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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
O.S. No. 267 OF 2004
BETWEEN:
STANLEY MIAM
Plaintiff
AND:
JOE DAI, DEPUTY SECRETARY, DEPARTMENT OF
LABOUR & EMPLOYMENT
First Defendant
AND:
MARGARET L. ELIAS, SECRETARY FOR DEPARTMENT OF LABOUR & EMPLOYMENT
Second Defendant
AND:
PETER S. TSIAMALILI, SECRETARY FOR DEPARTMENT OF LABOUR & EMPLOYMENT
Third Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Mt Hagen: David, J
2009: 23rd March & 12th May 2009
PRACTICE & PROCEDURE – application for judicial review under O.16 National Court Rules – leave granted – failure to file notice of motion to apply for substantive relief under O.16 r.5 (1) - application to dismiss for want of prosecution under O4.r.36 National Court Rules – time is of the essence in judicial review proceedings – date for hearing to be fixed in accordance with O.16 rr.5 (3)(4) and 13 - delay is intentional, inordinate and inexcusable – failure of plaintiff to prosecute proceedings with due despatch – proceedings dismissed.
Cases cited:
Kai Ulo & 2 Ors v. The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133
Vivisio Seravo v. Jack Bahofa (2001) N2078
Joseph Yonge v. Luke Niap (2001) N2101
John Niale v. Sepik Coffee Producers Ltd & ors (2004) N2637;
Kely Kerua v. Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534
Ahmadiyya Muslim Mission v. Bank of South Pacific Ltd (2005) N2845
Counsel:
Danny Gonol, for the Plaintiff
Veronica Yobone, for the First & Second Defendants
RULING ON MOTION
12th May, 2009
1. DAVID, J: INTRODUCTION: I gave a brief ruling this morning and undertook to publish my full reasons later. This I now do.
2. By an Amended Notice of Motion filed on 19th March 2009, the First and Second Defendants sought, inter alia, the following orders:-
3. The First and Second Defendants rely on the Affidavit in Support of David Tibu sworn on 2nd March 2009 and filed on 10th March 2009. Mr. Tibu is the current Secretary for the Department of Labour and Industrial Relations. It is quite apparent from the evidence that the Department of Labour and Industrial Relations is the new name for the Department of Labour and Employment and therefore the names will be referred to interchangeably in the judgment.
4. The Plaintiff contests the application. He relies on the following Affidavits:-
2. Affidavit in Support of Stanley Miam sworn on 7th July 2008 and filed on 9th July 2008 (the Plaintiff’s Second Affidavit);
3. Affidavit in Response of Danny Gonol sworn on 17th March 2009 and filed on 18th March 2009.
5. At the hearing, Ms. Yobone of counsel for the First and Second Defendants handed up her clients’ written submissions for my assistance for which I am grateful. I have perused and considered those submissions together with her oral submissions as well as those advanced by Mr. Gonol of counsel for the Plaintiff.
BRIEF BACKGROUND AND FACTS
The Plaintiff’s allegations
6. The Plaintiff was employed as a Senior Labour Officer, occupying position No.FOSH 006, Grade 10 and was attached to the Department of Labour and Employment, Mt Hagen Regional Office. He had been employed in that position at Mt. Hagen since 1984 until his purported retrenchment in early 2001.
7. He was forced to be retrenched which was in breach of procedures contained in General Order No.16 governing redundancy and retrenchment in the public service. He was never personally served with a purported notice of retrenchment dated 8th January 2001, but a copy of the notice was sent to him by facsimile on 15th January 2001 together with a Deed of Release. He did not sign the Deed.
8. The Plaintiff concedes that his retrenchment payout was paid into an account of his, but that was done without his consent.
9. By his letter addressed to the Secretary of the Department of Personnel Management dated 17th January 2001 which was made to the attention of the Redundancy Monitoring Committee, the Plaintiff lodged an appeal against his retrenchment requesting to be reinstated.
10. On 2nd February 2001, the Redundancy Monitoring Committee considered and dismissed the appeal. The Secretary for the Department of Personnel Management at the time, the late Mr. Peter Tsiamalili conveyed the decision of the Redundancy Monitoring Committee to the Plaintiff in his letter to the Plaintiff dated 8th February 2001. That letter contained the grounds for dismissal and also by which the Plaintiff was notified that he was required to collect his retrenchment cheque from that Department if he had not done so already.
