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Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014)

N5949

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 64 OF 2014

BETWEEN:

INNOVEST LIMITED
Plaintiff

AND:

HON. PATRICK PRUAITCH, MINISTER FOR FORESTS AND CLIMATE CHANGE
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Gavara-Nanu, J
2014: 11 & 17 March

JUDICIAL REVIEW – Practice & Procedure – Application for leave for judicial review – National Court Rules, Order 16 rr 3, 4 and 5 – Originating Summons - Statement in Support - Notice of Motion – Pleadings – Need to plead leave and the decision to be reviewed in the Originating Summons and the Notice of Motion– Substantive Notice of Motion – National Court Rules, Order 16 r 5 – Power of the Court on leave applications.

JUDICIAL REVIEW – Practice and Procedure – National Court Rules; Order 16 rr (1) and (2) – Types of cases for which an application for judicial review may be made – Notice of application for leave for judicial review to the Secretary for Justice – Mode of services for such notice – Commencement of an application for judicial review.

JUDICIAL REVIEW – Practice & Procedure - Power of the Court to grant interim relief before the grant of leave – Circumstances in which such interim relief may be granted – Primary right of the plaintiff – Onus on the plaintiff to show that the grant of an interim relief before grant of leave is warranted – Circumstances in which requirements of Order 16 r 3 (8) of the National Court Rules may be dispensed with – Power of the Court to invoke Order 1 rr 7 and 8 of the National Court Rules and s. 155 (4) of the Constitution.

Cases cited

Papua New Guinea Cases

Application by Jeffery Balakau [1998] PNGLR 437
Application by John Mua Nilkare [1998] PNGLR 472, SC536
Application by Joseph Kintau (2011) SC1125
Avia Aihi v. The State (No.1) [1981] PNGLR 81
Bank South Pacific Limited v. Robert Tngke (2012) N4901
David Tapale v. Secretary, Department of Southern Highlands Provincial Government [1995] PNGLR 229
Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488
Dr. Rose Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Fred Aikung v. Peter Waieng [1998] PNGLR 15
Gabriel Yer v. Peter Yama (2000) SC996
Ila Geno & Ors v. The State [1993] PNGLR 22
James Jowa v. Jacobs Konts (2012) N4795
John Momis & Ors v. Attorney General, NEC & The State [2000] PNGLR 109
Jonny Pokaya Philp v. James Marape (2013) N5276
Les Curlewis v. Reuben Renagi & Ors SC1274
Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development
Pty Ltd (No.1) [1977] PNGLR 8
Miria Simoi v. Sectary of Department of Lands N1714
Monomb Yamba v. Maits Geru (also known as Mas Geru) [1975] PNGLR 322
New Guinea Cocoa (Export) Co. Pty Ltd v. Basis VedBaek [1980] PNGLR 205
Paul Asakusa v. Andrew Kumbakor (2008) N3303
Pepi Kimas v. Boera Development Corporation Ltd (2012) SC1172
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
Phillip Takori v. Simon Yagari (2008) SC905
PNGBC v. Jeff Tole (2002) SC694
Reference by East Sepik Provincial Executive (2011) SC1154
Simon Manjin v. Post & Telecommunication Corporation [1990] PNGLR 288
The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417
Tiga Nalu v. Commissioner of Police (1995) N1972
Tzen Pacific Limited v. Innovest Limited WS 1121 of 2010
Willie Edo v. Hon. Sinai Brown (2006) N3071
Willie Kili Goya v. The State [1991] PNGLR 170

Other cases cited

M v. Home Office [1993] All ER 537
Island Revenue Commission v. National Federation of Self-Employed and
Small Businesses Ltd [1982] C.A 617
R v. Chief Constable of Merselyside Police, exp. Calveley [1986] Q.B 424; [1986] 1 All E.R 257
R v. Kensington & Chelsea Royal London Borough Council, ex parte Hammel [1989] All ER 1202

Counsel

I. Shepherd, for the Plaintiff
E. Geita, for the Defendants

17th March, 2014

1. GAVARA-NANU J: This is an application for leave for judicial review by the plaintiff made pursuant to the originating summons filed on 14 February, 2014. The application is made under Order 16 r 3 (2) and (3) of the National Court Rules (NCR).

2. The defendants have raised a preliminary objection to the application that it is incompetent because the decision to be reviewed has not been pleaded in the originating summons.

