that the application is to be by way of ex parte proceedings. The idea is to first look at the matter and if, for example, there is no arguable case then the application will be refused. No one will have been inconvenienced and only minimum expense will have been incurred. The defendants would not even be aware of the proceedings unless it was a matter directly involving the State: see O 16, r 3(3). If leave is granted then the defendants would be notified and they could then proceed to conduct their defence knowing that they have not been brought in on a matter that lacks substance. To my mind there is a great deal of sense in the procedure.
The reason why the defendants appeared on this ex parte application for leave to apply was that they had been served by the applicant. I am quite satisfied that he erred in serving them. There is no provision for it under the rules and it would be senseless if there was such a rule because it would not then be an ex parte application. An ex parte application, according to Jowitt’s Dictionary of English Law (2nd ed, 1977) at 733, “means that an application is made by one party to a proceeding in the absence of the other.”
Webster’s New International Dictionary of the English Language (2nd ed), at 896 reads, “ex parte — of legal proceedings, ex parte ordinarily implies a hearing or examination in the presence of, or on papers filed by, one party and in the absence of, and often without notice to, the other ...”
To my mind O 16, r 3(2) is clear. There is no need to read anything into it. The application for leave to apply is an ex parte application and there is no provision or reason for allowing intervention by any other parties.
The application by the defendants to intervene is refused.
I make no order as to costs because even though the defendants application has been unsuccessful, they were served incorrectly by the applicant and hence the reason for their knowing that this application was on foot and their subsequent appearance in court.
Application to intervene refused
Lawyers for the plaintiff: Marat & Company.
Lawyers for the defendant: Warner Shand.