N7502

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 20 OF 2018

BETWEEN
DAKI MAO
Applicant

AND
HON. GINSON SAONU – as Governor for Morobe Province and
Chairman of Provincial Executive Council of Morobe Province
First Respondent

AND
PROVINCIAL EXECUTIVE COUNCIL OF MOROBE PROVINCE
Second Respondent

AND
MOROBE PROVINCIAL GOVERNMENT
Third Respondent

AND
DON SAWONG, KARO GAMOGA AND MEMBERS
of the Kisim Bek Morobe Audit Committee 2012 - 2017
Fourth Respondent

Lae:   Murray, J
2018:  1st October

JUDICIAL REVIEW – Applicant filed Notice of Motion instituting substantive review application at the same time of filing application for leave – whether this is permitted by the Rules – Order 16 Rule 3 & 5 of the National Court Rules.

JUDICIAL REVIEW – Practice and Procedure – Judicial Review process under the Rules Order 16 of the National Court Rules and as found in Makeng vs. Timbers (PNG) Limited & Others (2008) N3317 and approved in Kalinoe vs. Paul Paraka (2014) SC1366 – Notice of Motion for Substantive Review – when to file – Order 16 Rule 3 & 5 of the National Court Rules – Notice of Motion filed before grant of leave is defective and struck out – No Notice of Motion filed and listed for hearing within 21 days, after grant of leave – Application incompetent. 

Cases Cited:

Kalinoe vs. Paul Paraka (2014) SC1366
Makeng vs. Timbers (PNG) Limited & Others (2008) N3317

Counsel:

Mr. K. Aisi, for the Applicant
Ms. S. Maliaki, for the First, Second & Third Respondents
Ms. P. Sawanga, for the Fourth Respondent

DECISION
1st October, 2018

1.	MURRAY J:	 Before me on 30th July 2018, were two (2) motions.  The one filed first in time is by the Applicant.  His motion was filed on 28th June 2018, essentially asking this Court to issue a summons to a number of persons to come before this Court to give evidence and further for a summons to order the production of certain documents.

2.	In support of his motion the Applicant relied on the Affidavit of his lawyer, 
Mr. Kenneth Aisi sworn 27th June 2018 and filed 28th June 2018.

3.	The other motion is by the Fourth Respondent.  The Fourth Respondent is comprised of retired Judge, Don Sawong, Karo Gamoga and Members of the Kisim Bek Audit Committee 2012 – 2017.  Their motion was filed on 4th July 2018 seeking in essence a dismissal of these proceedings.

4.	The motion by the Fourth Respondent is supported by two (2) Affidavits.
The first affidavit is by Mr. Karo Gamoga sworn and filed 4th July 2018, and the other affidavit is by Retired Judge Don Sawong sworn and filed 5th July 2018.

5.	At the commencement of the hearing, after hearing submissions by both Mr. Aisi for the Applicant and Ms. Sawanga of counsel for the Respondent on whose motion should be heard first, I ruled in favour of Ms. Sawanga’s argument and proceeded to hear the Fourth Respondent’s motion first.  As I heard the Fourth Respondent’s motion first, I will consider the Fourth Respondent’s applications set out in their motion first.  If I find or decide in favour of the Fourth Respondent’s motion, there would be no need for me to consider the Applicant’s motion.  But if I decide against the Fourth Respondent’s motion then I will proceed to consider the Applicant’s motion.

Background
	
6.	The Applicant, Daki Mao, instituted this proceeding by filing an Originating Summons on 22nd January 2018, together with the following documents:

(1)	Statement pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules;
(2)	Verifying affidavit pursuant to Order 16 Rule 3 (2) (a) of the National Court Rules; 
(3)	Notice of Motion;
(4)	Affidavit of Daki Mao sworn 19th January 2018;
(5)	Notice to Secretary for Justice pursuant to Order 16 Rule 3 (3) of the National Court Rules; and
(6)	Undertaking as to Damages.

7.	In his Originating Summons, he sought leave to review two (2) decisions.  One by the First Respondent dated 31st August 2017 and the other by the Second Respondent dated 23rd September 2017.  The said decisions established the Fourth Respondent and appointed its members.