3. The plaintiff in response, submitted that the application is competent because the pleadings in the originating summons meet the requirements stated in Peter Makeng v. Timbers (PNG) Ltd (2008) N3317. The pertinent part of the judgment in that case appears at paragraph 37, which states:

"In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized." (my underlining)

4. This passage partly reiterates the requirements of Order 16 r 3 (2) of the NCR. The critical requirement stressed in this passage with which I respectfully agree, is that the decision to be reviewed should be particularized in the originating summons. This means besides pleading leave, the decision to be reviewed should also be specifically pleaded in the originating summons. A failure to do so may result in the pleadings in the originating summons being insufficient and or ambiguous, which may render the application incompetent and subject to summary dismissal pursuant to Order 16 r 13 (13) (2) (a) and (b) of the Judicial Review Amendment Rules, 2005.

5. It should also be noted that the only matters that should be pleaded in the originating summons are; leave (to apply for judicial review), which is the relief sought and the decision to be reviewed for which leave is sought. The Rules do not allow for the substantive relief such as an order in the nature of certiorari, mandamus or declaration to be pleaded in an originating summons (Order 16 r 3 (2). Any substantive relief should be sought and pleaded in the Statement in Support together with the grounds for review (Order 16 rr 1 and 3 (2) (a)).

6. Leave may also be sought by a notice of motion besides being sought in an originating summons. I hold this view notwithstanding the dictates of Order 16 r 3 (2) which expressly provide for leave to be made by an originating summons. An application for leave for judicial review is an interlocutory application and therefore, such application may be made by a notice of motion pursuant to Order 16 r 13 (1) of the Judicial Review Amendment Rules and Rule 9 of the National Court Motions (Amendment) Rules, 2005. The application should also plead the decision to be reviewed and the jurisdictional basis of the Court to hear the application in the same manner as in an originating summons. No substantive relief should be pleaded in a notice of motion seeking leave for the basic reason that it is an interlocutory application. It is settled law that seeking substantive relief in a notice of motion seeking leave or other interlocutory relief is an abuse of process: John Momis & Ors v. Attorney General, NEC and The State [2000] PNGLR 109 and Gabriel Yer v. Peter Yama (2009) SC996. (See also Rule 9 of National Court Motions (Amendment) Rules, 2005).

7. The question of whether an application for leave for judicial review should be made by an originating summons or by a notice of motion should depend, in my view on whether other interim relief is sought besides leave. If other interim relief is sought, then the application should be made by way of a notice of motion. The basis of this approach is that if leave is granted, it would then be convenient for the applicant to seek the other relief in the motion. This approach may be adopted particularly in cases where interim relief such as stay or a restraining order is also sought.

8. I do not think it is permissible under Order 16 r 3 (2) for leave to be sought together with other interim relief in an originating summons for the basic reason that the rule, which is couched in mandatory terms, only provides for leave to be made by an originating summons. Thus, I respectfully agree with the view held in Peter Makeng that Order 16 r 3 (2) upon its proper construction, only allows for leave for judicial review of the decision to be reviewed to be sought and pleaded in an originating summons, (besides pleading the jurisdictional basis of the Court to hear such application).

9. An originating summons or a notice of motion, as the case may be, should not just simply "seek leave for judicial review". Such pleading would fall far short of the requirements stated in Peter Makeng, because the decision to be reviewed and the jurisdictional basis of the Court to hear the application are not pleaded. Without these two matters being pleaded, the application may be deemed incompetent and subject to summary dismissal pursuant to Order 16 r 13 (13) (2) (a) and (b) (a) and (b) and r 8 of the National Court Motions (Amendment) Rules, 2005.

10. In my opinion, it is essential that an application for leave for judicial review should be made either by an originating summons, or a notice of motion. As a matter of practice, in pleading the decision to be reviewed, the pleadings should also state the date when the decision was made and by whom. This should enable the Court to see whether the plaintiff has standing, whether the application is of a public or private law nature and whether delay, is or is likely to be an issue. Such pleading should also enable the Court to see on a quick perusal of the materials then before it (including the originating summons and or the notice of motion) whether prima facie there is an arguable case or a serious issue to be tried. The other materials which the Court should peruse at this stage are the Statement in Support and the supporting affidavit(s), pursuant to Order 16 r 3 (2) (a) and (b).

11. In the instant case, the application for leave is made by way of an originating summons. Thus, having regard to the observations made above, it is quite apparent that the application has been inadequately pleaded, in that it does not plead the decision to be reviewed. That is to say, it only seeks leave of the Court to apply for judicial review. In this sense the application clearly does not meet the requirements stated in Peter Makeng, consequently, it has not complied with Order 16 r 3 (2).

