N3809

PAPUA NEW GUINEA
[In the National Court of Justice]

os (jr) nO. 680 OF 2008

In an application for judicial Review
Commenced by originating summons

between:

miai larelake
Plaintiff

AND:

hon. havila kavo, mp in his capacity as Governor of Gulf Province and Chairman of the Gulf Provincial Executive Council
First Defendant

AND:
Gulf provincial executive council
Second Defendant

AND:
Gulf provincial government
Third Defendant

AND:
hon. peter o’neill, mp in his capacity as the MINISTER FOR PUBLIC SERVICE
Fourth Defendant

AND:
hon. job pomat, mp in his capacity as the MINISTER FOR INTER-GOVERNMENT RELATIONS
Fifth Defendant

AND:
simon peter
Sixth Defendant

AND:

rigo lua, dr. linda tamsen and DR. PHILIP KEREME PH.D in their capacity as COMMISSIONERS of the PUBLIC SERVICES COMMISSION
Seventh Defendant

AND:

PUBLIC SERVICES COMMISSION
Eighth Defendant

AND:

GRAND CHIEF RT. HON. SIR MICHAEL T. SOMARE, MP in his capacity as CHAIRMAN for and on behalf of the members of the NATIONAL EXECUTIVE COUNCIL
Ninth Defendant

AND:

NATIONAL EXECUTIVE COUNCIL
Tenth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Eleventh Defendant

Waigani: Paliau, AJ
2009: 03rd & 13th November

Practice & Procedure – Application to Summarily Determined proceedings for failure to comply with Court’s Directions and Want of Prosecution – National Court Rules – O. 16 r. 13(13)(1) and (2), O.4 r. 36(1) and Constitution s.155(4) – Application refused.

Cases cited:

William Maki Michael Pundia v. PNG Motors [1993] PNGLR 337
Karl Paul and Aruai Kispe and 2 others, N2085
The State v. Alphonse Woinangu, N966
Vailala Purari Investment Limited & 12 v. Papua New Guinea Forest Authority & 2 Ors, OS No. 566 of 2003, N2594 
Kai Ulo & 2 Ors v. The State [1981] PNGLR 148
Stanley Miam v. Joe Dai & 4 Ors, (2009) N3699

Counsel:

Mr. S. Soi, for the 1st, 2nd, 3rd & 6th Defendants
Mr. T. Cooper, for the 4th, 5th, 7th, 8th, 9th, 10th & 11th Defendants
Mr. M. Wilson, for the Plaintiff

RULING

13th November, 2009

1. PALIAU, AJ: This is an application by way of Notice of Motion by the First, Second, Third and Sixth Defendants to strike out or dismiss the Judicial Review proceedings commenced by the Plaintiff. The application is to dismiss the proceedings in its entirety. The Motion was filed on 17th July 2009.

2. The application was made pursuant to Order 16 Rule 13(13)(1) and (2)(a) of the Judicial Review (Amended) Rules 2005 and Order 4 Rule 36(1) of the National Court Rules and Section 155(4) of the Constitution. 

3. Mr. Soi of counsel for the Defendants moved the Court to have the Judicial Review proceedings to be summarily dealt with and dismissed for want of prosecution. This is so because he submits that the Plaintiff has failed to comply with the Court Directions issued on the 15th June 2009.

4. Mr. Cooper of counsel for the 4th, 5th, 7th, 8th, 9th, 10th and 11th Defendants supports the application by Mr. Soi.

5. The Court’s Directions which were issued on the 15th June 2009 was in the following terms:

(1) Parties exchange final affidavits within seven (7) days by or before 22nd June 2009.

(2) Plaintiff to draft Statement of Legal Issues and Agreed and Disputed Facts by 29th June 2009.

(3) Defendants to respond by 2nd July 2009.

(4) Parties to settle draft index to the Review Book by 6th July 2009.

(5) Parties to file and serve relevant notices under the Evidence Act by 8th July 2009.

(6) Plaintiff to forward Draft Index to the Review Book by 10th July 2009.

(7) Defendant to respond to draft index to the Review Book by 13th July 2009.