11. Aggrieved by the dismissal of his appeal, the Plaintiff, by his letter addressed to the Secretary for the Department of Personnel Management dated 16th March 2001 which was made to the attention of one Robert Yass, Chairman, Redundancy Monitoring Committee, requested the Redundancy Monitoring Committee to review its decision. No response to that letter was received from the Redundancy Monitoring Committee.
12. In the meantime, because his substantive position was advertised, the Plaintiff applied, but was unsuccessful as the Selection Committee viewed him to be unsuitable for the position. He then corresponded with; the Secretary of the Department of Personnel Management by his letter of 27th August 2001; and one Mr. Peter Neimani, First Assistant Secretary, Field Operations with the Department of Labour & Employment by his letter of 29th August 2001 requesting to be reinstated to his former position because the successful applicant, to be precise, Mr. Pingi Sakato was a former Provincial Labour Officer who had a run in with the law previously and had been retrenched. No response was received in respect of both letters.
13. After a lull, which was due to the dismantling of the Redundancy Monitoring Committee and renegotiations of a new redundancy and retrenchment agreement between the Public Employees Association and the Department of Personnel Management, he, in an undated letter, wrote to the Public Services Commission requesting for a review of a personal matter basically in regard to the propriety of the appointment of Mr. Pingi Sakato.
14. The Plaintiff also wrote to one Dr. Pok who was the Minister for Labour and Employment then to intervene. That resulted in the Minister writing to the Second Defendant, Ms. Elias, Secretary for the Department of Labour and Employment on 22nd April 2002 directing her to liaise with officers concerned at the Department of Personnel Management and to brief him on the status of reinstating the Plaintiff within the Department of Labour and Employment. No response was given to that letter.
15. Whilst waiting, an advertisement was placed inviting applicants to apply for the vacant position of Provincial Labour Officer, Goroka, No. 01/2003-FOSH 003, Grade 12. He applied, but was unsuccessful.
Commencement of proceedings
16. The Plaintiff was not achieving anything so on 17th May 2004, he filed the present proceedings seeking the following orders:-
"1. leave to apply for judicial review of the procedures taken by the Defendants culminating in the Plaintiff being retrenched from employment;
2. an order in the nature of certiorari to bring up to this Court and quash the decision to retrench the Plaintiff;
3. the Plaintiff be reinstated to his substantive position or in the alternative be accorded a position parallel to his substantive;
4. an order that the Plaintiff be paid his lost entitlements from the date of retrenchment to the date of this order;
17. Leave was granted on 23rd August 2004.
Further allegations about developments after commencement of proceedings
18. On or about 16th November 2006, the Public Services Commission reviewed the Plaintiff’s matter and decided that he be reinstated to his substantive position. That decision was conveyed by the Public Services Commission to the Secretary for the Department of Personnel Management in its letter of 16th November 2006. The Secretary for the Department of Personnel Management then wrote to the Secretary for the Department of Labour and Employment on 20th May 2007 and 30th August 2007 directing him to implement the decision of the Public Services Commission to reinstate the Plaintiff.
19. Despite numerous letters having been sent by himself or by others on his behalf to the Secretary for the Department of Labour and Employment including the Minister responsible for that Department for his reinstatement following the decision of the Public Services Commission, no favourable response has been received.
THE ISSUES
20. The major issues are:-
THE LAW ON DISMISSAL FOR WANT OF PROSECUTION
21. Order 16 rule 4 (1) of the National Court Rules gives the Court a considerable discretion to dismiss an application for judicial review or leave to apply for judicial review if it considers that there has been undue delay in making the application and in its opinion the granting of the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. That provision reads:-
"4. Delay in applying for relief. (UK. 53/4)
(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration......"
22. Order 4 rule 36 of the National Court Rules however is the general provision dealing with dismissal for want of prosecution for proceedings commenced by originating summons. It reads:
"36. Want of prosecution. (5/12)
(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.
(2) Sub-rule (1) applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff."
23. By comparison, O.10, r.5 of the National Court Rules deals with dismissal for want of prosecution for proceedings commenced by writ of summons. It states:
"Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit."
