N3485

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 69 OF 2005

BETWEEN:

VALKYRIE No. 5 LIMITED
Applicant

AND:

INDEPENDENT CONSUMER AND
COMPETITION COMMISSION
First Respondent

AND:

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Paliau, AJ
2008: 10th, 16th June

PRACTICE AND PROCEDURE – Leave to apply for Judicial Review – Ex parte application – Leave to intervene on precluded – National Court Rules, Order 16, Rule 3.

ADMINISTRATIVE LAW – Judicial review of administrative acts – Practice and procedure – Ex parte application for leave to apply – Leave to intervene on precluded – National Court Rules, Order 16, rule 3 – State only not precluded to intervene – Section 8 of the Claims By and Against the State Act.

Cases cited:

Simon Manjin v. Post & Telecommunication Corporation & Ors [1990] PNGLR 288;
Ombudsman Commission of Papua New Guinea v. Donohoe [1985] PNGLR 348;
Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22;
Ref. R v. Mitchell, Ex parte Wafing [1973] PNGLR 461;
Peter v. South Pacific Brewery Ltd [1976] PNGLR 348;
Olasco Niugini Pty Ltd v. John Kaputin & Ors [1986] PNGLR 244;
Diro v. Ombudsman Commission of PNG [1991] PNGLR 153;
Amadio Pty Ltd v. State, Paterson Lowa and Ors. [1992] PNGLR 218;
Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Ors (1996) unreported, N1720, 6th December 1996;
The Rt. Hon. Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998) unreported, SC557, 5th June 1998;
Garamut Enterprises Ltd v. Steamships Trading Company Ltd (1999), unreported, SC625, 26th November 1999;
Frederick Martins Punangi v. Sinai Brown (2004) unreported, N2661, 8th October 2004.

Counsel:

Mr. Bluett, for the Applicant
Mr. Bull, for the First Respondent

16 June, 2008

1.	PALIAU, AJ: This is an application by the First Respondent, the Independent Consumer and Competition Commission (ICCC) to intervene on an application for leave to apply for judicial review. I gave brief reasons for refusing the application on 16th June 2008. I now give my reasons in full. 
2.	The Applicant applied for a general carrier’s license under the Telecommunications Act. The ICCC refused the application. On the 17th February 2005, the Applicant sought declaratory orders and orders in the nature of certiorari and mandamus against ICCC. The Applicant also on the same date filed a notice of motion seeking leave to apply for judicial review of the decision of ICCC. 

3.	Application for leave to apply for judicial review was heard by the National Court and on the 24th June 2005 refused leave for judicial review. Leave was refused on the ground that the Applicant had not exhausted its statutory remedy of appeal to the Appeals Panel under s 182A of the Telecommunication Act. 

4.	The Applicant appealed against the decision and on the 8th June 2007 the Supreme Court upheld the appeal because there was no Appeals Panel in place in order for the Applicant to lodge its appeal to. The matter was remitted back to the National Court to determine the issue of leave. 

5.	The application for leave came before me for determination on the 10th June 2008. At the same time the First Respondent, ICCC sought leave to intervene or to oppose the Applicant’s application for leave for judicial review. I refused leave to intervene and gave brief reasons. I now give my reasons in full.

6.	The question for determination is; may other parties be permitted to intervene or to oppose an application for leave to apply for judicial review? If the answer is no, does the Court have the discretion to allow interested or potentially interested parties to intervene?

National Court Rules

Order 16 Rule 3(2)

An application for leave to apply for Judicial Review must be made ex parte to the Court.

Order 16 Rule 3(3)

Applicant must give notice of application to the Secretary for Justice within 2 days before application is made and must at the same time lodge with the Secretary copies of the statement and every affidavit in support.

 Claims By and Against the State Act, Section 8

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been offered an opportunity to be heard.

7.	In the Supreme Court case of Ombudsman Commission v. Donohoe [1985] PNGLR 348, His Honour Amet, J (as he then was) said at p361:

"…. an application for leave to file an application for Judicial Review ….. is ex parte and so the Court does not have any other material contesting the application. 
I consider that the substantial issues raised are matters properly to be considered by the Court hearing the substantive application, depending on its conclusion of facts upon an assessment of all the evidence and the benefit of legal arguments."

8.	The Supreme Court was of the view that hearing of leave application for Judicial Review must strictly be ex parte; it is an hearing without the presence of interested or potentially interested parties. 

