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Blaxcell Ltd v Pok [2022] PGNC 523; N10029 (2 November 2022)

N10029

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 888 OF 2017

BLAXCELL LIMITED
Plaintiff

V
HON. DR. FABIAN POK MP, MINISTOR FOR PETROLEUM AND ENERGY
First Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2022: 1^st October, 2^nd November

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 13 (13)(12)NCR – Adjournment – Application For – Must Demonstrate Refusal to Adjourn will result in Prejudice – Evidence Supporting – Discretion to Grant – Whether Proper Grounds to Adjourn – Commercial Discussion – Evidence Relied Self Serving – Evidence Filed Against – Prejudice if Adjournment – Balance Not Discharged – Motion Refused – Cost Follow Event.

Cases Cited:

Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126

Counsel:

L.Wangi, for Plaintiff.
G. Garo & C. Kalu, for the Defendants.

RULING

2^nd November, 2022

1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of the 31^st October 2022 whereby he seeks pursuant to Order 16 Rule 13 (12) of the National Court Rules for an adjournment of the proceedings for six months so that Commercial discussion can take place between the parties. And costs to be in the cause.
   
2. The motion is supported by affidavit of Luke Wangi sworn and filed of the 26^th October 2022. With a supporting affidavit of service of Buana Pole process server. The affidavit of Luke Wangi is that he is a lawyer employed by the firm Leahy Lewin Lowing Sullivan Lawyers. And he has carriage of the matter. On the 10^th October 2022 the matter was adjourned to Monday 31^st October 2022 for Pre-Hearing conference. Three weeks was allowed by this Court on that day to allow parties especially the plaintiff to compile the review book following Order 16 Rule 7 (1) of the Rules and circulate to the defendants for their views before parties endorsing it and filing it.
   
3. On the 11^th October 2022 Luke Wangi sent an email update to the Client updating on the outcome of the hearing on the 10^th October 2022. And also received a telephone call from the client instructing to seek an adjournment of six months with the reason being; “the plaintiff is in commercial discussions with a state owned entity which may obviate the need for a trial in this proceeding. An adjournment will allow these discussions to continue to their conclusion. We are informed that the Minister for Petroleum and Energy is aware of the aforementioned commercial discussions and has indicated his consent to this adjournment.” That email conversation is annexure “A” but it does not contain the instructions of the client, but a proposition by the deponent Lawyer for an adjournment for six months. And he is specific that he awaits instruction of the client on the subject adjournment. He concludes that he is happy to discuss it with the client. This is not the same as the client instructing that witness seek an adjournment of six months from the Court on the subject. And this clear from the email; “We await instructions regarding the proposed six (6) months adjournment so we can inform the Defendant’s Lawyers accordingly. Please also send us correspondences if any pertaining to the ongoing discussion between the plaintiff and the State Company in relation to the PPLs for our review. Happy to discuss”
   
4. This annexure including the following of annexure “B”; “C”; “D” do not confirm what is deposed to by the lawyer witness. It does extend that indeed there is instruction by the client for the adjournment of the case for a period of six (6) months because of the discussion of the client with a State entity. What is contained is self-serving assertions of the Client instructing that the matter is adjourned for six months. There is no independent email depicting as originating from the Client stating that he instructs that adjournment be sought for six months. And accompanied by papers from the State Entity of that fact that they are in discussion with the plaintiff on a commercial nature and want that adjournment to facilitate that fact.
   
5. If it is indeed what he assert that is not the affidavit of David Manau sworn of the 28^th October 2022 filed the 31^st October 2022 by the defendants. He is the Secretary and the Departmental Head of the Department of Petroleum and Energy. He is versed that the plaintiff instituted this action on 17^th November 2017. And leave for Judicial review was granted on the 24^th November 2017. He is aware of the directions hearing and was advised by his lawyers that on the 10^th October 2022 the matter was adjourned to the 31^st October 2022 at 9.30am for Prehearing conference. On the 14^th October 2022 he received an email from his lawyer on instructions on an adjournment sought by the Plaintiff’s lawyers to make.
   
6. “I made enquiries and finding that the Minister had not given any indication of consent to any adjournment of the matter suggested, on 20^th October 2022 I emailed Mr Garo instructing that the Minister had not given instructions to adjourn. Since our instructions have been to progress the matter to hearing I also instructed to proceed with the matter as soon as possible with no delays.”
   

Annexure “A” is independent verification of the conversation with the lawyer and the witness. And in no uncertain terms is the except that the Minister has not instructed to adjourn the matter because of a commercial discussion with a state entity portrayed by the applicant here. It is clear that the Minister has not instructed his departmental head to concede an adjournment because he is in the middle of commercial discussions with the plaintiff. And there is no disclosure as to who this particular State entity is so that it is verified that indeed that entity on behalf of the State is in commercial discussions with the Plaintiff. A matter of National Interest is not swept up and out by emails but with papers accompanying. Especially where it involves projects of magnitude that will generate money and other resources for the country. Here there would be papers evidencing from the Departmental Secretary David Manau. It is not there and was not there because it is not verified by the Client through the lawyer.

7. Assessing it logical and with common sense leaves no truth in the account that the Lawyer has tried to paint to seek adjournment. He has come on his own unaccounted by the other side who has as very much involved in the matter. But who have not voiced what he states. It means there is no truth to his account. It means the evidence for it is worth is concocted with no fibre of truth in it and must be rejected on all fours following Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). The aggregate is that this adjournment sought will not accord harmony with PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) because it does not demonstrate that refusal to adjourn will cause prejudice. Because the evidence supporting is self-serving without an iota of truth in it. It has simply tried to procrastinate a matter that must see where Justice lies for all parties. The defendant have been unnecessarily drawn into an application that was bound to fail. Because the evidence is not to advance a centimetre of the application. It is refused in all and the matter is now fixed to the Monday 07^th November 2022 at Directions for prehearing conference and a trial date to be allocated from there for the hearing of the matter.
   
8. The cost of this proceeding this hearing will be borne out by the applicant on a Solicitor Client basis because of the reasons set out above. Unnecessary time has been meted out to a matter that would have simply got a trial date and hearing set to expedite. For that reason the applicant will pay the costs on a Solicitor Client basis evidence on payment to be filed into Court before the directions hearing set Monday 07^th November 2022.
   
9. Accordingly, the formal orders of the court are:
   
   • (1) The Notice of Motion of the applicant pursuant to Order 16 Rule 13 (12) for adjournment is refused.
     
   • (2) The matter will be adjourned for Directions on Monday 07^th November 2022 for prehearing conference and date to be allocated for hearing.
     
   • (3) And costs of the proceedings will be on solicitor client basis against the plaintiff to be paid before the 07^th November 2022 evidence to be filed of payment into Court.
     

Orders Accordingly.

__________________________________________________________________

Leahy Lewin Lowing Sullivan Lawyers: Lawyer for the Plaintiff/Applicant

Dentons PNG: Lawyer for the Defendants.