24. There is no significant difference between these two (2) rules. What both rules deal with is the power of the Court to dismiss proceedings on the ground of want of prosecution which is discretionary. The discretion is to be exercised having regard to all the circumstances of a case: see Kai Ulo & 2 Ors v. The State [1981] PNGLR 148 and Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55. The principles to apply in deciding applications pursued under either rule are generally similar.
25. A large number of cases have discussed the law from which emerge a number of well-established principles. These principles were succinctly summarised by His Honour, Justice Kandakasi in the case of Vivisio Seravo v Jack Bahofa (2001) N2078. There, His Honour said:
"It is now clear law especially in the context of O.10 r.5 of the NCRs that an application for a dismissal of proceedings for want of prosecution may be granted if:
1. The plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
2. There is no reasonable explanation given by the plaintiff for the delay; and
3. That the delay has caused injustice or prejudice to the defendant.
This is apparent from cases like that of Ronald Nicholas v. Commonwealth Niugini Timbers Pty Ltd [1986] PNGLR 133 which has been followed in a number of other cases such as Umbu Waink & Anor v. Motor Vehicles Insurance (PNG) Trust and The State (15/08/97) N1630. I consider those principles relevant and therefore they apply in the context of O.4. r.36 (1), in the absence of any authority to the contrary."
26. In Kai Ulo, the Supreme Court said that the onus is on an applicant to establish a prima facie case of delay and the onus then shifts to the respondent to give a satisfactory explanation for the delay.
27. Matters relevant to determining whether there was inordinate or undue delay or whether satisfactory explanation for the delay had been established were suggested by the late Justice Kapi (as he then was) in Kai Ulo and by the Supreme Court in Burns Philp (New Guinea) Limited. These are:
28. Other factors to be used as guides are:-
29. In Roland Nicholas v. Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133, it was said that where there was a long delay in progressing the proceedings to trial, a balance must be struck as between the plaintiff and the defendant and in the end the Court must decide whether or not in the balance, justice demands that the proceedings should be dismissed.
Submissions of the First and Second Defendants
30. Ms. Yobone submitted that the proceedings should be dismissed for want of prosecution because the Plaintiff has failed to prosecute them with due despatch. Briefly, her reasons are:-
Submissions of the Plaintiff
31. Mr. Gonol submitted that over the last nine (9) years, the Plaintiff has been trying to seek justice administratively and through the Court concerning a decision made by the defendants to retrench him which his client says is flawed and he has been made to suffer as a result. The Plaintiff has not rested in his pursuit to seek justice since filing these proceedings, he said.
32. Mr. Gonol further submitted that the Court was well aware of the problems associated with the listing of cases for trial and the general disposition of the backlog of cases here due to having only one (1) resident judge in the past in the late Justice Hinchliffe to deal with them. There were still some matters filed in the 1990s that were yet to be dealt with by the Court and some progress began in 2006 when another judge in myself took up residency here, he said.
33. Counsel further submitted that; this case, like many others, was awaiting listing for trial; the application was being made at the 11th hour; and that if there has been any delay in prosecuting these proceedings, it was not intentional.
34. Moreover, Mr. Gonol submitted that since his firm took over the conduct of the Plaintiff’s case in or about April or May 2008, he has tried to progress it. This he said was evident in his Affidavit where he deposes that:-
Reasons for ruling
Commencement of proceedings for substantive judicial review
35. The phrase "originating process" is defined in O.1 r.6 of the National Court Rules (Interpretation) and it ‘means a writ of summons, or an originating summons or, where a cross-claim is made against a person not previously a party to the proceedings in which the cross-claim is made, the cross-claim.’ Civil proceedings under Part 2 of the National Court Rules (Civil Jurisdiction – Orders 3-17) are generally commenced by writ of summons or originating summons (O.4 r.1). Other Acts or subsidiary legislation may prescribe other modes (O.4 r.1). A party against whom a claim is made in proceedings and who claims some relief by way of counter-claim, etc, may make his or her claim by filing a cross-claim (O.8 r.38).
36. Interlocutory applications are usually instituted by motion (O.4 rr.4, 37 and 49 (9)).
37. The originating process by which an application for leave to apply for judicial review is instituted is by originating summons ex parte (O.16 r.3 (2)).
