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Kramer, In re [2018] PGNC 162; N7247 (15 May 2018)

N7247

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 267 OF 2018

APPLICATION PURSUANT TO ORDER 14 RULE 9(A)
OF THE NATIONAL COURT RULES
BY HON. BRYAN KRAMER

Waigani: Dingake J
2018: 30^th April, 15^th May

Counsel:

Mr. Bryan Kramer, in Person.
Mrs. Tiffany Twivey, for Respondents

15^th May, 2018

1. DINGAKE J: On the 29^th of April, 2018, the Applicant, Hon. Bryan Kramer, Member for Madang Open, brought an urgent application pursuant to Order 14 Rule 9(a) of the National Court Rules, to be heard ex parte, seeking inter-alia, interim injunction against the National Information Communication Technology Authority (NICTA), Licensees or agents from deactivating unregistered subscribers using their networks and services after 30^th April, 2018.
   
2. The application to be heard ex parte was refused.
   
3. The Court ordered that the application should be heard inter-parte on Monday the 30^th of April, 2018 at 10:30am.
   
4. On the 30^th of April, 2018, the Court by consent of the parties ordered that:
   
   • (1) NICTA and the State are further restrained from giving effect to or implementing the deactivation of unregistered sim cards nationwide at the lapse of the 30^th April, 2018 deadline.
     
   • (2) The Applicant is to file and serve on all respondents the appropriate process by or before 8^th May, 2018.
     
   • (3) The Respondents are to file and serve their appropriate responses and affidavits on the applicant by or before 14^th May, 2018.
     
   • (4) The matter returns to the Court on 15^th May, 2018 to be argued.
     
   • (5) Costs be in the course.
     
5. On the 8^th of May, 2018, the applicant filed a notice of motion seeking extension of time, variation of the orders issued by consent on the 30^th of April, 2018, and further extension of the injunction to the 29^th of May, 2018.
   
6. The above application is supported by the affidavit sworn by the applicant, in which he gives reasons why he seeks an extension of time of seven (7) days to file and serve on all the respondents the appropriate process from the 8^th of May, 2018.
   
7. The reasons that he gives are brief and, for convenience, I reproduce them hereunder:
   
   • (i) Following the hearing of 30^th April 2018, the next day I had to appear before the Supreme Court in a contempt proceedings SCM. 25 and SCM. 35 of 2017 filed by Prime Minister Peter O’Neil. The Supreme Court adjourned the matter to Wednesday 2^nd May, 2018 to hear an application filed by the parties in the proceedings.
     
   • (ii) On Saturday, I was scheduled to fly to Madang to arrange for members of my constitutes (sic) to consent for me to act in their interest in these proceedings as the lead plaintiff. However, I received notice early Saturday morning that a good friend and respected person of Madang, Jim Namora passed away in Port Moresby.
     
   • (iii) Chief Superintendent Jim Namora was the former Provincial Police Commander for Madang for many years before promoted to Director Special Services Division (SSD) in Port Moresby.
     
   • (iv) Following news of his death, I cancelled my flight to Madang to visit the family living at 9 mile to pay my respects and assist with the arrangements for the funeral service and flying the body back to Madang.
     
   • (v) On Monday, I attended National Court in Madang to appear on two matters against the Madang District Development Authority as Member of Madang and Chairman of Madang District Development Authority.
     
8. The applicant submits that due to the above reasons he could not comply with the Court orders of 30^th April, 2018.
   
9. The application by the applicant is opposed by the respondents on the basis that the applicant has failed to advance sufficient reasons for the relief sought.
   
10. I have read the application and the supporting evidentiary material with great care. I have also considered the submission of the parties very carefully.
    
11. I consider this application to be of high national importance. The application was brought on urgency. The orders that the applicant seeks to extend and vary where granted by consent.
    
12. The reasons advanced by the applicant for the relief sought are not adequate having regard to the importance of this matter and that he consented to the orders issued on the 30^th April, 2018.
    
13. In his supporting affidavit the applicant doesn’t adequately explain why he was unable to comply with Court orders.
    
14. In my considered opinion and having regard to all the circumstances of this case, its national importance and urgency, the applicant had ample time to comply with the Orders of the 30^th April, 2018, to instruct a lawyer to file and serve the originating process and supporting documents by the 8^th of May, 2018.
    
15. In a nutshell, the applicant had the balance of the 30^th of April, 2018, 1^st and 2^nd of May, 2018, and subsequent days to comply with the Court order issued by consent. Court orders are not negotiable. They must be complied with without fail.
    
16. In his supporting affidavit the applicant doesn’t say why he couldn’t comply with the Court order on Monday the 8^th of May, 2018, and the days that followed, before the return date of the 15^th of May, 2018.
17. It is clear to me, on the evidence tendered, that the applicant in this matter did not conduct this matter with due diligence befitting its status as a matter of high national importance, and which was brought to Court on urgency, by the applicant.
    
18. For all the reasons stated above, this application ought to fail.
    
19. There are other considerations that militate against the application, the application for variation is not in the proper form and offends against Order 4 Rule 49(8) of the National Court Rules.
    
20. The applicant ought, by now, to have filed the originating process, the notice of motion, supporting evidentiary material, in the form of an affidavit or affidavits and an undertaking as to damages, which he has not done.
    
21. This Court cannot allow its processes to be treated in the manner in which the applicant has done.
    
22. In the premises;
    
    • (i) The application is refused.

_______________________________________________________________
Lawyers for the Plaintiffs/Applicant: In Person

Twivey Lawyers: Lawyers for the Defendants/Respondent