8.	The Applicant moved his application for leave on 23rd March 2018 and on 27th April 2018, this Court granted leave to the Applicant to apply for judicial review.

9.	Following the grant of leave for judicial review, the Applicant filed on 4th May 2018 a Notice of Motion.  In that motion the Applicant asked this Court to restrain the Fourth Respondent for publishing its report until the determination of this proceeding.

The application was supported by the affidavit of the Applicant himself sworn 19th January 2018 and filed on 22nd January 2018 and further two (2) affidavits of the Applicant.
The first affidavit was the one that was filed on 22nd January 2018 and the other was an affidavit sworn on 2nd May 2018 and filed on 4th May 2018.

10.	At the hearing of that application on 18th June 2018, an objection by the Fourth Respondent was raised against the use of the Applicant’s affidavits on the basis that the affidavits relied upon or sought to be relied upon by the Applicant contained hearsay, irrelevant and confidential matters which the Applicant was not privy to.  A decision on this objection was made the next day wherein this Court upheld the Fourth Respondent’s objection and struck out paragraphs 3 & 5 of the Applicant’s affidavit filed 4th May 2018 and paragraphs 1, 2 7, 8, 9 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, & 26 of the Applicant’s affidavit filed 22nd January 2018.

11.	That resulted in the Applicant having no evidence that could be relied on in support of the application.  Consequently the Applicant’s Notice of Motion filed 4th May 2018 was withdrawn with leave of this Court, and he was directed to file and serve all his affidavits that he would rely on in the substantive review hearing by or before 26th June 2018.   At the date of hearing the application the subject of this ruling, the Applicant had not complied with the direction to file and serve his affidavits.

Fourth Respondent’s Notice of Motion

12.	The Fourth Respondent’s Notice of Motion contained four (4) applications.  The first two (2) applications seeks a dismissal of the proceedings.  The second application is being sought in the alternative to the first application.  The third application seeks an order for dismissal of the Applicant’s motion filed 22nd January 2018 and the fourth seeks an order for costs on a solicitor client basis.  If I rule in favour of the first application in their Notice of Motion, it will not be necessary for me to consider the second application.  As for the third application in the Notice of Motion, I am of the view that it would be resolved if the first application is determined in the affirmative.

13.	Moving now to consider and deal with the first application by the Fourth Respondent.

Dismissal of the proceedings for non compliance with Order 16 Rule 5 (1) & (4) of the National Court Rules.

14.	It is the Fourth Respondent’s submission that the proceedings filed herein should be dismissed for being incompetent, in that the Applicant is required under Order 16 Rule 5 (1) & (4) of the National Court Rules to file a Notice of Motion and supporting affidavit for the substantive hearing for judicial review after the grant of leave for the judicial review on 27th April 2018, but has failed to do that. What the applicant did was, he filed his Notice of Motion for Substantive Review before grant of leave.  This is not permitted by Order 16 Rule 5 (1).

15.	The First, Second and Third Respondents support the submission by the Fourth Respondent.

16.	The Applicant contends that the application by the Fourth Respondent should be dismissed as:-

(i)	The application of Order 16 Rule 5 (1) of the National Court Rules is 	
misconceived in that the rule does not require that the Notice of Motion be filed after leave has been granted.  All this Rule is saying is that, a motion for the substantive review should be moved after leave has been granted.  Thus the Applicant in this case has complied with Order 16 Rule 5 (1) of the National Court Rules. He has filed a motion and the hearing of that depended on the leave application. As leave has been granted, the Substantive Review has to be set down for hearing.

(ii)	As for Order 16 Rule 5 (4) of the National Court Rules, it is irrelevant because this matter has progressed.  Therefore the 21 days requirement to have the matter set down for substantive hearing is not an issue here.  

(iii)	It is in the interest of justice that the Fourth Respondent’s application be dismissed.

17.	The main issue here is whether an Applicant applying for judicial review under Order 16 of the National Court Rules can file an application for the judicial review before leave is granted.

