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Abaijah v Schnaubelt [2024] PGNC 101; N10763 (26 April 2024)

N10763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 148 OF 2021

BETWEEN:
ROWLAND CLARKE ABAIJAH
Plaintiff

AND:
HON. WALTER DAVID SCHNAUBELT in his official capacity as Minister for Civil Aviation and Shareholder of National Airports Corporation
First Defendant

AND:
HON RENBO PAITA in his official capacity as Minister for Finance & Planning and Shareholder of National Airports Corporation
Second Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND:
DR ERIC KWA in his official capacity as the Attorney General & Secretary for the Department of Justice & Attorney General as nominal Defendant for & on behalf of the Head of State of Papua New Guinea Grand Chief Sir Bob Dadae
Fourth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
NATIONAL AIRPORTS CORPORATION
Sixth Defendant

Waigani: Purdon-Sully J
2024: 5^th April and 26^th April

JUDICIAL REVIEW - Practice and Procedure – Objection to competency of motion for summary dismissal – Objection based on Order 16 Rule 13 (13)(1) and non-compliance with National Court Rules O.4, r. 49 (8) - Exclusive process and procedure under Order 16 of the National Court Rules – Applicability of other rules of National Court Rules considered – Dispensation of the requirements of the rules considered – Objection to competency upheld

Cases Cited:

Papua New Guinea Cases
Dad’s Investments v Samson [2023] PGSC 134; SC2485
Peter Makeng v Timbers (PNG) Limited [2008] PGNC 78; N3317
Alex Timothy v Hon Francis Marcus (2014) SC1403
Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96; SC2280
Longai v Maken (2008) N4021
O’Neill v Eliakim [2016] PGSC 57; SC1539
Nipo Investment Ltd v Nambawan Super Ltd [2017] PGSC 45; SC1642
Kekedo v Burns Philip [1988-89] PNGLR 122
Geru Holdings Ltd v Kruse [2019] PGNC 134; N7867

Overseas Cases
Coles v Ravensherar [1906] UKLawRpKQB 137; [1907] KB 1

Legislation:
National Court Rules, Orders 4 rr 38, 40(3), 49(12)(1), 16 r 13(13)(1), (2), (4)
Evidence Act 1975
Judicial Review (Amendment) Rules 2005
Motions (Amendment) Rules 2005
Constitution, s155(4)

Counsel
Mr S Wanis, for the Plaintiff
Mr K Kawat, for First and Second Defendants
Mr K Koroka, for Sixth Defendant

DECISION

26^th April 2024

1. PURDON-SULLY J: This is the Court’s decision following a contested hearing as to whether a Notice of Motion filed on behalf of the First and Second Defendants to dismiss the Plaintiff’s judicial review proceedings for want of standing is incompetent and an abuse of process.
   

BACKGROUND

2. The Plaintiff commenced proceedings on 15 October 2021 seeking judicial review of the decisions of the Third Defendant made on 15 July 2021 which revoked the appointment of the Plaintiff as an Independent Director representing the Civil Aviation Industry to the Board of the National Airports Corporation (NAC Board) and appointed another independent director to the board effective 2 November 2021.
3. Leave to review was granted on 9 November 2021 and the matter is currently pending for substantive review.
4. The grant of leave operated as a stay and the Plaintiff has continued in his capacity as independent director to the NAC Board.

