N6920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 616 OF 2016

BETWEEN:
SEBASTIAN YANASA on behalf of the SOLGAS Family of Lihir Island
Applicants

AND:
PAULA TALKAN for and on behalf of NAPKIA Family of Lihir Island
First Respondents

AND:
JEROME MISREN for and on behalf of the MINAI Family of Lihir Island
Second Respondents

AND:
PIOUS TAPIL & PIUS TAMGEL
ALOIS BOSLE sitting as the Lihir Local Land Court
Third Respondents

AND:
PATRICK BAIWAN sitting as the New Ireland Provincial Land Court
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Kokopo: Anis AJ
2017: 22 & 29 September

JUDICIAL REVIEW – Application to discharge or set-aside court order - originating summons only for leave to apply for judicial review - originating summons distinguished from application for judicial review - originating summons is determined once leave is granted - orders obtained under the originating summons final orders - distinguished from orders obtained under interlocutory application - application filed under Order 16 Rule 5(1) commences second set of proceeding for judicial review - want of filing application for judicial review means no judicial review - interim orders granted cannot survive after the prescribed period to apply for judicial review has lapsed

Facts

On 26 May 2017, the Court ruled, amongst other things, that there was no substantive judicial review application pending.  The Court found that although the applicants have obtained leave to apply for judicial review, they have failed to file the judicial review application within the prescribed time as ordered by the Court on 6 October 2016.  The first respondent has now applied to set aside or discharge the Court Order of 6 October 2016.

Held

1.	The originating summons (i.e., the first set of proceeding for the judicial review) was determined on 6 October 2016.

2.	The applicants' right to apply for judicial review was granted by the Court and the Court had assumed jurisdiction on the matter on 6 October 2016, but it was on the condition that the applicants would file their judicial review application within 21 days from 6 October 2016.

3.	The application for judicial review never commenced because the applicants did not file their notice of motion as required under Order 16 Rule 5(1) of the National Court Rules within the 21 days period or before or by 27 October 2016.  

4.	The applicants lost their right to apply for judicial review, as this Court has held earlier in Sebastian Yanasa and Ors v. Paula Talakan and Ors (2017) N6737, that there was no judicial review pending.

5.	Consequently, the interim orders obtained on 6 October 2016 were binding but only up to 27 October 2016.

6.	The notice of motion was granted in principle in the terms as ordered by the Court.

Cases cited:

Sebastian Yanasa and Ors v. Paula Talkan and Ors (2017) N6737
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Alex Timothy v. Hon Francis Marus (2014) SC1403
Joshua Kalinoe v. Paul Paraka (2014) SC1366
East New Britain Provincial Government v. Alex Timothy v. Hon Francis Marus (2014) SC1403

Counsel:

No Appearance for Applicants
Mr T. Yai, for the First Respondent
Ms E Takoboy, for the Third, Fourth & Fifth Respondents

RULING

29th September, 2017

1.	ANIS AJ:	I rule on the first respondent's notice of motion filed on 11 September 2017.  It seeks to discharge or set aside the Court's Order of 6 October 2016.  The notice of motion is supported by an affidavit deposed to by Tai Yai, counsel for the first respondent.  The affidavit was sworn on 7 September 2017 and filed on 11 September 2017.

2.	The notice of motion was moved on 22 September 2017.  The State made an appearance on that day.  It supported the notice of motion.  The applicants did not make an appearance.  Their lawyers sent a letter requesting for an adjournment.  The letter was dated 15 September 2017.  I heard submissions from the parties who were present in relation to the said letter, which I had brought to their attention.  Both counsel objected to the request for adjournment.  I ruled afterwards that the notice of motion was duly served on the applicants and that it was properly before the Court for hearing.  My full reasoning is in the transcript of the proceeding.

3.	I proceeded and heard submissions from the parties in relation to the first respondent's notice of motion.  I reserved my ruling to today at 9:30am.