(8) Parties to finalise a Review Book by 14th July 2009.

(9) Plaintiff to serve the Review Book on all parties by 16th July 2009.

(10) Parties to return to Court on 20th July 2009 pre-hearing conference:-

(i) Obtain date for hearing.

(ii) File extract of submissions.

(11) Parties ensure the State is separately served and advised of the progress of the matter and the date of hearing of the same.

FACTS

6. On the 5th November 2008, the Plaintiff commenced this proceeding by applying for leave to apply for Judicial Review and leave was granted on the 13th November 2008.

7. It is not clear from the Court’s file as to how the Plaintiff progressed his Judicial Review application after leave was granted, but on the 15th June 2009, the Court issued the above Directions on the parties with a view to speedily progress the matter.

8. On the 17th July 2009, the First, Second, Third and Sixth Defendants filed this Notice of Motion for the Court to summarily determine this proceeding for want of prosecution, for failure to comply with the Court’s Directions of 15th June 2009.

9. The Notice of Motion together with the supporting affidavit were filed and served on the Plaintiff also on the 17th July 2009.

ISSUES

10. The issues for the Court’s determination are:

(1) Whether the National Court’s Directions of 15th June 2009 were not complied with by the Plaintiff.

(2) If the answer to issue (1) is in the affirmative, whether the Court has the jurisdiction to summarily determine this proceeding.

(3) If the answer to issue (1) is in the negative, then it is not necessary to determine whether the Court has the jurisdiction to summarily determine this proceeding. 

ISSUE (1) - Whether the National Court’s Directions of 15th June 2009 were not complied with by the Plaintiff.

Defendant’s Submission

11. The Defendants are saying that the Plaintiff failed to comply with the Court’s Directions of 15th June 2009. They are relying on the Affidavit evidence of Ure Hane filed on 17th July 2009.

12. First, they submitted that the counsel representing the Plaintiff (Mr. Mulina) was present in Court on the 15th June 2009 when the Directions were given. These Directions were not filed by the Plaintiff and served on the Defendants, including the State as per Direction 11.

13. The Defendants filed the Court Directions on the 9th July 2009 and uplifted a sealed copy of the Directions on the 10th July 2009 and on the 13th July 2009, they enclosed the Directions in a covering letter and served on the Plaintiffs lawyers on the 14th July 2009.

14. By 17th July 2009, the Plaintiff was still yet to comply with all the Directions. 

15. The Defendants submitted that the Plaintiff has therefore defaulted in not complying with the Court’s Directions of 15th June 2009 and the appropriate remedies as per the National Court Rules must be accorded to them.

Plaintiffs Submission

16. The Plaintiff by an affidavit of Michael N. Wilson sworn on the 20th July 2009 and filed on the 21st July 2009 deposed that Mr. Wilson being the lawyer having the carriage of this matter was not aware of the Directions of the 15th June 2009 whereby Mr. Roy Mulina was to have drafted and filed the Directions. 

17. He also deposed to the effect that Direction No. 1 of the Directions were not complied with by all parties and non-compliance by all parties also of Direction No. 5 to file and serve notices under the Evidence Act on the 8th July 2009. 

18. Mr. Wilson also deposes that he had prepared a draft Statement of Agreed and Disputed Facts and Legal Issues and a draft Index to the Appeal Book and forwarded to the Defendants lawyers. 

19. He also stated that if the lawyers did not respond and resolve the matters he would seek leave to move for extension of time and complete the requirements for pre-hearing conference. 

20. He noted further that there was a motion for the dismissal of the entire proceedings by the Defendants which was served on 17th July 2009.

21. In his affidavit of 11th August 2009, Mr. Wilson stated that he prepared a motion for the pre-trial hearing to be adjourned so that preliminary matters be dealt with.

22. Whilst this was being done. Mr. Wilson stated that the Defendants sought to have the matter dismissed for non-compliance.

23. Mr. Wilson’s attempt to serve the Notice of Motion to extend the time for pre-trial hearing was refused by Mr. Soi. Mr. Soi refused or disregarded acceptance of service because he had a motion on foot.