BACKGROUND

5. On 21 February 2024 the First and Second Defendants filed a Notice of Motion seeking orders that if made would inter alia dismiss the entire proceedings due to the Plaintiff’s asserted lack of standing.
6. Those orders are opposed by the Plaintiff and the Sixth Defendant who seek the dismissal of the Notice of Motion as an abuse of process.
7. The matter came before the Court on 5 April 2024 at which time I heard both the arguments on competency and summary disposal. It is not necessary to address Counsel for the Plaintiff’s written submissions on the competency of the First and Second Defendants’ Notice of Motion filed 15 February 2024 as the Motion has been withdrawn.
8. At the conclusion of oral submissions, I invited the parties to provide further written submissions addressing the decision of Dad’s Investments Corporation v Samson (2023) PGSC 134; SC2485 with respect to the arguments of the Plaintiff and Sixth Defendant as to the applicability of Order 4 r 49(12) (1) of the National Court Rules (NCR). The Plaintiff filed his submissions on 12 April 2024, the Sixth Defendant on 22 April 2024 and the First and Second Defendants on 23 April 2024.
9. Before I identify the issues for determination some further background is necessary in light of one other issue that was raised with the Court at the commencement of the hearing.
10. On 15 February 2024 the First and Second Defendants filed a Notice of Motion in the following terms:
    1. Pursuant to Order 16 Rule 13(2)(a) and (2(b)(a) (sic) of the National Court Rules the Plaintiff be removed as a party to this proceeding pursuant to Order 5 Rule 9(b) of the National Court Rules as the Plaintiff has ceased to be a proper party.
    2. Alternatively, the entire proceedings be dismissed for Plaintiff’s lack of standing pursuant to Order 12 Rule 1 of the National Court Rules.
    3. Costs of this proceeding be borne by the Plaintiff.
    4. Time to abridge.
    5. Such further or other orders as the Court deems meet.
11. On 21 February 2024 the First and Second Defendants filed a further Notice of Motion in the following terms:
    1. Pursuant to Order 16 Rule 13(13)(1) of the National Court Rules leave be granted to withdraw the Notice of Motion filed 15 February 2024 (Document No 85)
    2. Pursuant to Order 16 Rule 13(13)(2)(a) and Rule 13 (13)(2)b(a) (sic) of the National Court Rules the entire proceedings be dismissed for Plaintiff’s lack of standing.
    3. Costs of this proceeding be borne by the Plaintiff.
    4. Time to abridge.
    5. Such further or other orders as the Court deems meet.
12. On 23 February 2024 the Court made the following order:

The Court Orders that:

1. By consent of the parties the First and Second Defendants Notice of Motion filed 15 February 2024 is hereby withdrawn.
2. Costs of the Withdrawal shall be in the cause.
3. The Notice of Motion filed 21 February 2024 document # 89 shall be heard on 2 April 2024 at 9.30am.
4. Time is abridged
13. The Order was signed on 23 February 2024 by the Judge who made it. It is shown on its face as having been entered on 13 March 2024 by the Registrar. It is an order taken out by Warner Shand, Lawyers for the Sixth Defendant. It is an order which, on its face, match the endorsed order that appears on the file signed by the Judge’s Associate as the order made by the Court that day.
14. At the commencement of the hearing on 5 April 2024, Counsel for the Plaintiff and Counsel for Sixth Defendant contended that the Order was not a proper reflection of the Order made by the Judge on 13 March 2024.
15. Both asserted that Order 1 had not been made by consent. Counsel for the Plaintiff contended that the issue of the withdrawal of the First and Second Defendant’s Notice of Motion filed 15 February remained alive, although Counsel for the Sixth Defendant, while maintaining that the Order with respect to withdrawal had not been made by consent, conceded however that it was an Order made by the Judge in his discretion.
16. I determined that I was entitled to have regard to the terms of the Order before me signed by a Judge of this Court as being an accurate reflection of the orders made in circumstances where the parties adduced no evidence to suggest that the Order was wrong, including by reference to a transcript or any sworn evidence.
17. I proceeded to hear Orders 2 to 5 of the Notice of Motion filed 21 February 2024 in circumstances where:
    1. The Court Order of 23 February signed by a Judge of this Court had been formally entered on 13 March 2024;
    2. The Order was entered by the lawyers for the Sixth Defendant who now raise an issue about its accuracy; and
    100. The Orders were in terms as endorsed by the Judge’s Associate on the Court file.