38. The procedure for making the substantive application for judicial review after leave is granted is prescribed by O.16 r.5 (1) of the National Court Rules. It is convenient to set out below the whole of r.5. It reads:-
"5. Mode of applying for judicial review. (UK. 53/5)
(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by notice of motion to the Court.
(2) The notice of motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the notice of motion must also be served on the clerk or registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the notice of motion and the day named in it for the hearing.
(4) Within 21 days after grant of leave the notice of motion shall be allocated a date for hearing by the Registrar after consultation with the parties.
(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion must be filed before the notice of motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the notice of motion.
(6) If on the hearing of the notice of motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice of motion may be served on that person."
39. According to O.16 r.5 (1), the substantive application must be made by a notice of motion (notice of motion for substantive application): see also O.16 r.13 (5)(1); Practice Direction NCR 2/95 (issued on 12/12/1995); Practice Direction No.4 of 2004 (issued on 26/08/2004). The notice of motion for substantive application must then be served on all persons directly affected (O.16 rr.5 (2) and 13 (5)(2)) after which an Affidavit confirming service upon all those who ought to be served must be filed (O.16 rr.5 (5) and 13 (5)(3)).
40. According to O.16 r.6 (1) of the National Court Rules, copies of the statement in support of the application for leave (the statement) must also be served with the notice of motion: see also O.16 r.13 (5)(3). That provision reads:-
"6. Statements and affidavits. (UK. 53/6)
(1) Copies of the statement in support of an application for leave under Rule 3 must be served with the notice of motion and, subject to Sub-rule (2), no grounds shall be relied on or any relief sought at the hearing except the grounds and relief set out in the statement...."
41. There appears to be no requirement to serve copies of the affidavit verifying the facts relied on for the purposes of the leave application and other supporting Affidavits, but this can be addressed through directions issued under O.16 r. 13 (5)(3). Ordinarily those Affidavits should be served together with the notice of motion (O.4 r.44 (Affidavits)) and the statement. This is because O.16 r.6 (4) states that copies of the affidavit in support of the application for leave and every other affidavit which an applicant or party proposes to use at the hearing must be supplied to every other party only on demand and upon payment of the proper charges for obtaining the relevant copies.
42. Mr. Gonol submitted that the assertion by Mr. Tibu that the originating process was never served on the defendants was misleading. He deposes in his Affidavit that all Affidavits to be relied upon in particular by the Plaintiff have been filed. However, neither he nor the Plaintiff makes any reference to a notice of motion for substantive application having been filed in accordance with O.16 r.5 (1) in their respective Affidavits. Ms. Yobone submitted that the Plaintiff has actually filed none.
43. My perusal of the file containing the Court’s record reveals that:-
44. The consequence for not filing a notice of motion for substantive application is that there is actually no application for substantive judicial review on foot. It follows therefore that all steps required to be taken under O.16 r.5 (2)(3)(4) and (5) and O.16 r.13 including the compilation of a review book cannot take place in the circumstances.
45. The passage of time from the date of grant of leave on 23rd August 2004 to the date of filing of the application under consideration on 19th March 2009, is a total period of about four (4) years, six (6) months and twenty four (24) days. Ms. Yobone’s estimation was about five (5) years. That is prima facie an unnecessary long delay and it is well outside the twenty one (21) days time limit prescribed under O.16 r.5 (4) for the Registrar to allocate a hearing date in consultation with the parties: see also O.16 r.13 (6)(1).
47. A possible explanation for the delay may be found in the Plaintiff’s Second Affidavit. There the Plaintiff deposes at paragraph 5 that:-
"Favourable events have taken place after I filed the Court proceedings." (sic)
These ‘favourable events" no doubt may have actually led to the Public Services Commission in or about November 2006 deciding in favour of the Plaintiff being reinstated as an unattached officer, but on the substantive grade he was on immediately prior to his purported retrenchment.
The notice of motion for leave
53. Assuming that the substantive application for review was properly on foot (which I say it is not) facilitated by the notice of motion for leave and the order made on 23rd August 2004 granting leave, should I or not, in the exercise of my discretion, dispose of the proceedings summarily for want of prosecution.
