IN THE HIGH COURT OF TUVALU 2024

CIVIL CASE NO.2/24

BETWEEN
GEDI SHIPPING LTD
FIRST APPLICANT

JULIUS VIOLARIS
SECOND APPLICANT

AND

MINISTER RESP. FOR TRANSPORTATION		
RESPONDENT

Before 		Hon Judge   Sir John Muria

Hearing		8th April, 2024

Ms C Nia for Applicant
Mr G Drecala for Respondent

J U D G E M E N T

Muria J :	This is an application by the defendant to strike out the plaintiff’s application for judicial review in this matter.  In support of the defendants’ application, the affidavit of Tufoua Panapa is relied upon.

Brief Background

2.	By way of a brief background to this application, the plaintiff’s sought and were granted leave to issue judicial review proceedings against the defendants on 12th February 2024.  The judicial review sought was in respect of the defendants’ decision in making and effecting the Control and seizure of Abandoned Vessels Regulations 2023 (“the Regulation).

3.	The order granting leave was served on defendants on 14th February 2024.  The affidavit of service was filed on 20th February 2024.  The substantive application for judicial review together with copies of the ex parte order granting leave, the amended statement accompanying the application, the affidavit by the second plaintiff in support, the second plaintiff’s Power of Attorney and a copy of the impugned Regulation were all served on the defendants on 14th February 2024.

4.	The Memorandum of Appearance was entered for the defendants and filed on 19th February 2024.

	Motion to strike out

5.	By a Notice of Motion dated 7th March 2024 and filed on 8th March 2024, the defendants applied to strike out the plaintiffs’ application for judicial review.  Two grounds are relied upon in support of the application, namely:

a)	the substantive application not being filed and served on the defendants.

b)	There is no reasonable cause of action disclosed.	

6.	As I have indicated earlier, the defendants’ application for striking out is supported by the affidavit of Tufoua Panapa sworn to on 7th March 2024 and filed on 8th March 2024.

	Grounds for striking out

7.	The first ground relied on by the defendants is that the plaintiffs have failed to file and serve the substantive application on the defendants within the eight days as acquired by O.61 r 4 of the High Court (Civil Procedure) Rules.  This it is said gave the defendants insufficient time to respond to the matter before the scheduled hearing date.

8.	Relevantly, O.61 r4 (1) provides as follows:

“4(1) when leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made by notice of motion, and there shall, unless the Court granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion or summons and the day named therein for the hearing.”

9.  	The rule requires the service of the substantive notice of motion for judicial review to be made on the defendants or respondents “at least eight clear days between the service of the notice of motion or summons and the day named therein for the hearing.” The defendants’ contention is that the defendants have not been served at all with the plaintiff’s substantive notice of motion for judicial review within sufficient time before the hearing.  The affidavit of Tufoua Panapa sworn to on 7th March 2024 and filed on 8th March 2024 denied being served with the plaintiff’s substantive application for judicial review.  It is therefore necessary to consider the cryobiology of events in this matter since 12th February 2024 when the ex parte application for leave was made. 

10.	Chronology of events:

On 12th February 2024 	The plaintiffs’ Amended Ex parte Motion seeking Leave to apply for judicial review under).61, r2 (2) of the High Court (Civil Procedure) Rules Come before the Court.

The Amended ex parte application together with the Amended Statement in support and affidavit in support were considered by the Court and granted Leave.

On 14th February 2024  	The substantive Notice of Motion was filed together with copies of all the documents used at the e parte leave hearing.  The Notice of Motion and the accompanying documents were served on the both defendants/respondents on the same date, 14th February 2024.

The Affidavit of Service was filed on 20th February 2024 by Counsel for the plaintiffs confirming service on both defendants/respondents on 14th February 2024 between 1500 hrs. and 1530 hrs.  The Minister was served at his Official residence and the Secretary to Government was served at his office at the Government Building Floor.

On 19th February 2024	Memorandum of Appearance filed      by Counsel for defendants.

On 8th March 2024	The defendants filed a Notice of motion to strike out the plaintiffs’ Judicial Review Proceedings.

Accompanying the defendants’ application was the affidavit of Tufoua Panapa.

On 21st March 2024	The plaintiffs file a “Substantive Application for Judicial Review”  which in actual fact it was a Statement in Support of the substantive application for judicial review.  The substantial review was already filed on 14th February 2024.

On 26th March 2024	The case was called for mentioned.

	The defendants’ application for striking out was also mentioned and fixed for 8th April 2024 on which date the application has been heard.

11.	As have been noted by both parties, the procedure for seeking judicial review under O.61 of the High Court (Civil Procedure) Rules requires two processes.  First, a party seeking review must first of all apply for leave under O.61 r2.  Secondly, after leave is granted, then the applicant can apply for judicial review under o.61 r 4.  In this case the plaintiffs have clearly complied with both rules 2 and 4 of O.61.

12.	On the evidence before the court, it is clearly shown that the defendants/respondents had been served with the substantive Notice of Motion for judicial review on 14th February 2024.  Following that service, Counsel for the defendants/respondents entered an appearance for both defendants/respondents on 19th February 2024.  Any suggestion that the defendants/respondents have not been served with the substantive application for judicial review cannot be sustained. 

13.	There is also the argument by the defendants/respondents that they have been deprived of the opportunity to amount a comprehensive response to the plaintiffs’ case because they were not given sufficient time to prepare for the hearing due to the plaintiff’s not complying with the 8 days service requirement.  This argument is misconceived.  O.61 r4 requires the plaintiffs/applicants to serve the defendants/respondents with the notice of motion or summons at least 8 clear days between the services of the notice of motion or summons “and the day named therein for the hearing.”  There is clearly no date yet fixed in the notice of motion for the hearing of the application for judicial review.  This is due to the format in which the Notice of Motion is being drawn up and used by legal practitioners.  

14.	The Originating Notice of Motion or Summons envisaged under the Rules (including O.57 and O.61) requires the respondent/defendant to enter appearance within 8 days of the service of the Motion or Summons on him.  Thereafter the notice to fix the hearing date of the Motion or Summons is filed buy the plaintiff and served on the defendant for hearing in chambers to fix the hears date. So there is more than ample time for the defendants/respondents to prepare for the hearing of the judicial review application.  There is certainly no justification for the argument that the defendants/respondents have been put at a disadvantage in this case.

No reasonable Cause of action

15.	The second ground relied upon by the defendant for striking out the plaintiff’s application for judicial review is that the plaintiff’s case does not show any reasonable cause of section.  This ground is based solely on the argument that the plaintiff has failed to file and serve the substantive judicial review application on the defendant.  This ground cannot now succeed in the light of what I have said earlier.
	
Attorney General to be joined

16.	 Counsel for the plaintiffs suggest that the Attorney General ought to be joined as defendant in this case.  I think that is a matter for plaintiffs to decide.  Generally, the Attorney General represents the Government in all with actions. 

17.	The result is that the application to strike out the plaintiff’s judicial review application is refused.
	
Dated 15th April 2024

Sir John Muria
High Court Judge