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Gitua v Manning [2024] PGNC 207; N10873 (3 July 2024)

N10873

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 138 OF 2023

BETWEEN:
CHIEF INSPECTOR P4619 TIMOTHY GITUA
Plaintiff

AND:
DAVID MANNING
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Purdon-Sully J
2024: 13^th June, 3^rd July

PRACTICE & PROCEDURE – JUDICIAL REVIEW – Objection to competency of application for substantive review –Notice of Motion fails to detail reliefs sought – Proceedings incompetent – Application dismissed.

Cases Cited:
Papua New Guinea Cases

Wilson v Kuburam [2016] PGSC 7; SC1489
Breckwoldt & Co. (N.G.) Pty v Gnoyke [1974] PNGLR 106
PNG Forest Products and Inchcape Berhad v The State & Jack Genia, Minister for Forests [1972] PNGLR 85
Nae Ltd (1-21320) v Curtain Bros Papua New Guinea Ltd [2015] PGNC 229; N6124
National Executive Council v. Public Employees Association [1993] PNGLR 264
The State v. Peter Painke [1976] PNGLR 210
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Timbani Longai v Steven Maken & The State [2008] N4021
Vingome v Dialla [2014] PGNC116; N5710
Innovest v Pruaitch [2014] PGNC; N5969

Overseas Cases

Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529

Legislation:

National Court Rules, Order 16 Rule 5

Counsel:

G Konjib, for the Applicant
Z Rekeken, for the First and Second Respondents

DECISION

3rd July 2024

1. PURDON-SULLY J: This is a substantive application for judicial review, the Plaintiff, a police officer, seeking pursuant to Order 16 Rule 5 of the National Court Rules (NCR) review of a decision of the First Defendant made on 22 August 2023 transferring him from his then current position as Acting Superintendent – Deputy Director of Fraud & Anti-Corruption Directorate to the position of Police Station Commander to Popondetta (Decision).
2. At the time of the transfer the Plaintiff had held the Deputy Director position for 10 years.
3. The Plaintiff received the Transfer Directive issued by the First Defendant on 19 October 2023. In an internal minute titled “Immediate Transfer of Commissioned Officers” authored by the First Defendant, the Plaintiff was one of eighteen (18) other police officers who were transferred to new postings.
4. His request to remain in his then position was denied.
5. On 1 December 2023 the Plaintiff filed proceedings seeking leave of the Court to apply for judicial review of the Decision.
6. On 20 December 2023 leave was granted by another Judge of this Court.
7. On 14 February 2024 his application for a stay was refused.
8. On 14 March 2024 the Plaintiff filed a Notice of Motion.
9. The substantive application for judicial review was heard on 8 May 2024 the decision reserved pending the receipt of further written submissions of the parties.
10. The Plaintiff seeks by way of relief that the Decision be quashed, such that he remains in his position as Acting Superintendent – Deputy Director of Fraud & Anti-Corruption Directorate and costs. He asserts that in making the Decision the First Defendant exceeded his powers, took into account irrelevant considerations, the Decision was unreasonable based on the Wednesbury principles of unreasonableness and that it breached s 59 of the Constitution.
11. His application is opposed by the Defendants who submit that there was no fault in the Decision to transfer, the Decision was made in good faith. They however raise a preliminary question to be decided and that is whether the Notice of Motion filed 11 March 2024 (the Notice) is competent.
12. With respect to the competency issue, it is contended on behalf of the Defendants that the Notice does not satisfy the requirements of Order 16 Rule 5 of the NCR to plead the substantive reliefs sought in judicial review. It is therefore defective and must be dismissed as incompetent.
13. It is contended on behalf of the Plaintiff inter alia that:
    1. There were no orders made as to the further conduct of the matter upon the grant of leave, the Plaintiff not assisted by Court orders, the Court not expressly issuing orders as envisaged by Order 16 Rules (1), (2) and (3) of the NCR, the Plaintiff simply filing a Notice for substantive review relying on the Statement of Support which details the relief sought as part of the document for substantive review and the reliefs sought for in the Plaintiff’s Statement in Support should be read in the context of the Notice for substantive reliefs and be granted.
    2. The Defendants should be restricted from raising this issue belatedly the Court having a wide discretion to allow the Plaintiff’s Notice to remain rather than be driven from the judgment seat because he was not assisted with the orders made by the Court after grant of leave.

CONSIDERATION OF PRELIMINARY ISSUE

14. The issue of competency based on an abuse of process, here an asserted failure to comply with Order 16 Rule 5 of the NCR, can be raised at any stage of the proceedings. While in this case the issue of competency was not raised at the substantive hearing rather in further written submissions filed at the direction of the court following that hearing, having been raised and having been addressed fully by both parties in their further submissions, the Court in the exercise of its inherent power to protect its processes being abused should decide the issue (Wilson v Kuburam [2016] PGSC 7; SC1489, the Court (Gavara-Nanu & Bona JJ) citing with approval Breckwoldt & Co. (N.G.) Pty v Gnoyke [1974] PNGLR 106 and PNG Forest Products and Inchcape Berhad v The State & Jack Genia, Minister for Forests [1972] PNGLR 85 and Nae Ltd (1-21320) v Curtain Bros Papua New Guinea Ltd (1-1815) [2015] PGNC 229; N6124).
15. If the Court process is used in an improper way it can impact the rights of the other party to a fair hearing and determination and otherwise bring the administration of justice into disrepute (National Executive Council v. Public Employees Association [1993] PNGLR 264; The State v. Peter Painke [1976] PNGLR 210; Wilson v Kuburam [2016] PGSC 7; SC1489 at [25]; see also Hunter v Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529 per Lord Diplock at page 1).
16. The Court’s obligation to remain vigilant in ensuring compliance with the rules of Court is underscored by not only the significant increase in applications for judicial review before it but the peculiar and restrictive nature of the proceedings under Order 16 and the procedures that have been developed to that end. When litigants choose to institute proceedings for judicial review they should be aware of the unique nature of the proceedings and the requirements that must be met. In Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 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.

