N5527

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 490 of 2012

APPLICATION FOR JUDICIAL REVIEW PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

AND:

RABAUL SHIPPING LIMITED
Applicant

AND:

CAPTAIN NAFIZUL HOSSIN MANAGER, SURVEY AND INSPECTION
First Respondent

AND:

CHRIS RUPEN – GENERAL MANAGER NATIONAL MARITIME SAFETY AUTHORITY
Second Respondent

AND:

NATIONAL MARITIME SAFETY AUTHORITY
Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Kokopo: Oli, AJ
2013: December 20th
2014: March 5th.

CIVIL JURISDICTION - CIVIL PRACTICE & PROCEDURE - Application by Respondents to seek leave to amend first Respondent affidavit under Order 12 Rule 1 of the National Court Rules – Reason to include omission of important paragraph 8 from first respondent affidavit – Such omission was caused by former in-house lawyers oversight – Third Respondent now has new in-house lawyer and pick up the omission during Review Book preparation before matter proceed to Judicial Review hearing – The matter cannot proceed to Judicial Review hearing without Review Book being certified by both parties.

CIVIL JURISDICTION - CIVIL PRACTICE & PROCEDURE - Application by Respondent to seek leave to amend first Respondent affidavit under Order 12 Rule 1 of the National Court Rules – Applicant object generally to the motion - enough delay on the Review Book certification by the Respondent for two years – Now seek leave of the Court to amend first Respondent affidavits is nothing but contribute to further delay – Court consider interest of parties and the justice of the case – The fundamental omission in first respondent's affidavit was caused by former in-house lawyer's oversight - The amendment to first respondent's affidavit will assist the Court during Judicial Review hearing to arrive at the outcome according to the law – The Judicial Review application was granted in favour of the applicant to review the first respondent's performing and exercising his statutory powers – Hence, it is in the interest of justice that leave is granted – Cost be in the cause.

Cases Cited:
 Nil

Counsel:

Mr. David Liggett, for Applicant
Mr Trevor Potoura, for 1st, 2nd& 3rd Respondents'
Mr Justin Edo, for Fourth Respondent

INTERLOCUTORY RULING

5th March, 2014

1.	OLI, AJ.: The first and second Respondents filed an urgent motion on 20th December 2013 to move the National Court for Orders that:

1. Leave be granted to First Respondent to amend and file his affidavit within (14) fourteen days pursuant to Order 12 Rule 1 of the National Court Rules.

2. If Order 1 above is granted that the First Respondent's Amended Affidavit be included as part of the Review Book before the Respondent's endorse the Review Book and prior to the matter being set down for hearing pursuant to Order 12 Rule 1 of the National Court Rules.

3.	 Costs to be in the cause.

4.	 Any other Orders this Honourable Court deems fit.

FACTS

2.	The brief background facts is that application is made by applicant for Judicial Review of administrative decisions made by first and second respondents who are employees of third defendants under Order 16 of the National Court Rules. The Order 16 of the National Court Rules reads:

"Order 16 Rule 1.      Cases appropriate for application for judicial review. (UK. 53/1)
(1)     An application for an order in the nature of mandamus, prohibition, and certiorari or quo warrantor shall be made by way of an application for judicial review in accordance with this Order.

(2)     An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to—

(a)  the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari; and

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and

(c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review."

3.	The applicant has already obtained leave for Judicial Review under Order 16 Rule 1 of the National Court Rules and it is on foot for substantive hearing; however, the first respondent seeks leave of the Court for an Order to file supplementary amendment to his first affidavit in order to progress the Review Book for certification by respondent and applicant in readiness for the matter to proceed for parties to secure a hearing date for Judicial Review proper by the Court. The Counsel for 4th Defendant (State) Mr Edo concurs with the motion by the first, second and third Respondents accordingly. Mr Edo emphasises the importance of the first Respondents to file supplementary affidavit by first Respondent, as this will assist Applicant and Respondents in the substantive hearing of the Judicial Review sought by the Applicant and the Court will be better placed to make a well informed decision in the substantive hearing of the Judicial Review proper.

ISSUE

4.	The issue is whether the 1strespondent's motion to seek leave of the Court to include the relevant fundamental materials that were omitted in the first affidavit should be included in the amended supplementary affidavit be granted at this stage of the proceedings.

LAW

5.	The first and second respondent seeks general relief under Order 12 Rule 1 of the National Court Rules where it states:

Order 12 Rules 1.      General relief. (40/1)
"(1). The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process".