THE ISSUES

18. There are two issues for the Court’s determination:
    1. Firstly, whether the Notice of Motion filed 21 February 2024 by the First and Second Defendants is incompetent as contended by Counsel for the Plaintiff and Sixth Defendant and should be struck out for being an abuse of process for failure to comply with the NCR; and
    2. Secondly, if the Motion is found to be competent, whether the Plaintiff’s application for judicial review should be summarily dismissed for lack of standing to maintain or sustain the proceedings on the basis that the Plaintiff’s term has now expired, opposed by Counsel for the Plaintiff and Sixth Defendant who submit that the Court can only summarily dismiss a judicial review proceeding under Order 16 r 13(13)(2)(a) on the grounds of incompetence and non-compliance of Court directions, orders and any rules, none of which arise in the circumstances of this case.
       

IS THE NOTICE OF MOTION INCOMPETENT?

19. Turning to the first issue, it is the submission on behalf of the Plaintiff and the Sixth Defendant that the Notice of Motion filed on 21 February 2024 is incompetent and should be struck out because it was filed without a supporting affidavit as required by Order 4 r 49(12) (1) of NCR which provides as follows:

12. Supporting affidavits

(1) All affidavits in support of the Motion must be filed on the date of filing of the Motion;

....

20. It is submitted on behalf of the Plaintiff and Sixth Defendant that the Rules require the Notice of Motion and Affidavit in Support to be filed together and a Motion cannot come empty handed to the Court.
21. It is further submitted by the Plaintiff that the provisions of Order 4 r 40(3) were not complied with as the Notice of Motion is required to be in Form 11 and it does not provide for a notice as to reliance upon an affidavit to be attached to the Notice of Motion.
22. It is further submitted on behalf of the Sixth Defendant that if it was intended to rely upon a previous affidavit then Notice is required under s 35 of the Evidence Act 1975 which inter alia provides that:

AFFIDAVIT EVIDENCE ON NOTICE.

(1) Where a party to or a person interested in any legal proceedings before a tribunal to which this Division applies desires to use in the proceedings an affidavit by a witness concerning particular facts as to which no order under Section 34 has been made he may, not less than five clear days before the hearing, give notice, accompanied by a copy of the affidavit, to the party or person (if any) against whom it is to be used that he desires to do so.

.....

23. Further, if the Court took a restrictive stance to the application of Order 16 then the Notice of Motion filed 21 February 2024 has no jurisdictional basis since the form is not provided for under Order and contains features provided under the Evidence Act.
24. It is submitted by Counsel for the First and Second Defendants, in their supplementary submissions filed on 23 April 2024, that the preliminary objection on competency grounds should be dismissed as an abuse of process as Order 4 r 38 of the NCR has no application to judicial review proceedings under Order 16. The oral submissions made by Counsel for the Plaintiff and Sixth Defendant on 5 April 2024 and their supplementary submissions filed thereafter make clear, however, that their primary competency complaint is grounded in the First and Second Defendant’s non-compliance with Order 4 r 49(12), namely their failure to file an affidavit in support of their Motion ‘on the date of the filing of the Motion’.
25. With respect to the relevant legal principles, it is settled law in this jurisdiction that judicial review proceedings are completely and exhaustively governed by the provisions of Order 16 and that applications for judicial review and any issue as to its competence, summary dismissal and any other issue must be taken in accordance with the procedures provided thereunder (Peter Makeng v Timbers (PNG) Limited [2008] PGNC 78; N3317 (Makeng); Alex Timothy v Hon Francis Marcus (2014) SC1403; Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96; SC2280; Dad’s Investments Corporation v Samson (2023) PGSC 134; SC2485 (Dad’s Investments Corporation)).
26. Order 16 r 13 (13)(1) and (2) of Judicial Review (Amendment) Rules 2005 relevantly provides:

(1) Motion

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.

b. The Court may summarily determine a matter:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(iii) upon referral by the Registrar in accordance with the procedure set out in (3) below.

