N7418

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 269 OF 2018

BETWEEN:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
First Plaintiff

AND:
3A COMPOSITES PNG LIMITED
Second Plaintiff

AND:
BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:
MALI IMMER KILIGIA INCORPORATED LAND GROUP
Third Defendant

AND:
PACIFIC REGION DEVELOPMENT LIMITED
Fourth Defendant

Kokopo: Anis J
2018: 2 & 21 August

JUDICIAL REVIEW – Application to dismiss judicial review – Order 16 Rule 13(13)(1) & (2) of the National Court Rules – dismissal of proceedings for want of compliance with Order 16 Rule 5(1) & (3) of the National Court Rules – originating summons and substantive notice of motion filed together – whether the substantive motion was also determined after leave was granted – no directions issued after grant of leave under Order 16 Rule 13(5) of the National Court Rules – whether there was compliance of Order 16 Rule 13(5)(1) of the National Court Rules

Facts

The third defendant applied to dismiss the proceeding.  It argued that the plaintiffs failed to file a substantive notice of motion for judicial review after leave was granted to them on 28 May 2018.  Consequently, the third Defendant said that there was no judicial review pending before the Court.

Held

1.	If a substantive application for judicial review is lodged or filed early, it cannot be moved or be regarded as valid unless or until leave to apply for judicial review has been granted.

2.	An applicant must however ensure not to confuse the two sets of judicial review proceedings, that is, the first which shall be commenced using an originating summons to apply for leave to apply for judicial review under Order 16 Rule 3(2) of the National Court Rules, and the second which shall be commenced using a notice of motion to apply for judicial review after leave is granted under Order 16 Rule 5(1) of the National Court Rules.

(Cases followed:  Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Alex Timothy v. Hon Francis Marus (2014) SC1403)

3.	The plaintiffs filed a substantive notice of motion on 30 April 2018 which was reckoned immediately after leave was granted on 28 May 2018.

4.	The third defendant’s amended notice of motion was dismissed with cost.

Cases cited:

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Alex Timothy v. Hon Francis Marus (2014) SC1403
East New Britain Provincial Government v. The Public Service Commission Chairman Dr Phillip Kereme and Jack Kavie (2017) N6706

Counsel:

Ms S. Kiene, for the First and Second Plaintiffs
Ms E. Takoboy, for the First and Second Defendants
Mr E. Paisat and Mr P. Yange, for Third Defendant
Ms J. Naphal, for the Fourth Defendant

RULING

21st August, 2018

1.	ANIS J:	The  third Defendant applied to dismiss the proceeding for want of compliance of Order 16 Rule 5(1) & (3) of the National Court Rules.  The application was contested.  I heard the application on 2 August 2018 and reserved my ruling to a date to be advised.

2.	This is my ruling.

MOTION

3.	The notice of motion was amended and filed on 13 July 2018.  Relief 2 and 3 were discarded by the third defendant at the start of the hearing.  Relief 1 is the only main relief the third defendant seeks.  It reads:

1.	Pursuant to Order 16 Rule 13, sub-rule 13(1) & (2) of the National Court Rules (NCR) or Rule 13 (1)(2)(a) & (b) of the Judicial Review (Amendment) Rules 2005 the proceedings be dismissed for failure to file a notice of motion under Order 16 rule 5(1) & (3) of the NCR to apply for Judicial Review within 21 days from grant of leave.
…..

RELEVANT RULES

4.	I set out Order 16 Rule 3(1) & (2), Rule 5(1), (2), (3) and (4), Rule 13(5) and Rule 13(13)(1) & (2) of the National Court Rules herein.

2.	Grant of leave to apply for judicial review. (UK. 53/3)

(1)	An application for judicial review shall not be made unless the leave of the Court has been obtained in accordance with this Rule.
(2)	An application for leave must be made by originating summons ex parte to the Court…..

5.	Mode of applying for judicial review. (UK. 53/5)

(1)	Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.
(2)	The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(3)	Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.
(4)	Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.
…..

13(5).	Directions to be issued at time of grant of leave.
Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following: —
(1)	Filing of Notice of Motion and supporting affidavits under Order 16 rule 5 (1).
…..

13(13)	Other matters.
(1)	Motions.
All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.
(2)	Summary disposal.
a.	Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
b.	The Court may summarily determine a matter:
(a)	on application by a party; or
(b)	on the Court’s own initiative; or
(c)	upon referral by the Registrar in accordance with the procedure set out in (3) below.
…..

ISSUE

5.	The main issue is this.  Whether the plaintiffs have failed to file their substantive notice of motion for judicial review as required under Order 16 Rule 5(1) & (3) of the National Court Rules.

RELEVANT BACKGROUND

6.	The plaintiffs filed their originating summons seeking leave to apply for judicial review on 30 April 2018.  On 28 May 2018, His Honour Justice Higgins granted leave to the plaintiffs to apply for judicial review.  It is apparent from the Court file and from submissions of the parties that after leave was granted, that His Honour also partly dealt with the plaintiffs’ pending notice of motion, that is, the notice of motion filed on 30 April 2018.

