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Yanasa v Talakan [2017] PGNC 97; N6737 (26 May 2017)

N6737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 616 OF 2016

BETWEEN:

SEBASTIAN YANASA for and on behalf of the SOLGAS Family of Lihir Island
Applicant

AND:
PAULA TALAKAN for and on behalf of NAPKIA Family of Lihir Island
First Respondent

AND:
JEROME MISREN for and on behalf of the MINAI Family of Lihir Island
Second Respondent

AND:
PIOUS TAPIL, PIUS TAMGEL,
ALOIS BOSLE sitting as the Lihir Local Land Court
Third Respondent

AND:
PATRICK BAIWAN sitting as the New Ireland Provincial Land Court
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Kokopo: Anis AJ
2017: 19^th & 26^th May

JUDICIAL REVIEW – Court issued direction -- application for judicial review filed outside the date ordered by the Court - Order 16 Rule 5 and Order 16 Rule 13(5)(1) of the National Court Rules considered - consequences for want of compliance discussed

Case cited:

East New Britain Provincial Government v. Public Service Commission Chairman, Dr Phillip Kereme and Jack Kavie (2017) N6706
Peter Makeng v. Timber (PNG) Ltd (2008) N3317
Alex Timothy v. Hon Francis Marus (2014) SC1403
Joshua Kalinoe v. Paul Paraka (2014) SC1366

Counsel:

Mr J Amnol, for the Applicant
Mr P Kaluwin, for the 1^st Respondent
Ms E Takoboy, for the 3^rd, 4^th& 5^th Respondents

RULING

26^th May, 2017

1. ANIS AJ: This is a judicial review matter. On 10 March 2017, the matter came before me for mention. It became apparent then that the applicant had filed his notice of motion for judicial review outside the time as ordered by His Honour Justice Makail on 6 October 2016.

2. I then issued directions including this, Parties to also prepare written submissions and appear to assist the Court on the issue, that is, what is the legal consequence given that the applicant has filed his substantive motion outside the time ordered by the Court on 6 October 2016 (Court Direction).

3. The matter was adjourned to 9:30am on 21 April 2017 and on a number of occasions. It was finally set down for hearing to address the Court Direction at 9:30am on 19 May 2017. The parties filed written submissions and presented oral submissions. All the parties attended except for the second respondent. I had noted that but ordered the matter to proceed as scheduled. This was after I was satisfied that the second respondent had been given ample time to prepare but had not done so or filed any written submission. I also noted in my brief ruling that counsel for the second respondent was present in Court on 5 May 2017 when the matter was fixed for hearing in relation to the Court Direction by the consent of the parties.

4. After hearing and receiving submissions from the parties, I reserved my ruling to today at 9:30am.

5. I rule on it now.

LEAVE

6. The applicant commenced proceeding for leave to apply for judicial review on 19 September 2016. The proceeding commenced at the Waigani National Court. His Honour Justice Makail granted leave to apply for judicial review on 6 October 2016. His Honour also issued various interim orders and Court directions. The Court Order reads:

1. Leave is granted to the plaintiff to apply for judicial review of the fourth respondent's decision of 23^rd June 2016.
2. The decision of the fourth respondent is stayed until further order.
3. A further order restraining the first respondent from carrying out any activities on the disputed customary lands, Matatal (Block 16) and (Block 75) customary land in Kapit area, Lihir Island, New Ireland Province or receiving and benefiting from any royalty money paid by Lihir Gold Limited over the disputed lands until further order.
4. A further order that the first respondent disclose any or all money/ies paid by Lihir Gold Limited and remit such monies paid so far and such royalties paid hereunder to the National Court Trust Account and to be held in Trust until further order.
5. The plaintiff shall file and serve a notice of motion pursuant to Order 16, Rule 5 of the National Court Rules within 21 days from today.
6. The matter is transferred to Kokopo National Court for directions hearing/inter-party hearing on a date and time to be fixed.
7. Parties are at liberty to apply on three clear days notices.
8. Time is abridged.
   

ISSUE

7. The issue of course is in the Court Direction, that is, what is the legal consequence given that the applicant has filed his substantive motion outside the time ordered by the Court on 6 October 2016?

IS THERE A JUDICIAL REVIEW PENDING?

8. I had asked the question Is there a judicial review pending before this Court, to counsel before I issued the Court Direction. I asked the same question during the hearing when I received submissions from counsel.

9. Order 16 Rule 5 (1)(3) and (4) of the National Court Rules state as follows:

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.

....

(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 of hearing by the Registrar after consultation with the parties.

10. A notice of motion for judicial review under Order 16 Rule 5(1) is not an ordinary notice of motion like say for example those that are used to seek interlocutory relief. An Order 16 Rule 5(1) notice of motion, in my view, is equivalent to an originating process. Once filed, it will invoke the second set of the judicial review proceeding under Order 16. I have explained that in a recent decision in the case East New Britain Provincial Government v. Public Service Commission Chairman, Dr Phillip Kereme and Jack Kavie (2017) N6706. At paragraph 20 of my judgment, I said:

20. Let me illustrate. Judicial review has two sets of proceedings. The first set of proceeding is to seek leave and the vehicle or platform for that is an originating summons [Order 16 Rule 3(2)]. The second set of proceeding is to seek judicial review and the vehicle or platform for that is a notice of motion [Order 16 Rule 5(1)]. The two (2) documents (i.e., originating summons and notice of motion) under the two (2) sets of proceedings will bear the same court file number. I think this is where most confusion arises between counsel and litigants. They think or are under the impression that because the Court file numbers are the same, the two sets of judicial review proceedings (i.e., first commenced by originating summons and second by notice of motion) is actually one Court proceeding that is divided into two stages. That understanding, in my opinion, is wrong. In my view, the correct understanding should be this. An originating summons and a substantive notice of motion filed in a judicial review are related but are two distinct originating processes. They are linked together by the provisions under Order 16 of the National Court Rules. The Supreme Court in Alex Timothy v. Hon Francis Marus (supra) held on point at paragraph 17 of its judgment. I quote in part where it said, In an Order 16 Originating Summons, a prospective applicant for judicial review must firstly obtain leave to pave the way for the judicial review. If leave is granted, the Originating Summons is then determined. As is the mandated process, once leave is granted, the action is then commenced by an application for judicial review by way of a Notice of Motion. Upon grant of leave for judicial review and upon filing a notice of motion instituting the substantive application, the Originating Summons has already been determined. It is wrong to seek to apply to dismiss the Originating Summons as if it were still alive and pending to be tried. (Bold lettering is mine).

11. The Supreme Court in Alex Timothy v. Hon Francis Marus (2014) SC1403, in my view, clearly distinguishes an originating summons for leave to apply for judicial review and a notice of motion for judicial review.

12. When I look at the facts of the present case, the applicant has been granted leave to apply for judicial review. However, he did not file his notice of motion for judicial review within the time as directed by the Court. What does this mean? In my view, the Court that issued the directions after the grant of leave did so pursuant to Order 16 Rule 13(5)(1) of the National Court Rules. The said rule reads:

5. Directions to be issued at time of grant of leave

Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following:

(1) Filing of Notice of Motion and supporting affidavits under Order 16 rule 5 (1).

13. So at that time, the Court that sat and dealt with the leave application had assumed jurisdiction based on the originating summons that was filed by the applicant under Order 16 Rule 3(2) of the National Court Rules. That is, the Court heard the applicant's application for leave to apply for judicial review ex-parte. And upon being satisfied, the Court exercised its powers including those under Order 16 Rule 13(5)(1) of the National Court Rules.

14. Bearing this in mind let me now consider the applicant's breach of term 5 of the Court's direction. I have considered the case law regarding compliance with Order 16 Rule 5. I am unable to find a specific Supreme Court case on point in this jurisdiction that says that it is mandatory that an applicant shall or must file its notice of motion within 21 days after leave is granted. Order 16 Rule 5(1) simply states that once leave is granted, the application shall be made by Notice of Motion to the Court. The Supreme Court in the case Joshua Kalinoe v. Paul Paraka (2014) SC1366 on point at paragraph 26(3) simply states, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5). It does not put an express timeframe or duration as to when the notice of motion must be filed. I also refer to Order 16 Rule 13(5)(1). The judge therein is required to issue directions including for the filing of the notice of motion for judicial review. But again, no specific timeframe is set as to when the notice of motion must be filed. In practice, Courts have adopted the period of 21 days for filing a notice of motion based on assumptions drawn from Order 16 Rule 5. There are of course good reasons for that given the very nature of judicial review proceedings. Public interest requires judicial review proceedings to be disposed off without delay. The judicial review rules are of course designed or tailored to achieve that.

15. Given these, I will make my findings as follows. I find firstly that the Court Order of 6 October 2016 continue to exist and is binding. I find that the applicant has obviously breached term 5 of the Court Order. I find that failure to comply with the said Court direction is a breach of a Court Order but it is not fatal given that leave which is the substantive order in the originating summons in the first set of judicial review proceeding has been granted by the Court and which still remains.

16. I find that there is no substantive notice of motion that is pending in this judicial review. I find that the notice of motion that was purportedly filed by the applicant outside the required time than as directed by the Court is invalid or void.

17. But I am of the view and find that the applicant has the option to apply back to the same Court that has granted him leave and directions, and request for extension of time or extension of term 5 of the Court's direction of 6 October 2016, to file his notice of motion for judicial review. The source for such an application may be Order 16 Rule 13(5) or perhaps Order 16 Rule 14 of the National Court Rules, that is, besides other provisions or laws the applicant may wish to invoke.

18. For the respondents, given my findings that the judicial review has effectively not left the first stage of the judicial review proceeding, or given that there is no substantive judicial review on foot, there is little they could do. Their rights in the matter, in my view, are limited to the second set of the judicial proceeding, which has not commenced. Following the principles held in the case Peter Makeng v. Timber (PNG) Ltd (2008) N3317 which was later approved by the Supreme Court in the case Alex Timothy v. Hon Francis Marus (supra), I find that the respondents cannot file any application or be heard in regard to the matter as it is unless and until there is a substantive notice of motion for judicial review filed. This of course will include the applicant firstly to being able to file and serve the substantive notice of motion following the requirements under Order 16 Rule 5 of the National Court Rules.

19. But should the respondents intend to be heard in relation to the first set of the judicial review proceeding, they should follow the requirements under Order 16 and seek leave of the Court to be heard.

SUMMARY

20. I find that there is no substantive judicial review pending before this Court. At the same time, I find that the Court Order of 6 October 2016 is binding. I also find that if the applicant has an issue with any of the terms of the Court Order of 6 October 2016, it is at liberty to apply back to the same Court that granted the orders for assistance.

COSTS

21. I will not make any order on costs against any party. It is obvious that the issue concerned was raised by the Court which has now being dealt with.

THE ORDERS OF THE COURT

I will make the following orders:

1. There is no application for judicial review proceeding pending before this Court.
   
2. I make no order as to costs.
   
3. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.

____________________________________________________________
Livingstone Legal: Lawyers for the Applicant
Office of the Public Solicitor: Lawyers for the First Respondent
Office of the Solicitor General: Lawyers for the Third, Fourth & Fifth Respondents