54. It is not disputed that leave was granted on 23rd August 2004. However, the Court’s position on the actual terms of that order needs to be stated. This is because there are two (2) different minutes of the order in the file, one entered on 31st August 2004 and the other entered on 29th September 2005. In his Affidavit, Mr. Tibu deposes that there was no record of any formal application having been made to vary the order granting leave. It is convenient therefore to set out below the terms of those minutes.
55. The first one which was entered on 31st August 2004 reads:-
"1. Leave is granted for judicial review of the procedures taken by the Defendants (Redundancy Monitoring Committee) culminating in the Plaintiff being retrenched from employment;
2. The balance of the Orders sought in the Originating Summons be given a special fixture for hearing;
3. There be no orders as to cost." (sic)
56. The one entered on 29th September 2005 reads:-
"1. Leave is granted for Judicial Review of the decision of the defendants in their capacity as the procedures taken by the Defendants culminating in the plaintiff being retrenched from employment.
2. No order for costs." (sic)
57. If I accept the minutes of the first order as the correct record of the order granting leave, I will treat the second item there as a direction made under O.16 r. 5 (3) which is now complemented by O.16 r.13 (5). However, it is my view that the allocation of a date for hearing of the special fixture would still involve the Registrar under O.16 rr.5 (4) and 13 (6) (1).
58. The minutes of the second order substantially is in congruence with the endorsement in the Court file except that no reference is made to the question of costs. I would therefore prefer the minutes of the second order as the correct record or reflection of the order granting leave although belatedly entered.
59. The result is that there is effectively no order to circumvent the requirements under O.16 r.5. Those requirements which are now complemented by O.16 r.13 should have been complied with to progress the matter to hearing. The requirements under r.13 have not been strictly implemented here since coming into force in 2006 and therefore the Plaintiff need not be penalised for any default for non-compliance with them, but the same cannot be said about compliance with O.16 r.5.
60. Mr. Gonol has pointed out to the Court in his evidence and submissions the exigencies of progressing cases here to hearing in Mt. Hagen partly attributed to only one resident judge stationed here prior to 2006 to deal with a backlog of cases. The backlog includes some cases that were filed in the 1990s he said. Whilst that may be so, time is of the essence in dealing with judicial review applications: see Joseph Yonge v. Luke Niap (2001) N2101 and Kely Kerua v. Council Appeal Committee of the University of Papua New Guinea and University of Papua New Guinea (2004) N2534. This is reflected by the time limits imposed under O.16 r.5 (4) and matters in relation to which directions or orders may be issued under O.16 r.13 (5), (6) and (8).
61. Order 16 rule 5 (4) requires that within twenty one (21) days following the grant of leave, the notice of motion for substantive application for judicial review must be allocated a date for hearing by the Registrar after consultation with the parties. The Registrar is now required to issue a Notice of Directions Hearing in accordance with O.16 r.13 (6)(1) following the allocation of a date for Directions Hearing by the judge granting leave.
62. In Kely Kerua, Injia, DCJ (as he then was) was dealing with an application for judicial review filed by a final year student doing Business Economics at the University in respect of the decision of the University Council’s Disciplinary Appeal Committee (the Appeal Committee) to reject his appeal against the decision of the University’s Student Disciplinary Committee (the Disciplinary Committee) to terminate his studies for disciplinary reasons. Leave to apply for review was granted on 13th June 2003. A stay of the decision of the Appeal Committee granted at the time leave was granted allowed the student to continue his studies which he completed. The substantive application for judicial review was heard on 24th March 2004. The application was successful resulting in His Honour quashing the decisions of the Appeal Committee and the Disciplinary Committee. His Honour ordered, inter alia, that the student having completed his studies in Business Economics be awarded his degree if he had met all the necessary requirements that qualified him for that degree.
63. I set out below His Honour’s remarks concerning time being of the essence.
"In a judicial review application, time is of the essence. The Rules recognized and emphasized this point by requiring the Registrar to fix a date for the hearing of the substantive application within a fixed time frame after the grant of leave..........It is incumbent upon the Registrar to consult with the parties within the prescribed 21 days and fix a date for the substantive hearing to take place as soon as it is practicable for the parties and the Court. The date for hearing will be fixed on the Notice of Motion filed by the Applicant under O.16 r.5(i). A reasonable or practical time frame is not infinite number of weeks or months and even a year or years, as my own experience in some judicial review cases show. I am speaking of a week to a few weeks or perhaps, and in exceptional cases a month or two at most. It is equally incumbent on the parties, Applicants in particular, to enquire with the Registrar within the twenty-one (21) days to fix a date for the hearing..... If for some good reason, it is not practicable for the Registrar to fix a date for the hearing within the twenty-one (21) days, he must seek directions from the Court."