7.	Let me elaborate.  Relief 5 of the said notice of motion had sought interim injunction against the fourth defendant.  His Honour Justice Higgins, after granting leave to the plaintiffs to apply for judicial review under the originating summons, and upon request by the plaintiffs, dealt with relief 5.  And in so doing, His Honour granted it with interim injunction being placed against the fourth defendant over its dealings on the land that is in question.  I note that the court file notation concerning the Court’s order of 28 May 2018 later became an issue, but clarity had been sought by the parties, and the orders were subsequently rectified by the Court on 4 June 2018 to reflect on what the Court had originally ordered on 28 May 2018.  The interim injunction is currently in place.

NO SUBSTANTIVE MOTION FILED?

8.	The third defendant alleges in its amended notice of motion that up to this day, the plaintiffs have not, after leave had been granted, filed a substantive notice of motion for judicial review within 21 days.  So the question I had which I had raised with the parties at the hearing was whether the said claim was true.  This then led to the revelation of and presentation of submissions regarding, the plaintiffs’ notice of motion that was filed on 30 April 2018.  

9.	Let me have a closer look at the notice of motion.  It seeks the following relief:

1.	Leave of this Honourable Court be granted to the First Plaintiff pursuant to Order 16 Rule 3 of the National Court Rules to apply for judicial review of the decision of the First Defendant of 20 December 2017 to grant a Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL to the Third Defendant, Mali Immer Kiligia Incorporated Land Group over the land described as Portion 808, Putput, East New Britain Province.
2.	An orderin the nature of Certiorari to remove into this Honourable Court and quash the decision of the Registrar of Titles to grant a Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL over the land described as Portion 808, Putput, East New Britain Province dated 20 December 2017.
3.	An order in the nature of Prohibition to restrain the First, Second, Third and Fourth Defendants or any person whatsoever from dealing with the land described Certificate of Title Portion 808C Volume 37 Folio 147, Milinch of KOKOPO, Fourmil of RABAUL, formerly described as Portion 808, Putput, East New Britain Province in any manner.
4.	An order in the nature of Mandamus to compel the First Defendant, the Registrar of Titles to register the land described as Portion 808, Putput, East New Britain Province in the name of the First Plaintiff herein.
5.	An order pursuant to Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the Court that an interlocutory injunction be issued to restrain the Fourth Defendant, Pacific Region Development Ltd and its officers, servants, employees, agents or any other person howsoever associated with it, from entering Portion 808, Putput, East New Britain Province and or from undertaking any work or other activity at all on or within the land pending the determination of this judicial review or further order of the Court.
6.	A Declaration that the entire area comprising of the land described as Portion 808, Putput, East New Britain Province is the property of the First Plaintiff as this described land comprises part of the Putput Freehold Land, the subject of a contract of sale in 1951 between the First Plaintiff formerly known as the Sacred Heart (New Britain) Property Trust from John Joseph Gilmore and Flora Doris Gilmore and no person or entity whatsoever can be granted a State Lease over any of the Land other than the First Plaintiff.
7.	Such further orders as this Honourable Court deems fit pursuant to Section 155(4) of the Constitution.
8.	Costs of these proceedings.
9.	Any other orders this Honourable Court deems fit.

10.	It is obvious, in my view, that this notice of motion is the substantive application for judicial review.  Leave to apply for judicial review had been sought separately as a single relief in the originating summons.  So, in my view, the first relief in the notice of motion would have no basis.  I would add that it should not have been included as a relief in the notice of motion (see Order 16 Rule 3(2)).  My second remark is this.  The 5th relief in the notice of motion was dealt with as explained above in my decision.  Other than these, the notice of motion, as I have said, is substantive.

11.	Despite the Court’s finding that the plaintiffs’ notice of motion is the substantive judicial review application, it is not end.  The defendants also argue that since the notice of motion was filed at the first stage of the judicial review proceeding and since that proceeding has ended after the grant of leave on 28 May 2018, it (i.e., the notice of motion of 30 April 2018) could not have existed or survived thereafter; that the plaintiffs were supposed to file a new notice of motion as required under Order 16 Rule 5 (1) and (3) of the National Court Rules; that since the plaintiffs have not filed any new motion within 21 days from the time leave was granted, that there is no judicial review application pending.  Consequently, the defendants submit that the Court must dismiss the proceeding.

12.	Firstly, I note that this issue does not arise directly out of the relief that is sought in the third defendant’s notice of motion.  It was however raised by the defendants in their submissions.  “So, should I entertain the issue?”  I ask myself.  I would answer, “yes,” to the question.  It is obviously a relevant legal question.  My findings are as follows:  Firstly, I concur with the defendants’ submissions that there are two (2) separate sets of proceedings in a judicial review.  The first set is commenced by filing an originating summons whereby an applicant seeks leave to apply for judicial review under Order 16 Rule 3(2) of the National Court Rules.  The second set of proceeding is commenced, subject to leave being granted, by filing a notice of motion for judicial review under Order 16 Rule 5(1) of the National Court Rules.  Refer to cases:  Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Alex Timothy v. Hon Francis Marus (2014) SC1403; East New Britain Provincial Government v. The Public Service Commission Chairman Dr Phillip Kereme and Jack Kavie (2017) N6706.  Let me make particular mention of this case, East New Britain Provincial Government v. The Public Service Commission Chairman Dr Phillip Kereme and Jack Kavie (supra).  I stated therein at paragraph 20 and I quote:

20.	Let me illustrate.  Judicial review has two sets of proceedings.  The first set of proceeding is to seek leave and the vehicle or platform for that is an originating summons [Order 16 Rule 3(2)].  The second set of proceeding is to seek judicial review and the vehicle or platform for that is a notice of motion [Order 16 Rule 5(1)].  The two (2) documents (i.e., originating summons and notice of motion) under the two (2) sets of proceedings will bear the same court file number.  I think this is where most confusion arises between counsel and litigants.  They think or are under the impression that because the Court file numbers are the same, the two sets of judicial review proceedings (i.e., first commenced by originating summons and second by notice of motion) is actually one Court proceeding that is divided into two stages.  That understanding, in my opinion, is wrong.  In my view, the correct understanding should be this.  An originating summons and a substantive notice of motion filed in a judicial review are related but are two distinct originating processes.  They are linked together by the provisions under Order 16 of the National Court Rules.  The Supreme Court in Alex Timothy v. Hon Francis Marus (supra) held on point at paragraph 17 of its judgment.  I quote in part where it said, 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. (Bold lettering is mine).

13.	So with that clarity, I turn my attention to the present matter.  I have already reached my finding concerning the nature of the plaintiffs’ notice of motion filed on 30 April 2018, that is, that it is a substantive notice of motion for judicial review.  In the present case, the notice of motion was filed together with the origination summons on 30 April 2018.  Obviously, as at the date when it was filed, the plaintiffs did not have a right of review.  The originating summons was the relevant document that had commenced the first set of the judicial review proceeding.  After leave to apply for judicial review was granted on 28 May 2018, the first set of the judicial review was then determined.  The substantive notice of motion filed on 30 April 2018 was not moved in Court until after leave had been granted.  It was not an interlocutory application so, in my view, it could not have been regarded or be reckoned as filed under the originating summons.  In Court, I recall stating that had the plaintiffs only filed one document namely the notice of motion to obtain leave without filing a separate originating summons for that purpose, that I would have had no difficulty in dismissing the proceeding.  I maintain that position.  However, I also note that I had distinguished that scenario from the present case.  Let me explain.  In the present case, the plaintiffs, despite also filing the substantive application for judicial review together with their originating summons, have treated the two documents separately.  As for the originating summons, the plaintiffs’ only relief sought therein was for leave to apply for judicial review.  The originating summons returned to Court on 28 May 2018 and the Court dealt with it.  After that, the plaintiffs moved the Court in relation to the substantive notice of motion that was filed on 30 April 2018, and the Court, as I have explained above, partly dealt with it, that is, when it granted the interim injunction which was sought under as relief 5 to the notice of motion.

14.	Let me also say this.  The parties did not assist in providing the transcript of the Court hearing of 28 May 2018.  As such, apart from hearing submissions from the parties on what had or may have transpired at the leave hearing, reasonable assumptions had to be drawn based on the actions of the leave Court.  Firstly, I note that the leave Court had recognised or had treated the plaintiffs’ substantive notice of motion filed on 30 April 2018, as a notice of motion that was properly before it after the grant of leave.  The fact that the Court had partly heard and granted the 5th relief (i.e., interim injunction) in the notice of motion itself is, in my view, proof of that.  That being the case and, in my view, no direction would have been required by the Court specifically under Order 16 Rule 13(5)(1) of the National Court Rules, that is, for a further substantive notice of motion to be filed.  

15.	In conclusion, I find that the plaintiffs have filed a substantive judicial review application.  I find that this judicial review is at its second stage of proceeding.  I find the plaintiffs’ notice of motion filed on 30 April 2018 as filed or reckoned to be filed for the purpose of Order 16 Rule 5(1) of the National Court Rules.

SUMMARY

16.	In regard to the main issue, whether the plaintiffs have failed to file their substantive notice of motion for judicial review as required under Order 16 Rule 5(1) & (3) of the National Court Rules, my answer is, “no, the plaintiffs have not failed to file their substantive notice of motion for judicial review.  The plaintiffs’ notice of motion filed on 30 April 2018 is the substantive judicial review application.  It was reckoned or regarded as such immediately after the leave Court had granted leave to the plaintiffs to apply for judicial review on 28 May 2018.”

COST

17.	Cost is discretionary.  I will order cost to follow the event.  Cost is therefore awarded against the third defendant in favour of the plaintiffs on a party/party basis which may be taxed if not agreed.  

THE ORDERS OF THE COURT

1.	The third defendant’s amended notice of motion filed on 13th July 2018 is refused.
2.	The third defendant shall pay the plaintiffs’ costs for defending the notice of motion, on a party/party basis which may be taxed if not agreed.
3.	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.

_____________________________________________________________
South Pacific Legal Services: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the First and Second Defendants
Daniels & Associates Lawyers: Lawyers for the Third Defendant
Bradshaw Lawyers: Lawyers for the Fourth Defendant