6.	The motion on behalf of the respondents, in particular by first respondent is supported by his own affidavits sworn on 11th December 2013 and filed on 12th December 2013highlight the omission of the relevant materials from pages 1 to 10 have not included paragraph 8 in the preparation of the Review Book. 

7.	This motion is to remedy that omission detected in the affidavit by first respondent and amended supplementary affidavit by first respondents is to cure that omission and to certify the Review Book before matter is ready to go for Judicial Review hearing proper. The Counsel for Respondents informed court that supplementary affidavit is vital in order to complete the respondents requirements to certify the Review Book before it's formally agreed and endorsed by parties to allow the parties to progress to securing a hearing date.

APPLICATION OF FACTS TO THE LAW

8.	The Counsel for first, second and third respondents file this motion to seek leave of the court on behalf of the first respondent to file supplementary affidavit to amend the first affidavit sworn on 4th October 2012 and filed on 5th October 2012. The first respondent deposed a sworn affidavit dated 11th December 2013 and filed on 12th December 2013in support of the motion. In his affidavit he highlighted the fact that there were obvious omission in his first affidavit that comprise of 10 pages and reveal that paragraph 8 was omitted from his first affidavit and this was confirmed in the draft Review Book preparation stages upon thorough checking by the new in-house lawyer Mr. Potoura. This omission according to the first respondent will have substantial impact on the totality of his evidence he will give during the Judicial Review hearing, the subject of the substantive Judicial Review process to review his decision in the exercise of his statutory powers.

9.	The Counsel for respondents Mr Potoura did depose an affidavit sworn on 11th December 2013 and filed on 13th December 2013 and attest to the fact that omission could have been caused by his predecessor in-house lawyer Mr. Iamo Vere, who has left employment with National Maritime Safety Authority. The first respondent, however, alluded to the fact that first respondent did sign his first affidavit but without thorough reading through the content before signing the affidavit. If this was the case, the logic dictate that paragraph (8) in his (1-10) pages of his affidavit, could not be detected when he signed his own affidavit because he just simply signed without reading through the full content of what was contained in his affidavit document. This oversight would have been cured if the deponent, the first respondent had read his own affidavit before signing, but he didn't. 

10.	There is a undisputed genuine presumption that the authors signature on a document is a prima facie evidence, that once the deponent's signature is on the document, it confirms that the author, ought to have understood and confirmed the content of the materials in the document is true and correct in every particular of the document. The practice such as this, in this case is that, signing an affidavit without reading the content therein is highly suicidal and do not reflect very well on the deponent of the affidavit document but also the Commissioner for Oath who administered the Oath that the person must read and understand the content of the affidavit document before Commissioner of Oath as authorised celebrant signs as a witness, for obvious unprecedented detrimental outcome such as this. 

11.	The judicial administration of oath under Oath and Affirmation Act provides a simple standard practice by Commissioner of Oath for signing legal and accountable documents including affidavit that require the deponent must literally read it in front of the Commissioner of Oath, so that any corrections can be made there and then, before the deponent signs the affidavit and witness by the Commissioner of Oath and seal is the standard acceptable practice. Therefore, any short cut to this standard practice must be discouraged at all cost and Commissioner of Oath plays a very pivotal role in this regard. The first respondent, however, has now detected the omission and wish to correct the mistake is responsible move and reasonable corrective thing to do now at this advance stage of the proceeding before the parties secure a hearing date for the Judicial Review proper before the Court.

12.	The Defence Counsel Mr. Lidgett in his brief response informs Court that applicant provided an affidavit sworn and filed on 19th December 2013 and generally opposing the motion. The Counsel point out that the delay in getting the matter to secure a hearing date has not been possible because the respondents are still not ready with the Review Book and applicant has been waiting for it for well over two years now. The Respondents' motion to amend the first respondents affidavit will contribute to further delay and it's not very good for applicant in carrying on with its shipping business operation as usual whilst this matter is still pending. The applicant in his affidavit indicate and envisage that its normal business operation may be, somewhat affected whilst this matter is still hanging over applicants shoulder.

13.	 The Counsel in his submission made specific reference to applicant's affidavit that further delay of this matter in order to amend first respondent's supplementary affidavit will result in redoing the whole Review Book again. The Applicant Counsel further express grave concern that his client is running the risk of being innocent legislative victim of the proposed new legislative changes or amendment that are already introduced in Parliament will have unprecedented legislative adverse effect on applicant's business operation. 