12. The question then is: Is the defect in the pleading in the originating summons fatal? In other words does the defect render the application subject to summary dismissal, or can the defect be remedied by an amendment to the pleading? It is important to note that this is not a case of the decision to be reviewed not having been pleaded at all, because it has in fact been pleaded in paragraph 2 (a) of the Statement in Support, which notably is a document that forms part of the application for leave for judicial review (Order 16 r 3 (2). However, pleading the decision to be reviewed in the Statement in Support may not be enough to remedy the defect because that still will not meet the requirements of Order 16 r 3 (2): Peter Makeng v. Timbers (PNG) Ltd (supra). There is however one fundamental feature about the pleadings which, in my opinion, renders the defect less fatal. This consideration relates to the detailed submissions filed by the defendants in defence of the claims made against them by the plaintiff. Looking at the submissions, it is clear that, notwithstanding the defect highlighted above, the pleadings have satisfied their basic purpose which is to sufficiently inform the defendants of what they have to meet in their defence. I am satisfied from their detailed submissions that the defendants knew from the pleadings what they had to meet. The end result is that the defendants have not been prejudiced at all in their defence by the defect or inadequacy in the pleadings in the originating summons. In the circumstances, I consider that the proper course for the Court to adopt is to exercise the power vested in it by Order 1 r 8 of the NCR and order amendment to the pleading in the originating summons to remedy the defect: Phillip Takori v. Simon Yagari (2008) SC905; James Jowa v. Jacobs Konts (2012) N4795; Paul Asakusa v. Andrew Kumbakor (2008) N3303 and Tiga Nalu v. Commissioner of Police (1999) N1972.

13. The Court's power to order amendment under Order 1 r 8 is wide. The defendants have already fully addressed the issues before the Court in their detailed submissions, therefore it is clear to me that they will not be prejudiced if I proceed to consider the merits of the application for leave for judicial review. If leave is granted then the plaintiff should be directed to immediately file and serve an amended originating summons, particularizing the decision to be reviewed in the manner discussed above.

14. It should be said that had the decision to be reviewed not been pleaded in the Statement in Support and or the defendants had suffered prejudice in their defence as a result of the defect in pleadings, then the proper course for the Court would in my view be to direct the plaintiff to file and serve an amended originating summons first, before the application for leave for judicial review is made.

15. Before I decide leave, I should make some observations regarding the State's right to be heard on a leave application. I am prompted to make these observations after the Court was forced to adjourn the application for leave following the failure by the State to appear and argue the matter.

16. Pursuant to the requirements of Order 16 r 3, the following things must be done by a plaintiff before making the application for leave for judicial review:

(i) the plaintiff must give notice of his application to the Secretary for Justice two clear days before the application is made. The notice may be given either by a covering letter or by a formal notice (r.3(3)); and

(ii) the notice of the application must be accompanied by the sealed copies of the application (originating summons and notice of motion, if filed, the Statement in Support, affidavit(s) in support and the Affidavit Verifying Facts viz. facts pleaded in the Statement in Support). All these documents must be served on the Secretary for Justice within the period required for there to be a proper notice of the application (r. 3(3) and 13(7)(6)(a)(vi)); and

(iii) the plaintiff must file and serve an affidavit of service of the notice on the Secretary for Justice.

17. In my opinion, implicit in r. 3 there, is a discretion vested in the Court to hear an application for leave for judicial review in the absence of the State. Such discretion may be exercised in the following situations:

(i) where the State is not a party to the proceeding, has been duly served with notice of the application as discussed above but has, without any reasonable explanation, failed to appear in Court to argue the application; or

(ii) where the State is a party to the proceeding, has been duly served with notice of the application as discussed above, but has without any reasonable explanation, on more than one occasion, or repeatedly, failed to appear in Court to argue the application.

18. As a general rule of thumb, the Court should always be cautious or slow to exercise its discretion in favour of hearing an application for leave for judicial review in the absence of the State, even in situations of the kind mentioned above. However, if the Court is faced with the second situation then it is incumbent on the Court to have regard to the mandatory statutory requirements under s. 8 of the Claims By and Against the State Act, 1996. The section is in these terms:

8 Leave for judicial review.

Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard. (my emphasis).

19. This section gives the State the right to be heard on a leave application and by giving that right to the State, the section also imposes a duty on the Court to give the State "an opportunity to be heard" on the leave application. However, it is important to also note that the State's right to be heard on a leave application is not absolute, and the duty on the Court to accord the State "an opportunity to be heard" is not without limitation. It follows that once, in the opinion of the Court, the State has been given the opportunity to be heard on the application for leave, the statutory duty imposed on the Court will have been discharged. Accordingly, if, after being given an opportunity to be heard, the State fails without any reasonable explanation to appear in court and be heard, then the State's right to be heard will be deemed to have been lost and it is then open to the Court to properly proceed and hear the application for leave in its absence.