24. Whilst this was going on, a settlement was sought with the State by Mr. Wilson on behalf of the Plaintiff. This was for the State to invoke its powers under Clause 16 of the Contract to redeploy the Plaintiff elsewhere: On the 12th October 2009, Justice Gavara-Nanu made orders to the effect that if settlement fails, then the Motion by the Defendants would be heard on 3rd November 2009.

25. The Plaintiff submitted that the orders by Justice Gavara-Nanu was for the settlement to take place and these overlap the motion by the Defendants for the matter to be dismissed. On this basis, the Defendant was not acting in good faith to settle, because they were simultaneously moving to have the case dismissed. Furthermore, the Plaintiff only received an affidavit from Mr. Manasupe Zurenuoc that the State will not enter into a settlement on 2nd November 2009. The Affidavit was sworn on the 28th October and filed on the 30th October 2009. 

26. Therefore, the Plaintiff submitted that he has given reasons for the delay and the Court must accept them and it is fair and just for the case to proceed on their merits. 

27. It is now for the Court to determine the issue of non-compliance of the Court’s Directions.

28. As submitted by the Defendants each Direction is consequential on the other. This means that a non-compliance of one will affect the compliance of another. 

29. It is evident that the Plaintiff did not file its affidavits as directed by Direction No. 1. The consequence of that was the fact that the parties were not able to advance to implement Direction No. 2 and that was for the Plaintiff to draft Statement of Legal Issues and Agreed and Disputed Facts and serve on the Defendants for their response.

30. The Plaintiff attempted to comply with Directions No. 2 and No. 4 but that was well after 17th July 2009 and that was the time that the Plaintiff was to have served the Review Book to all parties in compliance with Direction No. 9.

31. If the Plaintiff was of the view that the Court’s Directions will not be complied with on time, the logical thing to do was to apply to the Court for extension of time. The Plaintiff claimed that he attempted to file and serve on the Defendants a motion to this effect but they refused to accept service of same upon direction by Mr. Soi. This was because they had a motion on foot to dismiss in its entirety the proceeding. 

32. The Plaintiff in my view should have filed that motion and in compliance with the procedures for service under the National Court Rules serve the motion on the Defendants and it is up to the Court to deal with them. This application could be dealt with by the Court at the same time that the application by the Defendants is dealt with. In the final analysis the Court is the one that determines which application to accept and which not to accept. Whether or not an application complies with the National Court Rules is for the Court to determine. It is not for counsels to take it upon themselves to admit or refuse applications. 

33. It is evident that whilst the Motion by the Defendants to dismiss the proceedings for non-compliance with the Court’s Directions was on foot, and whilst the Plaintiffs attempt to file and serve its motion for extension of time for compliance with the Court’s Directions, which was refused by the Defendants, the Plaintiff through his lawyer sought settlement with the State to invoke its powers under Clause 16 of the Employment Contract to redeploy the Plaintiff elsewhere. This settlement process was ordered by the Court on the 12th October 2009 by Justice Gavara-Nanu. His Honour also ordered the motion by the Defendants would be heard on the 3rd November 2009 if settlement fails. 

34. The affidavit by Mr. Manasupe Zurenuoc deposed to the fact that the Plaintiff cannot be redeployed elsewhere because to do so would not only be setting a bad precedent as the Plaintiff has a series of outstanding allegations against him, but also the matter is sub-judice. That the matter is best left to the National Court to determine the current judicial review application before any administrative determination is made. 

35. It is also evident that the Minister for Public Service, Hon. Peter O’Neill was of the view that the matter be dealt with by the Court. 

ISSUE (2) - If the answer to issue (1) is in the affirmative, whether the Court has the jurisdiction to summarily determine this proceeding.

36. Having considered all the above facts and evidence in totality, I am of the considered opinion that whilst the Plaintiff did fail to comply with the Court’s Directions of 15th June 2009, he has provided explanations to my satisfaction why this was so. 

37. First, there was a genuine attempt by the Plaintiff to file and serve a motion to extend time to comply with the Court’s Direction of 15th June 2009. But this was blocked by the Defendants for the reason that their motion was on foot to dismiss the proceeding in its entirety.

