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South Seas Tuna Corporation v Doiwa [2025] PGNC 20; N11149 (7 February 2025)

N11149

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 198 OF 2024

BETWEEN:
SOUTH SEAS TUNA CORPORATION
Plaintiff

AND:
BEVERLEY DOIWA, as Chairman & Members of an Arbitration Tribunal established under the Industrial Relations Act Ch. 174

First Defendant

AND:
PNG MARITIME AND TRANSPORT WORKERS UNION
Second Defendant

AND:
RAVU VAGI, a member of the Public Service employed under the Public Services (Management) Act and appointed to the position of Departmental Head, Department of Labour and Industrial Relations
Third Defendant

AND:
PAULO WARTOVO, as Acting Industrial Registrar appointed under the Industrial Relations Act 1974
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

WAIGANI: PURDON-SULLY J
10 DECEMBER 2024; 7 FEBRUARY 2025

JUDICIAL REVIEW – Practice & Procedure – Application for leave for judicial review – National Court Rules, Order 16 r 1, 3, 4– Originating Summons - Statement in Support - Pleadings – Need to only plead leave and the decision to be reviewed in the Originating Summons, not the relief sought – application incompetent - Originating Summons dismissed.

Cases cited

Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22
Kekedo v Burns Philp Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel

Mr Ako for the plaintiff
Ms Mobiha for the State

1. PURDON-SULLY J: This is my ruling on an application by the Plaintiff by Originating Summons filed on 1 August 2024 seeking leave to apply for judicial review pursuant to Order 16 Rule 3 of the National Court Rules (the Rules) against the decisions as particularised in the Originating Summons as follows:
   1. the Third Defendant on 1 September 2020 and 3 May 2024
   2. the Fourth Defendant on 3 May 2020 and 19 January 2024
   100. the First Defendant on 1 September 2020 and 19 December 2023.
2. The dispute, in short compass, arises from a log of claims for an industrial award in respect of the terms and conditions of employment of the Second Defendant’s members employed by the Plaintiff.
3. The Plaintiff relies upon the documents listed at [3] of written submissions, undated save for the month of October 2024. In its Statement in Support Pursuant to Order 16 Rule 3(2) of the Rules the Plaintiff relies upon four (4) grounds of review namely:
   1. Jurisdictional error
   2. Failure to grant natural justice
   100. Procedural fairness
   4. Infringement of constitutional rights.
4. The Plaintiff sought relief in the form of an order in the nature of certiorari, various declarations, permanent injunctions and an order pursuant to the Wrongs (Miscellaneous Provisions) Act in the nature of indemnity for damages as a consequence of the acts and omissions of the First to Fourth Defendants.
5. The State, who pursuant to s 8 of the Claims By and Against the State Act has a right to be heard on the application, opposes the orders sought.
6. An application for judicial review cannot proceed unless the court grants leave. The granting of leave involves an exercise in judicial discretion. The principles and criteria for leave are well settled in this jurisdiction. An applicant must show that he or she has sufficient interest in the matter (O 16 r 3 (5) ), there is no undue delay in bringing the application (O 16 r 4 in respect of an application for certiorari), he or she has exhausted alternative statutory or administrative remedies ( O 16 r 3 (6)) and that there is an arguable case: Geno & Ors v The Independent State of Papua New Guinea [1993] PNGLR 22, Kekedo v Burns Philp Ltd [1988-89] PNGLR 122; Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303).
7. The State raises issues to do with the Plaintiff’s legal standing, undue delay and whether the Plaintiff has an arguable case. The State also submits that while it has endeavoured to identify the subject decisions sought to be reviewed as particularised by it at [1.4] of its written submissions dated 10 December 2024, the decisions sought to be reviewed in the Originating Summons are not clear.
8. During the course of submissions, the court raised with Counsel for the Plaintiff whether the Originating Summons was incompetent by reason of its pleading of the relief sought. The matter was stood down to enable the Plaintiff’s Counsel to consider the decision of Innovest Ltd v Pruaitch [2014] PGNC 288; N5949.
9. Counsel for the Plaintiff then informed the court that the Plaintiff only sought to press [5] and [6] of the Originating Summons as follows:
   5. An Order that the Plaintiff have leave to apply for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules and all other laws enabling, for orders in the nature of certiorari quashing the publication by the Acting Industrial Registrar on 3 May 2024 in G325 and all antecedent steps of the First to Fourth Defendants (including those set out above at paragraphs 2 and 3 above) culminating in the publication in No. G325 on 3 May 2024.
   6. An order that the Plaintiff have leave to apply for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules and all other laws enabling, for orders in the nature of a prohibition restraining the First, Second, Third and Fourth and Fifth Defendants from taking steps to implement the decisions:
      1. of the Third Defendant to refer the undated unsigned log of claims to the First Defendant on 1 September 2020;
      2. of the First Defendant to promulgate the Industrial Award referred to as the South Seas Tuna Corporation Employees Industrial Award of 2023 dated 19 December 2023;
      3. of the Fourth Defendant on 19 January 2024 to register as Award No. 18 of 2023 the Industrial Award referred to in paragraph 4(a) above; and
      4. of the Fourth Defendant to publish the purported award in the National Gazette on 3 May 2024 as No. G325.

CONSIDERATION

10. The Plaintiff’s application for leave to apply for judicial review should be dismissed. In its Originating Summons the Plaintiff seeks at [5] and [6] the substantive relief sought by it. The only matters that should be pleaded in the Originating Summons are leave to apply for judicial review, which is the relief sought, and the decisions to be reviewed for which leave is sought (Order 16 r 3(2)). The Rules do not allow for the substantive relief such as an order in the nature of certiorari or prohibition or other relief to be pleaded in an Originating Summons. The substantive relief sought should be pleaded in the Statement in Support together with the grounds for review (Order 16 rr 1 and 3 (2) (a)) (see Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 per Gavara-Nanu J at [5]).
11. In consequence the application is incompetent and should be dismissed.
12. Having so determined it is not necessary to consider the submissions on behalf of the State as to why leave for judicial review should otherwise be refused.
13. The Plaintiff should meet the State’s costs of its application.

ORDERS

14. The Plaintiff’s Originating Summons filed 4 August 2024 be dismissed.
15. The Plaintiff to pay the State’s costs on a party and party basis to be agreed or taxed.
16. Time to abridge.
    

Lawyers for the plaintiff: O’Briens
Lawyer for the State: Office of the Solicitor General