20. There should, in my opinion, be two paramount considerations to which the Court should have regard when deciding whether to hear an application for leave in the absence of the State. First, the Court should consider whether the State is likely to suffer prejudice if the application is heard in its absence. Second, the Court should consider whether the case is of such public interest that the State should be heard. If the State is likely to be prejudiced and or the case is of sufficient public interest, then the Court should adjourn the application to a date when the State can make an appearance and be heard. The remedy for the plaintiff in such a situation is in costs.

21. If an adjournment is likely to prejudice the rights of the plaintiff, and the case is of an urgent nature, then the Court may consider whether the plaintiff should be granted an interim stay or injunction in order to maintain the status quo and allow the State an opportunity to appear and be heard on the question of leave. The Court may exercise this discretion either on its own initiative or upon an application being made by the plaintiff. I consider that such an approach by the Court would be a proper exercise of the Court's discretion. If an interim stay or injunction is granted, and leave is subsequently granted, the issue of whether the interim stay or injunction should be made permanent or not should then be the first issue that should be argued inter-partes on the first return date after the grant of leave or very soon thereafter. If leave is refused then the refusal should automatically dissolve the interim stay or injunction, as the case may be. This would of course mean dispensing with the requirements of Order 16 r 3 (8) of the NCR, pursuant to Order 1 r 7. I consider that such dispensation with the requirements of Order 16 r 3 (8) would be justified in the circumstances taking into account the urgency of the matter, the rights of the applicant and other relevant factors. In this regard, it should be noted that Order 16 r 3 (8) is by its nature discretionary as it is a part and parcel of the overall judicial review process under Order 16 which grants discretionary remedies: Miria Simoi v. Secretary, Department of Lands N1714 and David Tapale v. Secretary, Department of Southern Highlands and Southern Highlands Provincial Government [1995] PNGLR 229. The Rule therefore in my view allows for flexibility in its application and the Court should exercise its discretion to dispense with the requirements of the Rule where the interests of justice so require.

22. It should be born in mind that the purpose of the Rules is to guide the Court in conducting trials in a fair and just manner in order to dispense justice to the parties: PNGBC v. Jeff Tole (2002) SC 694. The Rules in that regard are not an end in themselves but are a means to an end. Therefore, if dispensing with the requirements of Order 16 r 3 (8) is in the interest of justice, then that should, in my opinion, be a proper basis for the Court to exercise its power of dispensation under Order 1 r 7 of the NCR: Phillip Takori v. Simon Yagari (supra) and Bank South Pacific Limited v. Robert Tingke (2012) N4901. In very urgent cases, where there is a clear need to protect the primary rights of the plaintiff, the Court should be more inclined to dispense with the strict requirements of Order 16 r 3 (8): M v. Home Office [1993] All ER 537. To my mind a clear example of where such a situation may arise is where a person is faced with the threat of an imminent eviction by a public authority. In such a case, given the circumstances of the case, I consider the grant of an interim injunction pursuant to Order 1 r 7 and s. 155 (4) of the Constitution, prior to leave could well be justified in order to maintain the status quo until leave is determined.

23. The Court adopted this approach in Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80. In that case the plaintiff was owed a substantial amount of money in damages by the defendant, which was a foreign company, for breach of contract. The plaintiff, fearing that its damages might not be met by the defendant, in the event that the Court found in its favour, applied for an interlocutory injunction against the defendant, before the hearing of its claims, to stop the defendant from transferring its money offshore. The Court held that it had power under s. 155 (4) to grant the relief sought by the plaintiff. The Court at page 85 said:

"However, I do not consider that the power to make "Such other orders as are necessary to do justice in the circumstances of a particular case" can be confined to matters of procedure only. Giving the words their fair and liberal meaning as required by the Constitution, Sch.1.5.(2), the provision, in my opinion, extends to jurisdiction also, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exists under the principles of common law or equity. The express reference "to the circumstances of a particular case", in my opinion, leave no room for a more restrictive construction to be adopted".(my underlining).