38. Second, there was a genuine attempt by the Plaintiff to comply with at least Court’s Directions No. 2 and No. 4.

39. Third, I consider that the Plaintiff was genuine in his negotiation proposal for settlement which took almost one month which culminated in the State rejecting it. 

40. The Defendants relied on Order 16 Rule 13(13)(1) and (2)(a) of the Judicial Review (Amendment) Rules 2005 in particular paragraph (2)(a) where it provides for summary disposal that ‘any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Practice Directions or any other competency grounds.’ In support of the Defendants reliance on this Order, they also relied on these cases for the proposition that the Court should take firm control of the proceeding before it: Karl Paul and Aruai Kispe and 2 others, N2085; State v. Alphonse Woinangu, N966; and OS No. 566 of 2003, Vailala Purari Investment Limited &12 v. Papua New Guinea Forest Authority & 2 Ors N2594 

41. The Defendants also relied on Order 4 Rule 36(1) of the National Court Rules wherein it states that ‘where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may stay or dismiss the proceedings.’ These cases were also relied on for the principle that proceedings filed before the Courts should be prosecuted with due dispatch: Kai Ulo & 2 Ors v. The State [1981] PNGLR page 148 and Stanley Miam v. Joe Dai & 4 Ors, (2009) N3699.

42. The terms of the Orders 16 Rule 13(13)(2)(a) and Order 4 Rule 36(1) are not mandatory but discretionary. I am therefore mindful of the fact that although the Court has power to control proceedings before to summarily determining them, for failure to comply with the Court’s Directions or orders or for failure to prosecute the proceeding with due dispatch, the exercise of this discretion should be exercised sparingly and with caution and more so if the exercise of it will effectively put an end to an action: See William Maki Michael Pundia v. PNG Motors [1993] PNGLR 337. 

43. I am of the view that the Plaintiff has met the test of leave to apply for Judicial Review of the decision of the First Defendant which leave was granted on 13th November, 2008. That the Plaintiff has an arguable case. That he has a chance to succeed if the matter were to proceed to trial. 

44. Having considered all the above, the justice of this case demands that the application for judicial review by the plaintiff must be heard and finally determined. 

45. I will therefore exercise the Court’s discretion not to summarily dismiss the application for judicial review as per the Notice of Motion filed by the Defendants on 17th July 2009. 

ORDER

46. The formal orders of the Court are:

(1) That these proceedings are not summarily determined. 

(2) That the Court’s Directions of 15th June 2009 are extended but  subject to the following time lines:

(a) Parties exchange final affidavits (if not already done so) within two (2) days by or before 17th November, 2009.

(b) Plaintiff to draft Statement of legal Issues and Agreed and Disputed Facts by 19th November 2009. 

(c) Defendant to respond by 24th November 2009. 

(d) Parties to settle draft Index to the Review book by 27th November 2009. 

(e) Parties to file and serve relevant notices under the Evidence Act by 1st December 2009. 

(f) Plaintiff to forward draft Index to the Review Book by 3rd December 2009. 

(g) Defendant to respond to draft Index to the Review Book by 7th December 2009.

(h) Parties to finalize Review Book by 8th December 2009.

(i) Plaintiff to serve the Review Book on all parties by 10th December 2009. 

(j) Parties to return to Court on 14th December for pre-hearing conference:

(i) Obtain date of hearing;

(ii) File extracts of submissions. 

(k) Parties ensure that the State is separately served and advised of the progress of the matter and the date of the hearing of the same. 

(3) Any failure at all by the Plaintiff to comply with any of the above Directions, the Defendants shall apply to have the matter dismissed for want of prosecution or for non-compliance.

(4) Parties are at liberty to apply giving three (3) clear days notice.

(5) I make no orders as to costs. 

Ordered accordingly.

______________________________

Soi & Associates Lawyers: Lawyers for the 1st, 2nd, 3rd & 6th Defendants
Rageau Manua & Kikira Lawyers: Lawyers for the 4th, 5th, 7th, 8th, 9th, 10th & 11th Defendants
Warner Shand Lawyer: Lawyer for the Plaintiff