[Emphasis added]

17. In a recent case when discussing the issue of compliance with the NCR I made the following observations applicable to the current matter which can be repeated here:^[1]

....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.....

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. .....

18. Order 16 Rule 5 (1) of the NCR provides:

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

19. Filing a notice of motion under Order 16 Rule 5 is a prerequisite to an application for judicial review and cannot be dispensed with in the event of default (Timbani Longai v Steven Maken & The State [2008] N4021 followed in Vingome v Dialla [2014] PGNC 116;N5710 (Vingome) at [6]).
20. A notice of motion seeking substantive relief under r 5 (1) should plead the decision to be reviewed and the jurisdictional basis of the Court to hear the application. The motion should also plead the relief sought as in an ordinary notice of motion. The relief sought should include or cover all the relief sought in the Statement in Support (Innovest v Pruaitch [2014] PGNC; N5969 at [44]).
21. The Plaintiff’s Notice fails to meet these significant procedural and jurisdictional requirements thus rendering the Notice incompetent. It is in the following terms:

TAKE NOTICE that the Plaintiff will on ...... day of ........2024 at 9.30am at Waigani National Court move the honourable court for orders that Pursuant to Order 16 Rule 5 of the National Court (sic), this proceedings be tried at the National Court in Waigani, National Court District.

22. The defects are not remedied, in my respectful view, by the Originating Summons or as submitted on behalf of the Plaintiff by the Statement of Support pursuant to Order 16 Rule 3(2)(a) of the NCR which includes the relief sought by the Plaintiff in the event of the granting of leave. These were documents formed part of the application for leave for judicial review. Leave has been granted. The notice of motion however is one that seeks to invoke the judicial review power of the Court to review the exercise of power by the relevant administrative authority and make the orders sought therein by way of relief.
23. That defect alone is fatal to the Plaintiff’s application because if the review was upheld there is no relief pleaded to be made in the Notice (Vingome (supra) at [8]). It is a defect that cannot be remedied by amendment at this late stage in the proceedings.
24. It is submitted on behalf of the Plaintiff that the Court is not bound by the principles in Vingome, however no cogent argument was advanced as to why that authority should not be followed or why the reasoning of Makail J at [6] and [8] in particular, should not be viewed as persuasive and on point with the issue before me.
25. It is, respectfully, no answer to such a significant defect, for the Plaintiff to contend that he was not assisted by the Court with orders after the grant of leave (see [8.27] of further written submissions filed 13 June 2024). The Plaintiff’s submissions are not persuasive. It is the Plaintiff who prosecutes his case for the orders he seeks. The Court is not in the position of nursemaid. While on the grant of leave it is usual for an order to be made that a notice of motion be filed, these matters can be overlooked by a Judge on a busy Court day when a number of matters are before the Court. Over and above the duty to move their client’s case forward in accordance with the procedures under Order 16 of the NCR, lawyers, as officers of the Court, are there to assist the Court in its work. If the Court through oversight neglects to make an order that should be made, it should be raised by the lawyer. The Plaintiff advances no explanation why he did not do so either on the granting of leave or at any time thereafter when the matter was before the Court.
26. I have perused the orders made by the Court. Leave was granted on 20 December 2023. The matter was again before the Court on 14 February 2024 on the hearing of the Plaintiff’s motion for a stay. It returned to Court for directions on 19 February 2024 and again for directions on 7 March 2024 when orders were made for the filing of affidavits and the service of notices under the Evidence Act. Further directions at the request of the parties by way of draft consent orders handed to the Court were made on 8 April 2024 when the matter was listed for substantive hearing. In short there was sufficient opportunity for the Plaintiff to raise the matters he raises now in written submissions with respect to the Court’s failure to make an order to file a notice of motion.
27. Having then determined the need to file its Notice, which it did on 11 March 2024 without a formal order, and, if necessary, address at a later date any issue about doing so without formal order, there is no explanation why the Notice did not then meet the requirements of Order 16 Rule 5. The Plaintiff appears to have dipped his toe in the water without being prepared to dive in.
28. For the reasons given this ground is upheld and the proceedings dismissed for being incompetent.
29. It is accordingly not necessary to consider the other arguments advanced on the submissions.

ORDERS

30. In consequence, the Court makes the following orders:
    1. The Notice of Motion filed 11 March 2024 and application for judicial review be dismissed.
    2. The Plaintiff to pay the costs of the Defendants to be agreed or taxed.
    3. Time to Abridge.
       

________________________________________________________________
Konjib & Associates: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the First & Second Defendants

^[1]Abaijah v Schnaubelt & Ors [2024] PGNC 101; N10763