18.	Order 16 Rule 5 (1) & (4) of the National Court Rules read:
	
	“5.	Mode of applying for judicial review.

(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)		……………………………………. .

(3)		……………………………………. .

(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.

(5)		…………………………………… .

(6)	…………………………………… .

19.		Also relevant for purpose of this application is Order 16 Rule 3 (2).  This provision reads:

	“3.	Grant of leave to apply for judicial review.

(1)		…………………………………………. .

(2)		An application for leave must be made by originating summons ex parte to the Court, except in vacation when it may be made to a   Judge in chambers, and must be supported –
	
(a)		by a statement, setting out the name and description of the 	applicant, the relief sought and the grounds on which it is 	sought; and (emphasis mine)

(b)		by affidavit, to be filed before the application is made, 	verifying the facts relied on.” (emphasis mine)

20.		The procedure for judicial review application under Order 16 of the National Court Rules in my view has been settled.

21.		In Makeng vs. Timbers (PNG) Limited & Others (2008) N3317 the Court per Deputy Chief Justice Injia as he then was, at paragraph 37 of his judgment set out the procedure for an application for leave for judicial review as follows:  

“In terms of the procedure for grant of leave for judicial review an application for leave is made by Originating Summons.  The Originating Summons should not plead any other relief.  It should simply seek leave to apply for judicial review of the subject decision which should be particularized.  A motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage.  The current practice of many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a motion seeking the same relief as the Originating Summons should cease as it only confuses the procedure and it is inconsistent with the provisions of Order 16 Rule 3 and Order 16 Rule 5 (2)”.

22.		Then at paragraph 41 of the judgment, his honour went on to say:

“Upon grant of leave, a Notice of Motion seeking substantive relief under Order 16 Rule 5 (1) should be filed and served.”

23.		Then the Supreme Court in Kalinoe vs. Paul Paraka, SC1366  in 2014, approved with clarification the procedure as set out in Makeng vs. Timbers (supra).  The Supreme Court reiterated the process at paragraph 37 of the Judgment, as follows:

           “(1)	An Originating Summons is filed seeking only one relief, namely leave for judicial review together with a statement as described by Order 16 Rule 3 (2)(a) and an affidavit verifying the facts relied by the Applicants. (emphases mine)

(2)	Copies of the documents under sub-rule 1 above should then be served on 	Secretary for Justice, not less than two (2) days before the dates set for its 	hearing (Order 16 Rule 3).

(3)	If leave for judicial review is granted a Notice of Motion seeking judicial review must then be filed and served in accordance with the provision of Order 16 Rule 5 (2) and proceed to a hearing in accordance with any due compliance of 	the provisions of Rule 5 (5). (emphases mine)

(4)	If any urgent or interim relief is also sought this should be included in a Notice of Motion and maybe argued earlier if need be or otherwise in accordance with 	motion’s rules prior to a hearing and determination of the substantive review.  

(5)	After attending to any present urgent or interim matter, the substantive 	review application should proceed to a hearing without delay, a date for 	which, should be fixed within 21 days from the grant of leave.” (emphases mine) 

24.		With that Supreme Court decision, it leaves no room for doubt as to what the	
procedures are for an application for judicial review under Order 16.  More importantly, it is now clear that, a Notice of Motion seeking judicial review can only be filed after leave is granted.  

25.		The Applicant in the present case filed his Notice of Motion seeking Judicial Review on 22nd January 2018 together with the Originating Summons seeking leave for judicial review.  The argument by the Applicant in defence of his action in filing the Notice of Motion at the same time with the Originating Summons is that there is no specific mention in Order 16 Rule 1 (5) of the National Court Rules that says that a Notice of Motion shall be filed after leave as been granted.  Therefore by filing the motion as he has done, he has complied with the Rules under Order 16.  I find this argument misleading in that when one reads the provision of Order 16 Rule 5 (1) which is in mandatory terms, together with the provision of Order 16 Rule 3 (2), it is very clear that a Notice of Motion cannot be filed at the same time an application for leave is filed, nor can it be filed before leave is granted.  The only documents that are to be filed at the commencement of the judicial review proceedings are those as set out in Order 16 Rule 3 (2) of the National Court Rules.