Relevant background

4.	On 26 May 2017, I handed down a decision for this matter.  The heading is the same and my ruling was published as an unreported decision, that is, Sebastian Yanasa and Ors v. Paula Talkan and Ors (2017) N6737.  Essentially, the matter had returned before me for directions.  It was realised then that the applicants had not filed a judicial review application within 21 days as the Court had ordered on 6 October 2016.  I heard arguments from the parties before I published my decision.  In my ruling, I found that there was no application for judicial review, which was pending before the Court.

5.	This motion was filed following on from that ruling.

6.	Now, I must say that the facts of the matter are not relevant for this purpose.  As such, it is pointless to set them out under this sub-heading beyond what I have already said above, and what I will say from here onwards.

Issue

7.	The main issue is this.  What is the status of the Court Order of 6 October 2016 in light of the Court's ruling on 26 May 2017 that there was no judicial review pending in the matter?

Court decision in N6737

8.	Let me briefly explain my earlier unreported decision numbered N6737.  The applicants herein filed their application for leave to apply for judicial review at the Waigani National Court on 19 September 2016.  His Honour Justice Makail granted leave to the applicants to apply for judicial review on 6 October 2016.  His Honour also issued other orders, which I will explain, including an order for the transfer of the proceeding to the Kokopo National Court.

9.	The matter returned at the Kokopo National Court on 10 March 2017.  I issued directions to the parties, one of which was this and I quote, Parties to also prepare written submissions and appear to assist the Court on the issue, that is, what is the legal consequence given that the applicant has filed his substantive motion outside the time ordered by the court on 6 October 2016?  Parties presented their submissions to me on 19 May 2017.  I reserved my ruling and later published it as an unreported judgment as N6737.  My final ruling was and I quote, There is no application for judicial review proceeding pending before this Court.  Briefly, I found that the applicants did not file their application for judicial review within the 21 days period as ordered by the Court.  And I stopped there without deliberating further.  The reason was obvious because the Court was simply answering the legal query that it had raised.

Court Order of 6 October 2016

10.	In this instance, the first respondent has returned to Court to seek clarity and discharge of the Court's order of 6 October 2016.

11.	Let me begin with the case law.  I firstly refer to the case of Peter Makeng v. Timbers (PNG) Limited (2008) N3317.  For this purpose, let me quote in part what the Court has held concerning the judicial review process.  At paragraph 34, His Honour the Deputy Chief Justice Sir Salamo Injia as he then was, now the Chief Justice, said these:

Under O 16, a plaintiff has no right to seek judicial relief unless leave is granted. No such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or for interim relief and the Court’s jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granted leave.  Upon the grant of leave and filing of the application for judicial review, the Court assumes jurisdiction to deal with any interlocutory applications. Only then, the discretionary power under s 155(4) of the Constitution may be invoked by the Court or a party, to tailor remedies in addition to those provided by r 3(8), in aid of the substantive application for judicial review. Even then, s 155 cannot be applied to do anything contrary or inconsistent with the provisions of O16 r 3 (8).

12.	The next case I refer to is the Supreme Court case of Alex Timothy v. Hon Francis Marus (2014) SC1403.  At paragraph 17 of the judgment, the Supreme Court sets out the judicial review process and I quote:

In an Order 16 Originating Summons, a prospective applicant for judicial review must firstly obtain leave to pave the way for the judicial review. If leave is granted, the Originating Summons is then determined. As is the mandated process, once leave is granted, the action is then commenced by an application for judicial review by way of a Notice of Motion. Upon grant of leave for judicial review and upon filing a notice of motion instituting the substantive application, the Originating Summons has already been determined.  It is wrong to seek to apply to dismiss the Originating Summons as if it were still alive and pending to be tried.

