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Sinochem (PNG) Pty Ltd v Lagari, Senior Magistrate [1998] PGNC 41; N1782 (28 May 1998)

Unreported National Court Decisions

N1782

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 150 OF 1998
BETWEEN: SINOCHEM (PNG) PTY LTD
PLAINTIFF
AND: JOHN LAGARI (SENIOR MAGISTRATE)
FIRST DEFENDANT
AND: GRAHAM BINOGO & 43 ORS
SECOND DEFENDANT

Waigani

Sevua J
13 May 1998
28 May 1998

ADMINISTRATIVE LAW – Judicial review – Application for leave – General principle – Where alternative statutory remedies not exhausted – Whether abuse of process – District Courts Act s.231, Order 16 National Court Rules.

CASES CITED

Rose Kekedo -v- Burns Philip (PNG) Ltd & Ors [1993] PNGLR 122.

Counsel

Mr. L. Manua for Plaintiff

28 May 1998

SEVUA J: This is an application for leave for judicial review of a decision of the Magarida District Court, pursuant to Order 16 National Court Rules.

On 3^rd December, 1997, the first defendant sitting as the Senior Magistrate of the Magarida District Court, made an order for payment of various amounts of money in favour of the forty four employees of the plaintiff for unpaid wages claims. The forty four employees are the second defendant herein. The various amounts totaled K31, 586.00.

The evidence in support of this application is by way of sworn affidavits of Hou Guang Wen and Mr Manua, counsel for the plaintiff/applicant. From Mr Wen’s affidavit, the complaint, summons and order were forwarded to the plaintiff’s office in Port Moresby in late December, 1997. I note here that there is no evidence of the exact date these documents were despatched, and no evidence of the exact date they were received in Port Moresby. On 6^th January, 1998, instructions were given to Fiocco Posman & Kua to appeal against the first defendant’s decision.

The plaintiff was advised that the time within which to lodge an appeal had expired on 3^rd January, 1998. The plaintiff was also advised that, if the proceedings had been conducted exparte, an application to set aside the order could be made to the District Court. Relevant court documents were subsequently filed at Magarida District Court on or about 2^nd February, 1998. These documents were rejected by the first defendant on the basis that the plaintiff had been represented in the District Court by a Mr Yang, an employee of the plaintiff based at Magarida Camp, who had been served with the complaint and summons on 28^th November, 1997.

Mr Yang was not able to contact the plaintiff’s office in Port Moresby in time after he was served, due to communication and transport difficulties.

On the other hand, Mr Wen said, Mr Yang was not authorized to represent the plaintiff in the District Court proceedings. This piece of evidence is rather strange. In my view, Mr Yang did the right thing under the circumstances to represent the plaintiff. It is true, he is not the plaintiff, however, considering the difficulties Mr Wen has alluded to, it is a very poor excuse for the plaintiff to say Mr Yang was not authorized to represent the plaintiff.

Mr Yang had, with the assistance of the District Court staff, filed an appeal – a notice of appeal and a recognizance on appeal. Therefore, Appeal No. 2 of 1997 had been in existence since 17^th December, 1997, 14 days after the first defendant made the orders. It is significant to say that the appeal was filed within the statutory time limit. Mr Wen does not appreciate this so he tries to give inexcusable reasons to justify the plaintiff’s failure and misconceived idea that instead of pursuing the appeal, the plaintiff can come to this Court to get leave for judicial review.

On 3^rd February, 1998, the appeal documents referred to above were forwarded to the plaintiff’s lawyers, who subsequently advised that the plaintiff could not proceed with the appeal because the notice of appeal, though filed within time limit, was not served on the Registrar of National Court and the appeal was not entered for hearing within the prescribed time limit. Consequently, the plaintiff instructed its lawyers to apply for judicial review. This advice is not correct for the reason I will advert to later.

It appears to me that Mr Yang had done the right thing for the plaintiff and I see no reason why the plaintiff could not proceed to pursue the appeal, instead of coming to this Court. I consider that the plaintiff’s opinion that it could get a review from this Court is misconceived because an appeal had been filed and was pending, despite failure to enter the appeal for hearing and failure to serve the Registrar.

Section 231 of the District Courts Act Ch 40 was available to the plaintiff. That provision deals with dispensation of conditions precedent to the right of appeal. Under that section, it was open to the plaintiff to make an application to the National Court seeking orders to dispense with conditions precedent to the right of appeal. I am of the view that had the plaintiff made an application pursuant to s.231, this Court would have granted appropriate orders, in the light of what Mr Yang had done, even without the assistance of a lawyer. This is not only a right, but a common practice which the plaintiff chose not to pursue.

The effect of what I have adverted to is that, the plaintiff had the right to make that application, but id didn’t, and instead, came to this Court to seek judicial review. I consider it wrong for the plaintiff to do that. An appeal was on foot, and despite failure to comply with ss 221(2), 226, 227 and 228, such failure would have been remedied by appropriate orders if an application had been made under s.231 of the District Courts Act to this Court.

I am concerned that despite the fact that the appeal is and has been on foot even though service and other requirements were not complied with, the plaintiff has come to this Court to seek judicial review. In my view, this is clearly an abuse of the process. The plaintiff cannot come to seek judicial review whilst it has an appeal pending. The plaintiff must take the appropriate steps to pursue that appeal.

The general principle set down by Rose Kekedo -v- Burns Philip (PNG) Ltd & Ors [1988-89] PNGLR 122 settles the law in this jurisdiction. “It would be an abuse of process for the National Court to grant an application for leave to apply for judicial review whilst alternative administrative appeal procedures were being pursued.” That is what the Supreme Court said amongst other things.

I conclude that in this case, the plaintiff has an appeal on foot and pending in the Magarida District Court despite the failure to comply with certain provisions of the District Courts Act.

The appeal procedures available under the District Courts Act, including an application pursuant to s.231 of that Act, has not been exhausted. Accordingly, the plaintiff cannot come to this Court to apply for leave for judicial review.

The plaintiff’s application is an abuse of the process of the Court and the Court has inherent powers and powers conferred by the National Court Rules to dismiss proceedings which are an abuse of its process.

This application is therefore dismissed. The plaintiff should return to the District Court to pursue its appeal.

Lawyer for Plaintiff: Fiocco Posman & Kua