24. Then in New Guinea Cocoa (Export) Co. Pty Ltd v. Basis VedBaek [1980] PNGLR 205, the Court held that it had power under s. 155 (4) of the Constitution to order, by way of an interlocutory relief, the arrest of the defendant which was a foreign company from leaving Papua New Guinea without paying berthing and other related fees. The Court in that case followed Mauga Logging. The Court at page 214 said:

"I agree that Papua New Guinea needs a law for the arrest of ships but it does not follow that I should find the English law on necessaries to be part of the underlying law of Papua New Guinea. I consider that the power to arrest a ship and the substantive cause of action for goods and services supplied to a ship are logically distinct. I consider the National Court of Justice has adequate power to order the arrest of a ship by way of interlocutory relief at the outset of an action. By s. 166 of the Constitution it is a court of "unlimited jurisdiction" and by s. 155 (4) it has an inherent power to make such "orders as are necessary to do justice in the circumstances of a particular case". The power was applied by Frost C.J. in Mauga Logging Pty Ltd v. South Pacific Oil Palm Development Pty. Ltd. (No.1) (15) to give interlocutory relief to the plaintiff, to ensure that the defendant did not skip the country with its assets before the trial of the cause of action. In this present case the warrant of arrest was issued under O. 7, r. 11 of the Rules of the National Court or under the Admiralty Rules, 1926 of Papua both of which are continued in force by virtue of s. 14 of the National Court Act, 1975. As the validity of the arrest has not been challenged before me and as I consider that s. 155 (4) of the Constitution would, in any event, have justified an interlocutory order of arrest, it is not necessary for me to rule on the validity of the arrest of the vessel".(my underlining).

25. The Court took a similar approach in Douglas Charles Dent v. Thomas Kavali [1981] PNGLR 488. In that case, the Court in the exercise of its inherent power under s. 155 (4) of the Constitution, declared the forfeiture of the plaintiff's lease unlawful and void, despite the plaintiff not appealing the forfeiture pursuant to s. 142 (1) (b) and (2) of the Land Act, 1996. See also, Reference by East Sepik Provincial Executive (2011) SC 1154.

26. It should be noted that, except for the case of Douglas Charles Dent v. Thomas Kavali (supra), both Mauga Logging and New Guinea Cocoa (Export) Co. Pty Ltd were decided before the much celebrated case of Avia Aihi v. The State [1981] PNGLR 81, was decided by the Supreme Court. Nevertheless, all three cases applied the principles which are consonant with those enunciated by the Supreme Court in Avia Aihi, with regard to the Court's exercise of its inherent power given by s. 155 (4) of the Constitution.

27. These were not judicial review proceedings, but the significance of the cases is that, they demonstrate very clearly the readiness of the Court to exercise its inherent power to protect the primary rights of the plaintiffs to maintain the status quo and to do justice in the circumstances of the particular cases. The primary rights of the plaintiffs in these cases arose from the proceedings they each instituted against the defendants. In each case, the interim injunctions were ordered against the defendants before the cause of action in each proceeding was tried.

28. Thus, having regard to the principles applied in the cases I referred to, the primary right of a plaintiff seeking leave in a judicial review proceeding and the need to protect that primary right are relevant matters to be considered by the Court when deciding whether to grant an interim relief before the grant of leave or not. In my opinion, a plaintiff's primary right to seek such an interim relief prior to the grant of leave and the Court's jurisdictional basis to hear and or to grant the interim relief arise under s. 155 (4) of the Constitution, Order 1 r 7 and Order 16 r 3 (2) of the NCR. Order 16 r 3 (2) gives the plaintiff invoking it, the right to seek leave for judicial review, thus providing the basis for the Court to exercise its inherent power under s. 155 (4) of the Constitution to grant the interim relief sought, such as a stay or an injunction, before the grant of leave. These are discretionary remedies, which the Court in the exercise of its unfettered inherent discretionary power and the unlimited jurisdiction can grant: Application by Joseph Kintau (2011) SC1154 and Wllie Kili Goya v. The State [1991] PNGLR 170. The inherent power of the Court given by s. 155 (4) of the Constitution cannot, in my opinion, be ousted by a sub-ordinate legislative provision such as Order 16 r 3 (8): Dr. Rose Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122. The inherent power of the Court is derived from the people (s. 158 (1) of the Constitution), thus the exercise of that power by the Court to protect the primary rights of parties cannot be limited even by a statute: Monomb Yamba v. Maits Geru (also known as Mas Geru) [1975] PNGLR 322; Johnny Pokaya Philp v. James Marape (2013) N5276; Avia Aihi v. The State (No.1) [1981] PNGLR 81 and Application by Jeffery Balakau [1998] PNGLR 437.

