N10235
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 414 OF 2019

GOLDEN KEPON & VERA KEPON
Plaintiffs

V
SANNY KOM & MARY KOM
First Defendants

AND
BENJAMIN SAMSON IN HIS CAPACITY AS THE REGISTRAR OF TITLES DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND
LUTHER SIPISON SECRETARY DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND
HON. JOHN ROSSO, MINISTER FOR LANDS & PHYSICAL PLANNING
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Miviri J
2023: 13th & 14th April
 
PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 1 Rule 7, 8, & Order 16 Rule 13, (14)NCR – Dispensation of Certification of Review Book  – Application For – Order 16  Rule 13 (7) Review Book – Applicant Or His Lawyers Responsibility For – Order 16 Rule 13(7) (6) (a) Contents of Review Book – Application For Variation of Orders First Defendant By – Not Moved Breach of Motions Amendment Rules 17 – No Evidence Orders Complied with – Order to Certify Draft Index Defendants By – Decision of State Parties Challenged – Breach of court Order – Motion Granted – Cost Follow Event.

Cases Cited:

Kapal, The State v [1987] PNGLR 417 
Dupnai v Weke [2016] PGSC 43; SC1525 

Counsel:

A. Benny, for Plaintiff
J. Napu, for First Defendants 

RULING
14th April, 2023
1.	MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of the 22nd February 2023 pursuant to Order 1 Rule 7 and 8 and Order 16 Rule 13 (14) of the National Court Rules. 

2.	It prays for the compliance of the Court Order of the 28th November 2022, in particular Order number two, for the Defendants to certify the Draft Index to the Review Book and return it to the Plaintiff by or before the 12th December 2022. For dispensation of it and for the Plaintiff to file and serve the Review Book within three clear working days. And costs  of the application against the First Defendant including any other orders in the discretion of the Court.

3.	The motion is supported by the affidavit of Aaron Benny filed of the 27th February 2023, sworn of the same day. He is a lawyer who has carriage of the matter for the Plaintiff since 2019. He deposes that on the 08th November 2022 this Court made orders for the defendants to certify and return the review books that he had prepared as Lawyer for the Plaintiffs. And he attached the review Books with a letter annexure “ABI” to his affidavit. But which were not certified in breach of the court orders made of the 08th November 2022. So, on the 28th November 2022 at directions, he informed the Court of that fact from which the Court ordered the Defendants to certify the draft index to the Review book and return it to the Plaintiff and the matter was returnable before the Court on the 12th December 2022 at 9.30am.

4.	On the 05th December 2022 he forwarded the Review Book for the certification by the Defendants and for its return to the Plaintiff for filing. On the 07th December 2022 the Solicitor General complied representing the State Parties, but not the First Defendants through their Lawyer. Who returned the same without certification as ordered by the Court. And hence this application to enforce that Court order in particular dispensation of the certification of the Review Book. And to be filed pursuant without.

5.	The First Defendants have refuted and relied on a Notice of motion filed of the 14th November 2022 which has not been moved for variation of the Court Order of the 08th November 2022 pursuant to Order 16 Rule 13 (1) and Order 12 Rule 8 of the National Court Rules. It is clearly in breach of Rule 17 Dismissal/Striking out of motions of the National Court Motions (Amendment) Rules 2005. Because it has not been moved within one (1) month after it was filed. It is filed of the 14th November 2022 and this is 13th April 2023, five months after it has been filed. Further it is not supported by an affidavit contrary to Rule 12 of that Motions Rules 2005. There is no supporting affidavit setting the evidentiary basis for the motion. It has just been flipped out to counter the motion by the Plaintiffs by its mover the first defendants.

6.	The effect is that it is not on the record of the proceedings. It has been moved five months later without affidavit supporting and is dismissed because of the breach set out by Rule 17 set out above. What is now on the record is the motion by the Plaintiffs supported by the affidavit particulars set out above. That to my mind shows breach of a court order of the 28th November 2022 by the First defendants in complying with certification of the Index to the Review Book as set out in Order number two therein. Therefore, it follows that without any evidence or material to the contrary by the First Defendants, the motion of the Plaintiffs succeeds. In that the Review Books will be filed dispensation is granted to do without certification by the First Defendants because of the reasons set out above. This is a matter from 2019 and must seek out the hand of Justice for the cause that the Plaintiffs seek.

7.	In so doing I am mindful that the first defendants have a right to defend their case and must be allowed to bring forth evidence. In this regard there is a notice to rely on affidavits that have been relied on filed of the 22nd March 2023. But order 16 Rule 13 (7) (6) (a) is specific as to what the Review Book shall contain set out from (i) to (xiii). And it does not include affidavits by the defendants because it is the way the decision came out not the substance, the decision. Judicial review is not about the substance of the matter but decision-making process: Kapal, The State v [1987] PNGLR 417 (21 December 1987).

8.	And the challenge is to a decision taken in 2019, that is now into four years since. The State parties have certified the Index to the Review Book, but not the first defendants. The decision no doubt was made by the State entities in favour of the first defendants that is being challenged. It means the process that was followed to come out with the award to the first defendants, not whether that decision was right or wrong is judicial review. It is therefore not necessary for the first defendants to file affidavits as this is not about determining whether they were right or wrong. What is before the court is the process taken by the state entities and that is clear by Order 16 Rule 13 (6) and (7) (6) (a) in particular. Because the review book must be filed within 7 days before the date fixed for the Prehearing conference. Here this matter is outstanding since 2019 now running four years. It cannot be allowed to get that long bearing that Judicial review is time conscious: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016).  Order 16 rule 4 and that the notice of motion must be filed within 21 days after grant of leave, Order 16 Rule 5 (4) of the Rules.

9.	It is clear by the aggregate of all set out above that the balance lies in the grant of the motion by the plaintiff. Leave is granted to file the review books without certification by the first defendants. Opportunity has been accorded for their hand to which they have refused. No prejudice will be suffered nor would their right to defend themselves be forfeited as it is not their decision challenged but the other parties to the cause, the State. In fulfillment of the Order 16 Rule 13 (5) (6) (7) plaintiff will file the review book. Dispensation is granted him on the basis of all set out above to file it without certification by the first defendants forthwith. The matter will revert for direction for allocation of a trial date Monday 17th April 2023 at 9.30am. The First Defendants will bear the cost of the Application following the event.

10.	Accordingly, the formal orders of the court are: 

(1)	The Notice of Motion of the applicant pursuant to Order 1 Rule 7 and 8 and Order 16 Rule 13 (14) of the National Court Rules is granted.

(2)	Dispensation is granted him in accordance with Order 16 Rule 13 (14) of the Rules to file the Review Book forthwith without certification by the First Defendants.

(3)	The Matter is adjourned to Monday 17th April 2023 at 9.30am for a trial date to be allocated.

(4)	And costs of the proceedings will follow the event against the first Defendants.

Orders Accordingly.
__________________________________________________________________
Niuage Lawyers: Lawyer for the Plaintiff/Applicant	
Napu & Company Lawyers: Lawyer for the First Defendants