13.	I agree and adopt these principles and findings as my own.  I note that the Supreme Court's judgment in Alex Timothy is binding to this Court.  The judicial review principles held in Peter Makeng is also binding to this Court because it was upheld by the Supreme Court in the case of Joshua Kalinoe v. Paul Paraka (2014) SC1366.
14.	Bearing in mind these processes, I turn to this case.  So here, leave to apply for judicial review was granted on 6 October 2016.  Leave was granted pursuant to the applicants' originating summons, which was filed on 19 September 2016 pursuant to Order 16 Rule 3(2) of the National Court Rules [i.e. first set of judicial review proceeding; see case: East New Britain Provincial Government v. Public Service Commission Chairman, Dr Phillip Kereme and Jack Kavie (2017) N6706].  Following the principles in Alex Timothy, once leave was granted, the applicants' originating summons was determined on the same day on 6 October 2016.  The applicants had also filed a notice of motion on 19 September 2016 in which they had sought interim injunctive relief.  The said notice of motion also returned before the Court on 6 October 2016.  The Court, having granted leave to apply for judicial review, had assumed jurisdiction to deal with the primary rights of the applicants, which was consistent with the principles held in Peter Makeng.  The Court went ahead and granted the interim orders on 6 October 2016.

15.	The applicants took out the minutes of the orders under a single Court Order.  By that, I mean orders that were granted in relation to the originating summons as well orders granted in relation to the interlocutory application after that the Court had assumed jurisdiction, both sets of orders were set out together under a single Court Order.  There is nothing wrong with the approach.  It is not uncommon for litigants to obtain such a single order under such circumstances.  I am mentioning that, however, in preparation of what I am about to say below in my judgment regarding the nature of the two (2) sets of orders.  But before I do so, let me firstly set out here the Court Order of 6 October 2016:

1.	Leave is granted to the plaintiff to apply for judicial review of the fourth respondent's decision of 23rd June 2016.
2.	The decision of the fourth respondent is stayed until further order.
3.	A further order restraining the first respondent from carrying out any activities on the disputed customary lands, Matatal (Block 16) and (Block 75) customary land in Kapit area, Lihir Island, New Ireland Province or receiving and benefiting from any royalty money paid by Lihir Gold Limited over the disputed lands until further order.
4.	A further order that the first respondent disclose any or all money/ies paid by Lihir Gold Limited and remit such monies paid so far and such royalties paid hereunder to the National Court Trust Account and to be held in Trust until further order.
5.	The plaintiff shall file and serve a notice of motion pursuant to Order 16, Rule 5 of the National Court Rules within 21 days from today.
6.	The matter is transferred to Kokopo National Court for directions hearing/inter-party hearing on a date and time to be fixed.
7.	Parties are at liberty to apply on three clear days notices.
8.	Time is abridged.

16.	Had the orders been taken out separately, for the leave application under the originating summons, the terms would be and I extract them from the original order as follows:

1.	Leave is granted to the plaintiff to apply for judicial review of the fourth respondent's decision of 23rd June 2016.
5.	The plaintiff shall file and serve a notice of motion pursuant to Order 16, Rule 5 of the National Court Rules within 21 days from today.
8.	Time is abridged.

17.	And as for the interim relief, which was sought in the notice of motion that was filed by the applicants on 19 September 2016, it would constitute of the following orders and again I extract them from the original order:

2.	The decision of the fourth respondent is stayed until further order.
3.	A further order restraining the first respondent from carrying out any activities on the disputed customary lands, Matatal (Block 16) and (Block 75) customary land in Kapit area, Lihir Island, New Ireland Province or receiving and benefiting from any royalty money paid by Lihir Gold Limited over the disputed lands until further order.
4.	A further order that the first respondent disclose any or all money/ies paid by Lihir Gold Limited and remit such monies paid so far and such royalties paid hereunder to the National Court Trust Account and to be held in Trust until further order.
6.	The matter is transferred to Kokopo National Court for directions hearing/inter-party hearing on a date and time to be fixed.
7.	Parties are at liberty to apply on three clear days notices.
8.	Time is abridged.

