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Nobetau v Bougainvill Executive Council [2020] PGNC 176; N8395 (22 June 2020)

N8395

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 639 of 2019

JOESPH NOBETAU
Plaintiff

V
BOUGAINVILL EXECUTIVE COUNCIL
First Defendant

And
COLONEL THOMAS RAIVET
Second Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2020: 22^nd June

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of motion – Order 16 Rule 6 (2) Order 8 Rules 50 (1) 55 (1) 56 (1) (a) NCR – Leave to amend statement Order 16 rule 3 (2) – no prejudice – leave to file further affidavits – merits of substantial matter not changed – leave to amend granted – cost follow event.

Cases Cited

Magiri v Papua New Guinea Forest Authority [2009] PGNC 64; N3670
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Ponau v Teaching Service Commission Disciplinary Committee [2006] PGNC 58; N3059

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Tzen Pacific Limited v Kanawi Pouru [2013] PGNC 307; N5156
Counsel:

G. Salika, for Plaintiff
J. Haiara, for First & Second Defendants
N. White, for Third Defendant

RULING

22^nd June, 2020

1. MIVIRI, J: This is the ruling on the motion of the plaintiff filed the 12^th March 2020 seeking leave to amend the substantive notice of motion for Judicial review with the insertion of damages to be calculated from 23^rd August 2019 to the date of Judgement.
   
2. Reliance is placed on Order 16 Rule 6 (2), Order 8 Rules 50 (1) 55 (1) 56 (1) (a) National Court Rules, “the Rules”. Together with section 185 of the Constitution and Order 12 Rule 1 to order so as to give effect as the nature of the case requires. In essence, this is the authority for the court to see out the pray of the plaintiff. It is the jurisdictional basis from which the court draws to make orders sought. Here leave is sought to amend the substantive notice of motion for judicial review. Leave was granted by this court on the 14^th October 2019 for Judicial review.
   
3. It is primary to plead the source of the decision against which process has taken place in which the plaintiff has been affected. Prima facie the process taken to arrive at the decision is questioned. This is the essence of Judicial review in this regard, there is nothing material in the amended notice of motion for judicial review sought prejudicial to the defence. In any case this will be cured liberty given to the defendant to file affidavits to rely upon. And in this regard this court sets out well in this: Magiri v Papua New Guinea Forest Authority [2009] PGNC 64; N3670 (6 March 2009).
   
4. Even the contention and authority put by the defendant of Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) is in this regard and gives effect to what the applicant/plaintiff seeks. Damages has been awarded as a result of not observing process and procedure leading to plaintiff being affected as a result. It is not wrong to give effect to that and to bring notice to the defendants in this regard. The amendment will settle the issue to its finality. It arises from the action and naturally must be seen out together in the dispute.
   
5. The objections by the first and second defendants are overruled. Time has flown, events have overtaken, it is necessary to be able to look at the law in this regard set on numerous occasion one such pointed out by counsel is Ponau v Teaching Service Commission Disciplinary Committee [2006] PGNC 58; N3059 (26 May 2006) reiterating Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). Justice will not be served given and the facts and circumstances are not as in Tzen Pacific Limited v Kanawi Pouru [2013] PGNC 307; N5156 (25 April 2013). This is not a material change of the pleadings and the defendants are not seriously handicapped or prejudiced in their defence but is quite the contrary.
   
6. The notice of motion of the plaintiff is upheld and is granted Leave to amend in the terms of the Notice of motion schedule 2. The first and second grounds are uncontested so are granted.
   
7. Counsel will take out the orders for the endorsement of the court. The matter will revert to the next directions date Monday 3^rd August 2020 at 9.30am for a trial date to be allocated.
   
8. Cost will follow the event.

Orders Accordingly.

__________________________________________________________________

Young and Williams Lawyers: Lawyer for the Plaintiff/Applicant

Haiara’s Legal Practice: Lawyer for the Defendant

Office of the Solicitor General: Lawyer for the Third Defendant