29. In Application by John Mua Nilkare [1998] PNGLR 472, (SC536), the Supreme Court succinctly stated the nature of the Court's inherent power given by s. 155 (4)
of the Constitution this way:

"We adopt the following comments of Deputy Chief Justice Kearney in respect of s 155(2)(b), in Avia Aihi v The State (Supra), as having equal application to the interpretation of s 155(4).

"As the ultimate court in the National Judicial System, this court is invested with the judicial authority of the people; s 158(1). That is the exclusive and ultimate source of its authority. The word "inherent" in s 155(4), as also used in s 155(2)(b), (3) and (5) indicates that it is from that unlimited well that the courts authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court. The word "inherent" also connotes that within the limits of the subject matter of s 155(4), the power of the Court is plenary — (ie full, entire, completed). In the absence of express constitutional provisions, that power and its exercise cannot be restricted by any Act of Parliament ..."

We also adopt the comments of Chief Justice Kidu in the same case at p 87, in respect of s 155(2)(b), with equal force to s 155(4):

"We cannot cut down the powers of this Court if the Constitution has invested it with extra jurisdiction or power. If this Court has been granted inherent power by the people through the Constitution, we must be bold in stating the fact. .... Whatever the nature of this power might be, it does not derive from any statute or the common law or any prerogative powers of persons or bodies outside Papua New Guinea.

"We are of the opinion that, in applying the injunctive of Constitution Sch. 1.5, to read each constitutional law as a whole, and to give all words, expressions and propositions in them, "their fair and liberal meaning", this Court has "inherent power to make, in such circumstances as seem to (it) proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of (this) particular case," pursuant to s 155(4). Of this interpretation there cannot now be any doubt". (my underlining).

30. Section 58 (2) of the Constitution which is in mandatory terms, is relevant, it is in these terms:

In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

31. That said, a grant of an interim relief before the grant of leave should not be as a matter of course. The plaintiff has the onus to prove, with credible evidence the urgency of the matter and whether, if the interim relief is not granted, he is likely to suffer irreparable damage and prejudice. These matters must be strictly proved. If these matters are proved then the Court should for the reasons given, grant the interim relief, pursuant to the powers conferred on it by s. 155 (4) of the Constitution so as to protect the plaintiff's primary rights in the proceeding. In this regard, the Court's discretionary power granted by s. 155 (4) of the Constitution is unfettered: In Avia Aihi v. The State (supra), Kearney DCJ in stating this principle at page 91 said:

"I agree with the views of Prentice C.J. and Andrew J. in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea [1979] PNGLR 329 at pp. 337, 401 that the Constitution, s. 155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected". (my underlining).

32. I do appreciate, with the greatest of respect, that the view I hold is somewhat contrary to that held in Peter Makeng, viz; that by virtue of Order 16 r 3 (8), leave must be obtained first before any interim relief such as stay or injunction can be sought and granted. However, I am of the respectful opinion that the view held in Peter Makeng disregards the inherent discretionary nature of Order 16 r 3 (8) and the overall supervisory jurisdiction given to the Court by Order 1 r 7 to dispense with the requirements of such a Rule, in appropriate cases where it is in the interests of justice to do so. In Peter Makeng, the Court followed the decision in R v. Kensington & Chelsea Royal London Borough Council, ex parte Hammel [1989] All ER 1202. The Court in Peter Makeng distinguished M v. Home Office (supra). There, the Court said the decision in Home Office was based on a statutory provision which provided for an injunction to be granted in very urgent cases before the grant of leave. The Court then went on to say that because no such statutory provision applies in Papua New Guinea the requirements of Order 16 r 3 (8) must apply strictly. With great respect, I consider that such a rigid application of the Rule would likely result in injustice and prejudice to parties and would give no room for the Court to exercise its discretion in appropriate cases: Les Curlewis v. Reuben Renagi & Ors SC 1274.

33. I consider that the approach I have adopted above falls within the ambit of s. 8 of the Claims By and Against the State Act, 1996, which has to be read together with Order 16 r 3 for any leave application. Applications for leave for judicial review pursuant to Order 16 r 3 are subject to wide judicial discretion and a similar discretion applies in relation to s. 8 of the Claims By and Against The State Act,1996.

34. Notably, the pertinent Rules mentioned above do not expressly require the Secretary for Justice or the State to appear in Court on leave applications. This apparent void in the Rules appears to reflect the practice under the reformed UK Supreme Court Rules, 1993, especially under Order 53 r 3, from which Order 16 r 3 of the NCR was adopted. Under the UK Rules, an application for leave has to be filed in the Crown Office. The application is made ex-parte by the Crown Office before a single judge in chambers without hearing, unless hearing is requested in the notice of the application. A copy of any order made by the judge is then sent to the applicant by the Crown Office. If leave is granted then the applicant is entitled to institute the substantive application (O 16 r 5 of the NCR) and serve copies of all the documents constituting the application on all persons directly affected by the application.