......

27. By virtue of Order 16 r 13 (13)(1) the practice and procedure with respect to Motions as prescribed by the NCR in ordinary civil proceedings apply to Order 16. The Motion Rules in the NCR were amended by the Motions (Amendment) Rules 2005. Those rules appear at Order 4 r 49 of the NCR. They address inter alia the form, signing, filing, service and content of Motions. Order 49 rule 12(1) requires the filing of an affidavit in support on the date of filing of the Motion. Failure to comply with this Rule renders the Motion or the orders sought in the Motion incompetent. It can be struck out or dismissed for this reason alone (Longai v Maken (2008) N4021 per Injia CJ at [7] cited with approval in O’Neill v Eliakim [2016] PGSC 57; SC1539 (Kandakasi, Hartshorn & Kassman JJ) at [13]).
28. It is a conclusion that, in my respectful view, does not offend well-established authority on the exclusive nature of judicial review, including the recent Supreme Court decision in Dad’s Investments Corporation (Kandakasi DCJ, Murray & Kangwia JJ) which reinforced the relevant principles at [7] that require any issue of competency, summary dismissal or any other issue to be taken in accordance with the processes and procedures in Order 16 and that ‘the other provisions in the National Court Rules do not apply to judicial review proceedings’.
29. It is a conclusion supported by a reading of the purpose of the Judicial Review (Amendment) Rules 2005. Order 16 r 13 relevantly says:

Purpose

The purpose of these Rules is to prescribe procedures for the conduct of judicial review cases in the National Court with the establishment of a separate Judicial Review List...... As from the date of coming into operation of these Rules, all previous practice directions and notes on judicial review will cease to apply. These Rules are intended to improve the disposition of judicial review cases in the National Court in a quick, fair and cheap manner.

These Rules are intended to be read consistently with the judicial review procedures contained in Order 16 of the National Court Rules.

[Emphasis added]

30. While outlining the provisions of Order 16 r 13(13) at [9] of supplementary written submissions dated 11 April 2024, learned Counsel for the First and Second Defendants does not engage with subrule (1) of Order 16 r 13(13) that adopts with respect to Motions the procedures prescribed by the NCR and which grounds the issue of competency raised by the Plaintiff and Sixth Defendant within Order 16. The Court was directed to no other provision within Order 16 that otherwise addresses the practice and procedure of interlocutory applications made by Motion.
31. It cannot be challenged that in the present case the First and Second Defendants’ Notice of Motion filed 21 February 2024, which is the Notice that is moved before the Court, was filed without a supporting affidavit at the time of filing to substantiate the grounds to dismiss the entire application. It is submitted however on behalf of the First and Second Defendant that Notice was given to the parties in the Notice of Motion filed 21 February 2024 in the following terms:

TAKE NOTICE THAT: The First and Second defendants will rely on the Affidavit in Support of Hon Walter David Schnaubhelt filed on 15 February 2024 (Document #86).