64. The cases of Joseph Yonge and Kely Kerua are some out of numerous cases which illustrate the need to deal with applications for judicial review expeditiously either before or after leave is granted and they should be dismissed quite readily where it is shown to the satisfaction of the Court that an applicant has failed to prosecute his or her proceedings with due despatch.
65. In Joseph Yonge, His Honour, Kandakasi, J was dealing with an application filed by a former employee of Papua New Guinea Harbours Board (the Harbours Board) for leave to apply for judicial review of a decision of the defendants, the Harbours Board and its Acting General Manager, to terminate his contract. The applicant did not appear at the hearing despite having knowledge of the hearing date. Counsel for the defendants applied to have the proceedings dismissed for want of prosecution and also on the merits for failing to disclose an arguable case. The proceedings were dismissed under both grounds. His Honour said:-
"Judicial review applications by their very nature call for prompt action...... The onus is thus, placed in my view, on a plaintiff to take every step to prosecute his claim with due dispatch. A failure to do so, attracts the risk of dismissal as the ultimate penalty. The court is vested with a discretion to dismiss proceedings that do not get prosecuted promptly. I am of the view that, this discretion should be exercised quite readily in an application for leave to apply for judicial review unless, good and reasonable basis is shown by an applicant to prevent an exercise of that discretion. This view emanates from the fact that, judicial review, by their very nature, require prompt action to avoid unnecessary confusions, disruptions and or uncertainties that could be caused by the fact of an application being filed for leave for judicial review."
66. As I have adverted to already, there is no record of any notice of motion for substantive application having been filed by the Plaintiff in accordance with O.16 r 5 (1) nor has any been served upon the Defendants or other persons directly affected in accordance with O.16 r.5 (2). There is no other explanation why within twenty-one (21) days after leave was granted a hearing date could not be allocated other than due to the lack of filing of the notice of motion for substantive application. This is because if one had been filed, a date could have been allocated by the Registrar after consultation with the parties prior to the improvements in practice and procedure brought about by the promulgation of r.13.
67. Is it possible to then put some blame on the Registrar through the Assistant Registrar here? I do not think so. I think O.16 r.5 (1) is quite explicit. It is the Plaintiff who is seeking judicial review to properly institute the substantive application by filing a notice of motion for substantive application. The Registrar will not get involve under O.16 rr.5 (4) and 13 until the substantive application for judicial review is properly on foot. The significance of that is recognised in O.16 r.13 (5)(1) where the need to file a notice of motion for substantive application is further enhanced by the matter being listed at the top of the list of matters in relation to which directions may be issued by the judge granting leave. The Registrar could have referred the matter to the Court for summary determination though.
68. I accept Ms. Yobone’s submissions that the Plaintiff’s default is intentional. This can be inferred from the conduct of the Plaintiff. Firstly, since the filing of these proceedings and the subsequent grant of leave, the Plaintiff continued to pursue the Public Services Commission about his reinstatement and when it returned a decision in his favour, he became disinterested as the remedy he had set out to obtain by judicial review had already been achieved administratively. According to Mr. Tibu, on 4th August 2005, the Plaintiff lodged another complaint with the Public Services Commission seeking to review its previous decision. Secondly, the Plaintiff was coming back to Court only after the Secretary for Department of Labour and Industrial Relations has refused to implement the decision of the Public Services Commission. The evidence regarding that can be found in the Plaintiff’s Second Affidavit and at paragraphs 28 to 39 of Mr. Tibu’s Affidavit and annexures "J" to "M" of that Affidavit.