26.		I, not only find the argument by the Applicant misleading but in my view it is also mischievous in that, a Supreme Court has confirmed what the procedures are for an application for judicial review under Order 16.  Amongst other things, it stated a Notice of Motion for judicial review can only be filed after leave is granted but yet the Applicant has made submissions contrary to that.  In the circumstances, the Notice of Motion filed by the Applicant on 22nd January 2018 prior to the grant of leave on that basis, is clearly defective and thus struck out. The effect of this is that the Applicant has not filed a motion for Judicial Review as required, following grant of leave on 27th April 2018. The need to file a Notice of Motion for the Judicial Review after grant of leave and have it listed for hearing within 21 days from grant of leave are mandatory requirement and therefore a crucial consideration on the issue of the competency of the Judicial Review application. Therefore if the Applicant has not complied with Order 16 Rule 3 (1) & (4) of the Rules, the Judicial Application is incompetent.

27.		Apart from the main argument by the applicant that the Fourth Respondent’s application be dismissed which has been addressed, the Applicant has also submitted that, in the event that this Court considers the issue has been addressed by the Supreme Court in Kalinoe case and favours the grant of the Fourth Respondent’s application, then this Court should in the exercise of its discretionary powers either allow the Applicant to move on the motion already filed or grant leave to the Applicant to extend time to file a fresh motion for juridical review.

28.		In response to that argument the Fourth Respondent through their counsel argued firstly that there is no proper application before this Court for an extension of time to file the motion and secondly, this Court does not have any discretion given that the Supreme Court in Kalinoe case has settled the position with respect to the procedures.

29.		I concur with the submission by the Fourth Respondent on those aspects and reject the argument by the Applicant. I also reject the submission by the Applicant to allow him to move on the motion filed 22nd January 2018 on the basis that I have already made a finding that, the motion filed 22nd January 2018 is defective and has been struck out.  The Applicant has not filed a motion as required.

30.		For the above reasons, I am satisfied that the proceedings filed herein must be dismissed on the basis that it is incompetent in that the Applicant has not complied with Order 16 Rule 5 (1) & (4) of the National Court Rules.  Given this, except for the application for costs, it is not necessary to consider the other applications by the Fourth Respondent, nor the application by the Applicant.

Costs

31.		The last application by Fourth Respondent is for costs on a solicitor-client basis.

32.		The Applicant, in opposing this application for costs argued, he instituted this proceeding because he has a real interest to pursue and as such this Court should apply discretion to its costs on a party-party basis.

33.		I have had regard to the submissions by the Fourth Respondent which has extensively cited a number of decisions in support of this application and I concur with the Fourth Respondent’s submission that the Applicant did mislead this Court at the Leave Hearing when he relied on matters that were hearsay or which, he himself was not privy to, which were later struck out on an application by the Fourth Respondent.  The effect of that was that the Applicant had nothing to sustain the proceeding.  In my view, the Applicant who was represented by counsel ought to have considered that the Application could not be maintained without any evidence at all by the Applicant and as such he could have properly advised the Applicant and withdraw the proceedings. But that did not happen.  Instead, the Applicant maintained this proceeding which has now been dismissed.

34.	For those reasons, I am satisfied that costs should be awarded as sought.  It is clear in my mind that the conduct of the Applicant or his lawyer is such that it has caused the Fourth Respondent to incur unnecessary costs.   

35.		Orders

(a)	The Proceeding is dismissed as being incompetent.

	   (b)	The Applicant shall pay the cost of an incidental to these proceedings to be taxed if not agreed to the Fourth Respondent only on a solicitor-client basis and to the First, Second and Third Respondents on a party/party basis.

_______________________________________________________________
Kelly Naru Lawyers:   Lawyer for the Applicant				 
Solicitor General:        Lawyer for First, Second & Third Respondents	 		
Gamoga & Co. Lawyers:   Lawyer for the Fourth Respondent