32. I am not persuaded that that notice absolves the First and Second Defendants’ need to strictly comply with the relevant NCR which is in mandatory terms. No persuasive authority was advanced in support of the submissions advanced.
33. No application for dispensation of the Rules was made either under Order 16 r 13 (14) which enables the Court to dispense with any requirements of ‘these Rules’ in an appropriate case or under Order 1 r 7 and r 8 of the NCR which empower the Court in appropriate cases to dispense with the strict compliance with the Rules to do justice on the substantive merits of the case, as complimented by s 155(4) of the Constitution. I am unable to conclude that this is an appropriate case to dispense with the requirements of the relevant Rule.
34. I acknowledge authority that has said that “the rules of practice to the work of justice is intended to be that of handmaid rather than mistress...” (Coles v Ravensherar [1906] UKLawRpKQB 137; [1907] KB 1 per Esher MR). Decisions of the Supreme and National Courts in this jurisdiction have reinforced the principle that the Rules are only a means to an end, not an end in themselves, and that the Court should always be looking to do justice on the merits of the case and not necessarily compliance or non-compliance with the Rules (Church of Jesus Christ of Latter Day Saints Inc v Kimas (supra) at [14] - [17]). Further, not every departure from the Rules suggests unfairness. That said, the Rules exist for good reason. This Court is increasingly tasked with dealing with applications involving the interpretation of and/or dispensation of the Rules in a variety of circumstances that are asserted to warrant flexibility in their application, often promulgated within the narrative of the dictates of the “justice of the matter”. The Rules of orderly procedure, however, are designed to safeguard the fairness of the proceedings. The Rules enable a busy Court, in the 21^st century, to effectively manage its ever-increasing workload in a manner that ensures proportionality, and that cost and delay are reduced, a stated purpose of the Judicial Review (Amendment) Rules 2005 as earlier outlined.
35. In Nipo Investment Ltd v Nambawan Super Ltd the Court (Murray, Collier, Geita JJ) said at [9]:

.... While the strict application of the relevant rule can lead to what may appear to be a harsh result, the need for parties to comply with Rules of Court is not an exercise in pedantic technicality. The Rules ensure that the difficult and often complex process of litigation occurs in an ordered manner, meeting the expectations of the Court and all parties. .....

36. In my respectful view the importance of compliance with the particular Rule under consideration is underscored by the peculiar and restrictive nature of proceedings under Order 16 and the procedures that have been developed to that end. In Makeng (supra) at [16], Injia DCJ (as he then was) said:
    16. Judicial review is a special procedure developed by the Courts to deal with complaints by persons aggrieved by decisions made by public administrative bodies and persons exercising public power conferred by statute. It is discretionary. Ordinarily it is not the Court’s function to intervene in administrative functioning of statutory authorities except in cases where the statutory authority has committed a legal error. Judicial review is restrictive and this is achieved in several ways:
        1. by prescribing comprehensive and exhaustive rules of practice and procedures which inter alia confers jurisdiction to review administrative acts in strict and mandatory terms;
        2. by restricting the grounds in which judicial review is available: (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122;
        100. by prescribing special types of relief in nature of prerogative orders which are available in judicial review;
        4. exercising the discretion under the rules is restrictive.
37. For the reasons outlined I have concluded that the issue of competence as raised on behalf of the Plaintiff and Sixth Defendant is one properly raised, the provisions of Order 4 r 49(12) (1) of the NCR adopted and having application to Order 16 by virtue of Order 16 r 13(13)(1) of the Judicial Review (Amendment) Rules 2005.
38. The provisions of Order 4 r 49(12)(1) are couched in mandatory terms. The requirements of the Rule have not been met. The First and Second Defendants did not file an affidavit in support at the date of filing of the Notice of Motion instead relying on an affidavit earlier filed in support of a Notice of Motion now withdrawn (see Geru Holdings Ltd v Kruse [2019] PGNC 134; N7867 at [10.6]).
39. In the result, the Notice of Motion filed on 21 February 2021 is incompetent. It is an abuse of process and should be dismissed.
40. Having so found, it is not necessary to consider the other arguments raised on behalf of the Plaintiff and Sixth Defendant in support of dismissal of the Motion filed 21 February 2024.
    

ORDERS

41. The Courts orders are:
    1. The Notice of Motion of the First and Second Defendants filed on 21 February 2024 is dismissed for being an abuse of process.
    2. The First and Second Defendants pay the costs of the Plaintiff and Sixth Defendant on a party and party basis, to be taxed if not agreed.

________________________________________________________________
Solomon Wanis: Lawyers for the Plaintiff
Kawat Lawyers: Lawyers for the First and Second Defendants
Warner Shand: Lawyers for Sixth Defendant