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Bailasi v Kali [2011] PGNC 264; N5016 (26 July 2011)

N5016

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 51 OF 2011

BETWEEN:

HENRY BAILASI, PROVINCIAL ADMINISTRATOR, MILNE BAY PROVINCIAL GOVERNMENT
First Plaintiff

AND:

MILNE BAY PROVINCAL GOVERNMENT
Second Plaintiff

AND:

MR. JOHN KALI as SECRETARY - DEPARTMENT OF PERSONAL MANAGEMENT
First Defendant

AND:

MR. MOSES MALADINA - MEMBER FOR ESA'ALA OPEN & MINISTER FOR PUBLIC SERVICE
Second Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Thompson, AJ
2011: 26 July

JUDICIAL REVIEW - Substantive Notice of Motion for Judicial Review – meaning of Order 16 Rule 5 – failure to file substantive Notice of Motion after grant of Leave – failure to file due to mere inadvertence – extension of time to file substantive Notice of Motion

JUDICIAL REVIEW – meaning of Order 16 Rule 5 – failure to file Notice of Motion for substantive Review following grant of Leave – failure to file due to mere inadvertence – no delay in prosecuting substantive Review – time for compliance extended.

Facts
Leave was granted to the Plaintiff to proceed with judicial review. In default of the Rule requiring a Motion to be filed within 21 days the Motion had not been filed after 4 months and the Respondents has sought to have the proceedings struck out.

Held

1. Filing of the Motion is a fundamental step―endorsing Timbani Longai v Steven Maken & Ors (2008) N4021;

2. The power to dismiss is discretionary and should be exercised by reference to the purpose for which the Rules is created―that is to ensure judicial review matters are dealt with expeditiously;

3. The Plaintiff has generally prosecuted the matter with dispatch and the failure to file the Motion is an oversight, other documents having been filed and the matter almost ready to be set down for trial;

4. Extension of time of 7 days granted to file the Notice of Motion.

Counsel:

Mr. D. Liosi, for the Plaintiff
Ms. M. Sumbuk, for the Third Defendant

DECISION

26th July, 2011

1. THOMPSON AJ: The State has applied by way of Notice of Motion to dismiss the judicial review proceedings, on the basis that the Plaintiff failed to file the Notice of Motion seeking substantive relief, either within 21 days or at all.

2. Order 16 Rule 5 provides that when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion. Within 21 days after grant of leave, the Notice of Motion shall be allocated a date for hearing by the Registrar.

3. The implementation of this rule has been modified by the introduction of the Judicial Review (Amendment) Rules which provide, inter alia, that immediately after granting leave to apply for judicial review, the judge will issue various directions including directions as to filing of the substantive Notice of Motion, Affidavits, Service of Documents, Fixing a date for Directions Hearings, and so on. It is no longer possible for the Registrar to allocate a date for the substantive hearing, within 21 days of the grant of leave.

4. However, it is still possible for the Plaintiff to file the substantive motion. Although no time limit is actually specified, by implication from Order 16 Rule 5(4), the motion should be filed within 21 days after the grant of leave.

5. I accept the Defendant's submission that "the law is as it is", with a requirement in the Rules that the Notice of Motion be filed effectively within 21 days. However, the law is also that compliance with the requirements of the Rules can be extended or dispensed with entirely.

6. I respectfully agree with the views of the Court in Timbani Longai v. Steven Maken & Ors (2008) N4021 that the filing of the Notice of Motion for substantive review is fundamental, and for that reason, the requirement to file it should not ordinarily be dispensed with. However, the Court's power is discretionary, and in any event, the Plaintiff in this case is not seeking to dispense with the requirement. The Court also has the power to extend the time within which to comply with that requirement.

7. The Court's discretion should be exercised by reference to the purpose for which the Rule is created – that is, to ensure that the judicial review proceedings are dealt with expeditiously. In this case, the Plaintiff has not delayed in prosecuting his case. The decision which is the subject of the review, was only made in 2011, the proceedings were subsequently filed, and leave was granted on 24 February 2011. The failure to file the substantive Notice of Motion appears to have been only an oversight. The Plaintiff has continued to actively prosecute his claim, taking all the steps to progress the matter including the filing of a Statement of Agreed and Disputed Facts, and the matter is almost ready to be set down for hearing.

8. Each case is dependent on its own facts. In this case, the facts are that the Plaintiff has been diligently prosecuting his claim, and getting the matter to the stage where it is almost ready to be set down for hearing. There is no evidence that the failure to file the substantive Notice of Motion has caused any prejudice to any of the Defendants, or that the 4 month period from the due date amounts to inordinate delay. The subject matter of the proceedings raises serious issues to be tried, and the Plaintiff should not lightly be deprived of his right to have the issues determined on their merits.

9. Pursuant to Order 1 Rule 7 and Amended Rules 13.4, the time for compliance with the requirement to file the substantive Notice of Motion, is extended. I make the following orders and directions:

(a) The time for filing the substantive Notice of Motion is extended to 7 days from the date of this Order
(b) The Plaintiff is to pay the 3rd Defendant costs
(c) The Defendants are to file any further Affidavits on which they may wish to rely, by 8 August 2011
(d) The Plaintiff is to serve a draft Index by 15 August
(e) The Defendants are to respond by 22 August
(f) The parties are then to agree and the Plaintiff is to file and serve the Review Books by 2 September
(g) The matter is to return to Court on 5 September 2011 for allocation of a hearing date.

____________________________________________________

Mr. D. Liosi: Lawyer for the Plaintiff
Ms. M. Sumbuk: Lawyer for the Third Defendant