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Ondalane v Eoe [2023] PGNC 127; N10314 (28 April 2023)

N10314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 16 OF 2023

BETWEEN:
JOHN ONDALANE AS CHAIRMAN of POGERA LOCAL LEVEL GOVERNMENT COUNCIL SPECIAL PURPOSES AUTHORITY
First Plaintiff

AND:
FREDERICK IPARA AS DEPUTY CHAIRMAN OF POGERA LOCAL LEVEL GOVERNMENT COUNCIL SPECIAL PURPOSES AUTHORITY
Second Plaintiff

AND:
HON SOROI EOE, MP AS MINISTER FOR INTER-GOVERNMENT AFFAIRS
First Respondent

AND:
DEPARTMENT OF PROVINCIAL & LOCAL LEVEL GOVERNMENT
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
ANAKO AIYALA, DAVID MAPULI AND MOSES PEARA AS NOMINEES OF PAIELA HEWA AND PORGERA LOCAL LEVEL GOVERNMENT TO PORGERA LOCAL LEVEL GOVERNEMENT SPECIAL PURPOSES AUTHORITY
Fourth Respondent

AND:
NIXON MANGAPE, HENRY LARA, MARK EKEPA AND ELIZABETH LABE AS PREPRESENTATIVES OF POGERA LANDOWNERS’ ASSOCIATION TO PORGERA LOCAL LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Fifth Respondent

Waigani: Dingake J
2023: 13^th & 28^th April

ADMINISTRATIVE LAW – Application for leave to Judicial Review – failure to file an affidavit verifying the Statement pursuant to Order 16 3(2)(a) of the National Court Rules – held application incompetent – application dismissed.

Cases Cited:
Innovest Ltd v Pruaitch [2014] PGNC 288

Counsel:
Mr. Paul Harry, for the Plaintiff
Mr. Russel Uware, for the First, Second & Third Respondents
Ms. Judith Nandape, for the Fifth Respondent

RULING

28^th April, 2023

1. DINGAKE J: This is my decision with respect to the Plaintiff’s application for leave for judicial review filed on the 2^nd of March 2023, pursuant to Order 16 Rule 3(1) and (2) of the National Court Rules.
   
2. The statement pursuant to Order 16 Rule 3(2)(a) of the National Court Rules (NCR) was filed with this Court on the 2^nd of March 2023, and so was the Affidavit verifying the statement.
   
3. The Plaintiff filed an Amended statement pursuant to Order 16 Rule 3(2)(a) of the National Court Rules on the 8^th of March 2023, that was materially different from the one filed on the 2^nd of March 2023. Paragraphs 5.2 and 5.8 of the Amended statement were not part of the initial statement filed on the 2^nd of March 2023.
   
4. It is common cause that there was no Affidavit verifying the Amended statement filed on the 8^th of March 2023.
   
5. The First Plaintiff is the current Chairman of the Porgera Local Level Government Special Purposes Authority (“LLGSPA”) and the Second Plaintiff is the Deputy Chairman of the said Authority.
   
6. The Plaintiffs seek leave of this Court to review the decision of the First Respondent in Ministerial Instrument dated 23^rd of November 2022, which endorsed the appointment of the Fourth and Fifth Respondents as members of the Porgera LLGSPA.
   
7. During the course of the hearing of the leave application, it became apparent that the Plaintiffs failed to file an Affidavit to verify the amended statement.
   
8. The question that has arisen as a result of the above failure is whether the leave application is incompetent and liable to summary dismissal pursuant to Order 16 Rule 13(13) 2(a) and Rule 8 of the National Court Motions (Amendment) Rules 2005.
   
9. The Plaintiffs have submitted that the Court should not summarily dismiss the leave application as the initial statement was properly verified and argued that the Plaintiffs Amended statement was not materially different from the initial Statement.
   
10. The Respondents have urged this Court to dismiss the leave application for offending Order 16 Rule 3(2) of the National Court Rules (NCR) pursuant to Order 16 Rule 13 (13) (2)(a).
    
11. In the case of Innovest Ltd v Pruaitch (2014) PGNC 288, the Court discussed the importance of compliance with Order 16 of the National Court Rules in the following terms:
    

“Pursuant to Order 16 Rule 3(2), a Statement in Support should be filed and served with the Originating Summons, the Affidavit verifying the facts and the Affidavits in Support. All these documents must be filed and served before an application for leave for Judicial Review can be properly made.”

12. The Court also pronounced itself on the possible consequences of failure to file and serve any of the above documents in the following terms:
    

“... A failure to file and serve any one of these documents may deem the application incompetent and subject to summary pursuant to Order 16 Rule 13 (13)(2)(a) and Rule 8 of the National Court Motions (Amendment) Rules 2005.”

13. On the basis of the above authorities, I am persuaded that the Plaintiffs failure to file a verifying Affidavit renders the application for leave incompetent and liable to summary dismissal pursuant to Order 16 Rule 13 (13)(2)(a) and Rule 8 of the National Court Rules.
    
14. Order 16 Rule 13 (13)(2)(a) provides that:
    
    • (a) Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Practice Directions or on any other competency grounds.
      
15. In the result it is ordered and or declared that:
    
    • (a) Failure of the Plaintiffs to file the Affidavit verifying the facts with respect to the Amended statement filed on the 8^th of March 2023, renders the application for leave incompetent.
      
    • (b) The said Application for leave is summarily dismissed pursuant to Order 16 Rule 13 (13)(2)(a) of the National Court Rules, with costs, such costs to be agreed if not taxed.

_______________________________________________________________
Harry Lawyers: Lawyer for the Appellants
Office of the Solicitor General: Lawyer for the First, Second & Third Respondents
Nandape & Associates Lawyers: Lawyers for the Fifth Respondent