9.	It was also of the view that at this stage of the proceeding arguments relating to substantive issues cannot be put to the Court. This decision was affirmed by the Supreme Court in 1993 in the case of Geno v. PNG [1993] PNGLR 22. 

10.	In two other previous Supreme Court cases and subsequent cases the meaning of hearing ex parte was discussed and they concluded that it means strictly a hearing in the absence of the respondent or respondents, Ref. R v. Mitchell, Ex parte Wafing [1973] PNGLR 461, Peter v. South Pacific Brewery Ltd [1976] PNGLR 348, The Rt. Hon. Sir Julius Chan v. Ombudsman Commission of Papua New Guinea (1998), SC557 and Garamut Enterprises Ltd v. Steamships Trading Company Ltd (1999), SC625. 

11.	The Supreme Court position is therefore clear. The Court does not have the discretion to allow opposing parties to intervene at this stage of the proceedings. 

12.	However, in at least four other National Court cases, they have deviated from the Supreme Court position and allowed the respondent or respondents to intervene for different reasons – Olasco Niugini Pty Ltd v. Kaputin [1986] PNGLR 244, per McDermott AJ (as he then was), rules does not preclude hearing other parties at the leave stage; Diro v. Ombudsman Commission of PNG [1991] PNGLR 153, per Sheehan J, however such intervention is best confined to submissions without the filing of Affidavit material in opposition; Amadio Pty Ltd v. State, Paterson Lowa and Ors [1992] PNGLR 218, per Woods J, respondent/s are allowed to intervene only in making submissions to areas where the Court feels it needs assistance; Ombudsman Commission of Papua New Guinea v. The Hon. Justice Sakora & Others (1996) unreported, N1720, per Amet CJ, discretion rests in the Court in appropriate circumstances to grant leave to intervene, particularly if the relief being sought in the application for review is likely to affect their interest in a substantive way. 

13.	My view is that Order 16 Rule 3(2) provides in no uncertain terms that an application for leave to apply for Judicial Review must be made ex parte to the Court. The only person or entity that is given automatic right to be heard at this stage of the proceeding is the State, in effect, the Secretary for Justice. (see Section 8 of the Claims By and Against the State Act and Order 16 Rule 3(3) of the National Court Rules).

14.	Order 16 Rule 3(2) does not give the discretion to the Court to direct or allow interested parties or potentially interested parties or respondent/s or defendants to intervene to be heard at this stage of the proceeding. "Ex parte" means a hearing in the absence of the party or parties affected. 

15.	The Supreme Court’s position is clearly provided in the cases cited above. The Supreme Court decision is therefore binding on this Court and I do not see any basis for me to deviate from that position. 

16.	I find support in the National Court cases of Frederick Martins Punangi v. Sinai Brown (2004), N2661 and in particular Simon Manjin v. Telecommunication Corporation [1990] PNGLR 288, at 290 where His Honour, Hinchliffe J, stated clearly that; 

"There is no provision for [the intervention of other parties] 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 O16, r3(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."

17.	I have no doubts in my mind that an application for leave to apply for Judicial Review ex parte to the Court under Order 16 Rule 3(2) simply means that it is an application without the presence of interested parties or potentially interested parties or respondent/s or defendant/s. The Court does not have the discretion to direct or allow intervention at this stage of the proceedings. The only exception is the Secretary for Justice under Order 16 Rule 3(3) and Section 8 of the Claims By and Against the State Act and his involvement is automatic. There is no need for him to apply to intervene. 

18.	The interested parties or potentially interested parties or the respondents or the defendants would have to wait their turns when the application for leave is granted and application for Judicial Review is being heard, (see Order 16 Rule 5(2) and Order 16 Rule 9(1) of the National Court Rules). 

19.	With the forgoing reasons, intervention by other parties in an ex parte proceeding under Order 16 Rule 3(2) is not permitted and the Court does not have the discretion to direct or allow interested parties or potentially interested parties to intervene. 

20.	As the requirements of Order 16 Rule 3(2) are mandatory I will not exercise the Court’s discretion to dispense with these requirements pursuant to Order 1 Rule 7.

21.	 The application by the First Defendant for leave to appear and oppose the Plaintiff’s application for leave to apply for Judicial Review is refused. 

22.	I make no orders for costs.

__________________________________________

O’Briens Lawyers: Lawyers for the Applicant
Allens Arthur Robinson Lawyers: Lawyers for the First Respondent