14.	The pending amendments on relevant Maritime Legislation before the Parliament, which may be passed any time during this year and further delay in this matter is not adding value to the applicant's Judicial Review still pending before the Court. The Applicant fears that it will have adverse operational effect on its overall maritime business operation altogether, if this Judicial Review is not dealt expediously soon. The Counsel for applicant finally asks the Court to speed up the process and not allow any further delay by refusing the motion as sought by the first respondent on behalf of the respondents.

CONCLUSION

15.	The Court having heard both Counsel and perused the affidavits in support of the motion and applicant affidavit in objecting to the motion, the Court is faced with the unfortunate dilemma. However, do take note that the relevant but fundamental material by the first Respondents were omitted and discovered by the new successor of the in-house lawyer Mr. Trevor Potoura. This was discovered during the preparation of the Review Book before all parties agreed and certified the Judicial Review Book before securing a hearing date for proper Judicial Review before the Court. It is imperative that first Respondent does include paragraph (8) in the second supplementary affidavit sought in this motion pursuant to Order12 Rule 1 of the National Court Rules. 
16.	According, to respondents Counsel Mr. Trevor Potoura, if this motion is refused this will effectively mean that the relevant and fundamental materials or documents will be omitted and this will not only have futile adverse impact on the final certification of the Review Book that will go before the Judicial Review hearing, but the omission material at paragraph 8 will not be tested in open Court during the hearing which the first respondents will rely on the subject of Judicial Review application by the Applicant. 

17.	The Respondent Counsel further submit that his client will be deprived of the opportunity to reveal the main legal reasons why and how he made the decision in exercising his statutory powers under the relevant Act and Regulations; the subject of this application for substantive Judicial Review deliberations sought by the Applicant. The first Respondent shifts the blame and reason for the omission over his fundamental but relevant materials that impact greatly that triggers off the Judicial Review application by the Applicant under Order 16 Rule 1 of the National Court Rules. That is, to review the administrative decision made by the first, second, and third Respondents in the due and prudent performance of their statutory powers and duties under their respective enabling legislative powers. 

18.	The Applicant is very disappointed to learn of this motion to seek leave of the Court to amend the first Respondent's affidavit with the supplementary affidavit to include relevant but fundamental legal materials, is nothing less than another strategic move to further unduly delay the substantive hearing of the Judicial Review, hence this application for Judicial Review should be dealt with without further delay. 

19.	The Applicant Counsel submit, however, that Respondents are appearing to have been engineering a delay motive/tactic in buying more time to delay the due process of Judicial Review so that the pending legislations to amend the principal legislation under National Maritime and Safety Authority Act 2003 be amended in due time before this matter is finalized, the intended legislative amendments will have negative and damaging impact on applicants normal business operation. 

20.	Whilst the Applicant fear is quite natural, the intended legislative amendments will be made by Parliament in due time at its own wisdom, on the basis of national interest dictated by public policy for the common good of the sea ferrying public, who rely on sea transport system. Whilst the appropriate maritime legislative amendments will be made by Parliament now or into the near future is beyond anyone's control, but the justice of this case so requires that Courts' inclination, is to see that the justice in this case, is not only done but seen to be done. 

21.	The Court in allowing the motion so that the Applicant will have the opportunity to test the validity of those fundamental materials that were omitted in the first Respondent's affidavit will now be included in the second supplementary affidavit by the first Respondent will be fair and proper and their validity will be tested during the inter - party substantive Judicial Review hearing. The Court accordingly grants the motion as sought by the first Respondent on behalf of the other Respondents as well. The Court orders accordingly.

ORDER

22. The Court makes the following Orders that:

1.	The motion by first and second respondents seeking leave under Order 12 Rule 1 of the National Court Rules is granted.

2.	The amendment to first respondent affidavit be file in the next fourteen (14) days from today's date and served on the applicant within the fourteen days.

3.	The matter return to Court on 19th March2014 at 9.30am for parties to fix a date for hearing of the Judicial Review.

4.	Cost is in the cause.
_____________________________________________________________
Rabaul Shipping Ltd In-house Lawyer: Lawyer for the Applicant 
National maritime Safety Authority In-House Lawyer: Lawyer for 1st, 2nd&3rdRespondents
Solicitor-General: Lawyer for the Fourth Respondent