35. Under Order 16 r 3 (2) of the NCR, the procedure regarding an application for leave for judicial review is that it be made in open Court ex-parte of all other parties except the State. This procedure is described as an ex-parte application because the parties, other than the State, have no right to be heard on a leave application. The procedure is an obvious departure from the practice under the UK Rules and is a clear reflection of the legislative intent expressed in Order 16 r 3 (2) and s. 8 of the Claims by and Against the State Act, 1996, whereby an applicant must give notice of the application to the State so that the State can then be afforded an opportunity to be heard.

36. Two of the four requirements that must be satisfied by a plaintiff seeking leave for judicial review are stipulated in our Rules, namely, Order 16 r 3 (5), and Order 16 r 4 (2). Order 16 r 3 (5) states that the applicant should have a sufficient interest in the matter and Order 16 r 4 (2) states that the application should be made within four months from the date of the decision sought to be reviewed (if the relief sought is an order in the nature of certiorari). This rule raises the issue of delay which has to be determined against the four month period. Thus, if an application is made outside of the four month period, then the Court has to decide whether the delay is undue and whether there is a reasonable explanation given for the delay by the plaintiff. If the Court is of the view that the delay is undue and that no reasonable explanation has been given by the plaintiff, then the Court may refuse leave. The principal object of Order 16 r. 4 (2) is to ensure that the application is made promptly.

37. It is appropriate to mention Order 16 r 4 (1). This rule applies to a case where the Court may refuse to grant a relief sought in a substantive judicial review application, under any of the three grounds listed below, due to an undue delay in making the application. The period of delay under this sub-rule is not limited to the four month period stipulated under sub-rule 4 (2) which applies to a case where the Court has to consider a leave application for and order of certiorari. Under sub-rule 4 (1), the Court has to consider the delay generally, taking into account all the relevant circumstances. Under this sub-rule the Court may refuse to grant a relief sought, including an order for certiorari, if the Court is of the opinion that because of the undue delay in making the application, the grant of the relief sought would:

(i) be likely to cause substantial hardship; or

(iii) substantially prejudice the rights of any person; or

(iv) be detrimental to good administration.

38. The other two requirements that must be satisfied in order for leave to be granted are based on common law and are not stipulated in Order 16. First, the applicant must exhaust all the administrative remedies available to him before coming to Court to seek leave for judicial review: The Independent State of Papua New Guinea v. Philip Kapal [1987] PNGLR 417 and Dr. Rose Kekedo v. Burns Philip (PNG) Ltd (supra). Under this requirement, there may be exceptions where the Court may decide to hear an application notwithstanding that all other administrative remedies have not been exhausted. An example of this type of situation is where the body which reviewed the decision has failed to give its decision within a reasonable time or where such body has been changed or terminated and is not able to perform its duty: R v. Chief Constable of Merselyside Police, exp. Calveley [1986] Q.B 424; [1986] 1 All E.R 257. Second, the applicant must demonstrate that there is an arguable case or a serious issue to be tried: Fred Aikung v. Peter Waieng [1998] PNGLR 15; N1853; Pepi Kimas v. Boera Development Corporation Ltd (2012) SC 1172; Willie Edo v. Hon. Sinai Brown (2006) N3071; Ila Geno & Ors v. The State [1993] PNGLR 22; Paul Asakusa v. Andrew Kumbakor (supra); Simon Manjin v. Post & Telecommunication Corporation [1990] PNGLR 288.

39. Under the last requirement, the Court is only required to see whether on a quick perusal of the materials before it, there is a prima-facie case of an arguable case, or a serious issue to be tried which, on further investigation by the Court, might favour the grant of the claim or relief sought by the plaintiff. If so then that would warrant the grant of leave for judicial review. A quick perusal of the materials should not involve a detailed analysis of the materials. The materials to be perused should include the Statement in Support, more particularly the grounds for review and the supporting affidavits. In Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] A.C 617 at 644, Lord Diplock in stressing this process said:

"So this is a threshold question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself".

40. His Lordship then said:

"If on a quick perusal of the material then available, the Court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed. It ought to in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the Court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application." (my underlining).