18.	I repeated term eight (8) of the original order in the two (2) generated sets of orders above because term eight (8) was a general order that applied to all the orders that were obtained by the applicants on 6 October 2016.  So following the principles in Peter Makeng and Alex Timothy, the six (6) interim orders in the latter generated order above were granted by the Court after it had assumed jurisdiction.  And they (i.e., the interim orders) were granted on the premise that the applicants would file the second set of proceeding, namely, the application for judicial review (see Order 16 Rule 5(1)], within the prescribed period.  Because of that and in my view, the six (6) interim orders were binding only for the duration of the prescribed period for applying for judicial review, which was the 21 days as ordered by the Court.  But because the applicants had failed to apply for judicial review within the prescribed period, the six (6) interim orders, in my view, ceased to exist or were discharged by close of business on 27 October 2016, which was the last day for the applicants to file their judicial review application.

19.	Can I grant the relief sought in the present notice of motion?  Can I order a discharge of the orders of 6 October 2016?  In my view, I would say "yes I can but with qualification."  Let me explain.  Terms 1, 5 and 8 of the original court order of 6 October 2016 were granted under the originating summons.  The orders therefore, in my view, were final and express.  The Court had ordered the applicants to file their application for judicial review [Order 16 Rule 5(1)] within 21 days from 6 October 2016.  Not only was time abridged but also term 5 of the Court Order expressly states that the applicants were to file the application for judicial review within 21 days from today, today meaning 6 October 2016.  They have not done that but that aside, the originating summons was determined on 6 October 2016.  A good comparison I think is like a plaintiff who has applied for leave to file his or her appeal out of time, to the National Court under section 231 of the District Courts Act Chapter No. 40.  The plaintiff would file an originating summons.  If the Court grants leave and allows the plaintiff to file his or her appeal within a prescribed timeframe, after the grant of the orders, the proceeding would be determined.  The plaintiff would then simply have to follow and file his or her appeal within the stipulated timeframe.  If the plaintiff fails to do so, he or she would be out of time.  The leave order, as I have said, would be final but also cannot continue forever.  It would be valid and limited to the prescribed timeframe set in the said final order.

20.	I note that I have indicated in my earlier ruling in judgment N6737 that the applicants may apply back to the Court under the originating summons.  The applicants have not done that since or before this present application by the first respondent.  The difficulty the applicants may face with such an approach is perhaps obvious.  But I will refrain from commenting further until perhaps sometime in the further when such a situation or issue presents itself to the Court.

21.	In regard to terms 2, 3, 4, 6, 7 and 8 of the court order of 6 October 2016, these were interim orders the Court had granted when it had assumed jurisdiction of the matter.  As explained above in my judgment, the orders were granted on the premise that the applicants would file their application for judicial review within the prescribed period.  Since that did not happen, the interim orders could not have survived after 27 October 2016.  There was no substantive proceeding (i.e., the second set of proceeding for judicial review which was to have been filed by the applicants under Order 16 Rule 5(1) of the National Court Rules) on foot on which these interim orders could have returned to.  Without an originating process on foot, no interim orders, not necessarily limited to judicial review proceedings but to proceedings generally, could survive indefinitely.  In this case, terms 2, 3, 4, 6, 7 and 8 of the court order of 6 October 2016 although were binding from 6 October 2016 to 27 October 2016, they ceased or they were discharged as of 28 October 2016.

22.	I will therefore grant the first respondent's notice of motion in principle or generally but on basis of my findings.

Cost

23	Cost is discretionary.  The first respondent seeks cost against the applicants.  I will order cost of this application against the applicants in favour of the first, third, fourth and fifth respondents on a party/party basis, which may be taxed if not agreed.

THE ORDERS OF THE COURT

24.     I make the following orders:

1.	The first respondent's notice of motion is granted in principle in that the Court Order of 6 October 2016 is discharged.

2.	For clarity, terms 1, 5 and 8 of the Court Order of 6 October 2016 were final orders.

3.	For clarity, terms 2, 3, 4, 6, 7, and 8 of the Court Order of 6 October 2016 were interlocutory or interim orders, which were discharged or had ceased at the close of business on 27 October 2016.

4.	The applicants shall pay the first, third, fourth and fifth respondents' costs of this application on a party/party basis which may be taxed if not agreed.

5.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________

Bristle Lawyers:	Lawyers for the First Respondent
Office of the Solicitor General: Lawyers for the Third, Fourth & Fifth Respondents