69. There is no record of the First and Second Defendants filing a notice of intention to defend until recently when Greg Manda Lawyers filed their appearance to act for them. The significance of this is that under O.7 r. 2, no steps can be taken by a defendant without filing a notice of intention to defend. I do not think therefore that a letter by Mr. Tibu to Kopunye Lawyers in November 2004, nor service of the order granting leave or service of the application for summary judgment on the Office of the Solicitor General or on Mr. Tibu or the Department of Labour and Industrial Relations should be taken negatively against the First and Second Defendants in the circumstances.
70. I also accept Ms. Yobone’s submissions that the Plaintiff’s default has allowed an inordinate or inexcusable delay in the prosecution of these proceedings. This is, as I have adverted to already, because of the failure of the Plaintiff to file a notice of motion for substantive application, the application for substantive review was not on foot and therefore a hearing date could not be fixed in accordance with O.16 rr.5 (4) and 13. The periods of; twenty one (21) days within which to get a date for hearing (O.16 r.5 (4), but pre r.13); and to pursue orders in the nature of certiorari within four (4) months of the decision sought to be reviewed (O.16 r.4) have long expired. The passage of time from the grant of leave to the time of making this application is therefore clear evidence that these proceedings have not been prosecuted expeditiously.
71. As to the submissions of Ms. Yobone on the possibility of her clients not having a fair trial, this is what I say. Ms Elias and the late Mr. Tsiamalili were not sued in their private capacities. They were sued as secretaries of the respective departments they were heading at the material time. When changes occurred at the helm due to a new appointment in the public service in the case of Ms. Elias and death in the case of the late Mr. Tsiamalili, the relevant records concerning the Plaintiff would have survived those events and remained in the custody of the departments concerned. Those that have taken their places would no doubt have access to those records if not misplaced or destroyed. There is no reason why Ms. Elias cannot be called to give evidence if these proceedings were to remain on foot. The same cannot be said of the late Mr. Tsiamalili though. There is some merit in this argument.
72. I agree with Ms. Yobone’s submission that the decision of the Public Services Commission made in or about November 2006 to reinstate the Plaintiff has changed the circumstances of these proceedings. The substantive orders the Plaintiff sought under items 2, 3 and 4 of the originating summons and again pleaded in the statement (although it appears unclear from the pleadings as to whose actual decision was being sought to be reviewed) have been addressed administratively. The issue that arises from this change of circumstance is now about enforcement of the decision of the Public Services Commission in the light of Mr. Tibu and his Department taking issue with the propriety of that decision. To this, Mr. Gonol states that; the decision of the Public Services Commission is binding pursuant to the Public Services (Management) Act as amended; and the failure by Mr. Tibu to implement that decision was clear insubordination and against the law and therefore he should be disciplined. The Plaintiff should not prevaricate. I think there is merit in the argument that is proffered by Ms. Yobone which the Plaintiff in his interest should explore.
73. The conduct of the proceedings by the Plaintiff since the filing of these proceedings must be assessed from the time leave was granted. As I have stated already, Paulus M. Dowa lawyers have tried to progress the proceedings to obtaining a date for hearing, but these steps have been taken in vain without the substantive application for judicial review being properly on foot. As I have stated earlier, if the proceedings were properly on foot, the Plaintiff is to be blamed for not prosecuting the proceedings with due despatch. The reasons for the delay before Paulus M. Dowa lawyers were engaged are not really known, but there is evidence that the Plaintiff has contributed to the delay by pursuing the remedy he is pursuing in these proceedings contemporaneously, but administratively with the Public Services Commission which has turned out in his favour. I have concluded already that the Plaintiff’s default is intentional and the delay is inordinate and inexcusable.
CONCLUSION
74. Having considered the circumstances of this case in total and in applying the relevant principles to dismiss proceedings for want of prosecution, I am satisfied that the First and Second Defendants have made out a case for the dismissal of these proceedings for want of prosecution on the basis of delay that is intentional, inordinate and also inexcusable. The Plaintiff has not offered a satisfactory explanation for the delay. In the circumstances, the First and Second Defendants’ application for dismissal for want of prosecution is granted.
75. Having decided to dismiss the proceedings for want of prosecution, it is now not necessary to discuss the remaining issues.
ORDER
76. These are the formal orders of the Court:-
1. These proceedings are dismissed.
2. Costs to follow the event.
__________________________________________
Paulus M. Dowa Lawyers: Lawyers for the Plaintiff
Greg Manda Lawyers: Lawyers for the Defendant
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