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Fayana v Waipo [2022] PGNC 344; N9833 (18 August 2022)

N9833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 765 OF 2014

FRANCIS FAYANA
Plaintiff
V

MICHAEL WAIPO COMMISSIONER FOR CORRECTIONAL SERVICES
First Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Miviri J
2022: 17^th & 18^th August

PRACTICE & PROCEDURE – Judicial Review – Amended originating summons – No Basis Order 16 NCR – No Jurisdiction – Order 16 Rule 5 Notice of Motion – No Action in Law – Dismissal of Proceedings – Cost follow event.

Cases Cited:

Attorney General v Hamidian-Rad [1999] PNGLR 444
Timothy v Marus [2014] PGSC 50; SC1403
Longai v Maken [2008] PGNC 253; N4021
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

L. Giyomwanauri, for Plaintiff
V. Gonduon, for Defendant

DECISION

18^th August, 2022

1. MIVIRI, J: This is the decision on the Plaintiff’s further amended originating summons of the 22^nd August 2016. He obtained leave on the 09^th September 2016 by originating summons filed in accordance and in compliance of Order 16 Rule 3 of the Rules.
   
2. What should now be before the court will be the Substantive notice of motion filed in accordance with Order 16 Rule 5 which is in the following terms:
   

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 of 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.”

3. This is clear language and dictate that the application for Judicial review shall be made by notice of motion. Which is not the same as an originating summons let alone an amended originating summons relied here for relief. Which is the case here in respect of the plaintiff’s cause of action. He has not instituted it by a notice of motion in accordance and in fulfilment of the order and rule set out above. Rather he has instituted by an amended originating summons. There is no jurisdictional basis for instituting as he has done. It means his action is without any basis to see out the remedies that he seeks. Because Judicial Review is specifically instituted and governed by Order 16 and case law, Attorney General v Hamidian-Rad [1999] PNGLR 444 (27 August 1999) and Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014), details this out explicitly. In summary judicial review is drawn out for its jurisdiction upon Order 16. It is peculiar and of its own by that order not without. Judicial review stems from it. There is no resort to other provisions of the National Court Rules where Judicial review is involved. Which is reaffirmed by this court with approval in Longai v Maken [2008] PGNC 253; N4021 (18 September 2008). It is even well set out in the case of Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The process and procedure is well illuminated there. Which is not the facts and circumstances here initiated by that order 16 Rule 5 of the Rules. There is no substantive notice of motion to detail the cause that the plaintiff seeks.
   
4. Because the facts relied on here are that the plaintiff was attached to the office of the Minister for Correctional Services as a driver responsible for the Ministers support vehicle. He was appointed as liaison Officer serving with the Minister for 10 years. On the 06^th July 2009 the Ministers support vehicle was in service and so the First Secretary arranged a hirer vehicle from Pishon Hire Cares. The subject vehicle was given to the plaintiff in the afternoon of that day purposely for escorting the Minister. And which plaintiff fulfilled by escorting the Minister to Point Restaurant and later to his house at Gerehu Stage 2 around 2.30am.
   
5. On the next day Plaintiff was on his way to pick the first secretary to the Minister and the Minister to take them to their offices. When he was involved in an accident around 9-mile market up the hill towards Erima on the Hiritano Highway in Port Moresby. He was charged for that traffic offence but matter was struck out for want of prosecution. The first secretary to the Minister wrote to the director of Finance of the Department of Correctional Services for the cost of the damages to the vehicle to be met by the office. To which the Commissioner of CIS, Richard Sikani responded the Plaintiff would be personally liable and would pay the sum of the repair K 45, 186.00 from his fortnightly pay at K 128.65 every fortnight. He was aggrieved and therefore sought judicial review of the actions of the Commissioner surcharging him for the sum incurred as a result of the Accident.
   
6. These facts analysed with the law set out above do not bring the action that the plaintiff has instituted within the terms of Order 16 of the Rules. An Amended originating summons is not part of the institution process that Order 16 Rule 5 calls for. There is no amended originating summons set out by order 16 pleading for judicial review. He does not have the jurisdiction basis to bring his cause of action within. As there is no jurisdiction his action fails because his pray is without the legs to bring his cause of action into the hand of Justice. The consequence due is dismissal of this action forthwith with costs following the event.
   
7. It is not necessary to go into the merits of the cause as there is no jurisdiction to determine the matter. For all its worth the Rules of the Court give the basis without which there is no cause before the court. That is the case of this action. It has not complied instituted in accordance with the Rules and has no life to be determined.
   
8. The formal orders of the Court are:
   
   • (i) Judicial review is not made out by the plaintiff.
   • (ii) The amended originating summons is dismissed forthwith.

(iii) The Plaintiff shall pay the costs of and incidental to this proceeding to be taxed if not agreed.

Orders Accordingly.
__________________________________________________________________
Office of the Public Solicitor: Lawyer for the Plaintiff/Applicant
In house Lawyer Corrective Institution: Lawyer for First Defendants