41. This principle has been adopted and cited with approval by the courts in many decided cases in this jurisdiction and is the appropriate test for the grant of leave for judicial review. Indeed, by virtue of Sch. 2.2 of the Constitution the principle is part of the underlying law: Ila Geno v. The State (supra); Paul Asakusa v. Adnrew Kumbakor (supra); Willie Edo v. Hon. Sinai Brown (supra) and Pepi Kimas v. Boera Development Corporation Ltd (supra).

42. The Statement in Support is a vital part of a judicial review application wherein the matters required under Order 16 r 3 (2) (a) should be strictly and clearly pleaded. These include particulars of the applicant, including the position which the applicant held at the time of the decision, the nature of the decision to be reviewed, the particulars of the decision maker and the date of the decision. The relief sought and the grounds for review should also be clearly pleaded: Paul Asakusa v. Andrew Kumbakor (supra).

43. The nature of the particular relief sought should also be clearly pleaded, that is, whether it is an order in the nature of mandamus, prohibition, certiorari or declaration. This is significant because when leave is sought for a judicial review the Court has to consider whether to adjourn the application for leave under r 3 (6) where an appeal has been lodged or whether a grant of leave should operate as a stay under r 3 (8).

44. With regard to the substantive notice of motion under r 5 (1), in my opinion, it 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. But the relief sought should include or cover all the relief sought in the Statement in Support and any damages claimed in the Statement in Support pursuant to Order 16 r 7.

45. I note that some cases appear to have stated another requirement for the grant of leave viz; the Statement in Support should disclose 'a reasonable cause of action'. In my respectful opinion, that in essence is just another way of saying "whether there is an arguable case or a serious issue to be tried" which is one of the four requirements that must be satisfied in order for leave to be granted. The Statement in Support and affidavit(s) in support should indicate whether this requirement is satisfied or not. The appropriate requirement for the grant of leave should always be whether there is an arguable case or a serious issue to be tried.

46. Pursuant to Order 16 r 3 (2), a Statement in Support should be filed and served with the originating summons, the affidavit verifying facts and the affidavit(s) in support. All these documents must be filed and served before an application for leave for judicial review can be properly made. A failure to file and serve any one of these documents may deem the application incompetent and subject to summary dismissal pursuant to Order 16 r 13 (13) (2) (a) and r. 8 of the National Court Motions (Amendment) Rules, 2005.

47. In this case the application for leave itself is challenged only on the issue of arguable case. It was submitted by Mr. Geita of counsel for the defendants that, the refusal by the Minister to issue an export permit to the plaintiff was proper and the Minister had acted within his powers because there was a permanent injunction on foot against the plaintiff in proceeding WS 1121 of 2010. That case was between Tzen Pacific Limited, and Innovest Limited, the plaintiff in this proceeding. The restraining Order is in these terms:

"The defendant, its employees, agents, servants or whosoever otherwise are permanently restrained from interfering or dealing with Aria Vanu Timber Company Ltd including Aria Vanu Timber Company Limited's servants, agents and employees."

48. Mr. Geita therefore, argued that the plaintiff has failed to demonstrate that there is an arguable case or that there is a serious issue to be tried.

49. In its grounds for review in the Statement in Support, the plaintiff claims that the Minister's refusal to grant the export permit was influenced by irrelevant and extraneous matters. Thus, the plaintiff contends that the Minister acted ultra vires and had failed to exercise his discretion properly. The plaintiff also claims that Tzen Pacific Limited, in whose favour the above restraining order was issued, no longer carries out logging operations in Aria Vanu Block 3 Timber Area after its license was cancelled on 2 August, 2010. Therefore the Order has no relevance and utility.

50. In my opinion, from a quick perusal of the grounds for review pleaded in the Statement in Support, together with the affidavit in support sworn by Mr. Hii Yii Luk, there is a clear issue as to whether the Minister has exercised his discretion properly when refusing to issue an export permit to the plaintiff. This clearly raises an arguable case or a serious issue to be tried and warrants the grant of leave for judicial review. I therefore grant leave for judicial review.

51. In deciding leave, I have taken into account the Export Price Endorsement issued in favour of the plaintiff to export certain classes of logs. Notably, the plaintiff is also a registered forest industry participant. There is also therefore a serious issue for trial as to whether the Minister exercised his discretion properly in refusing to issue an export permit to the plaintiff.

52. As I said earlier, now that leave for judicial review has been granted, the plaintiff is directed to immediately file and serve an amended originating summons particularizing the decision to be reviewed in the manner described above. The plaintiff must also file and serve a substantive notice of motion required under Order 16 r 5 of the NCR.

53. Costs to be in the cause.

_____________________________________________________________
Ashurst Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants