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Naur v O'Neil [2019] PGNC 349; N8031 (4 October 2019)

N8031

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 982 of 2018

JOE KUNDA NAUR in his personal capacity and as the Acting Provincial Administrator and PEC endorsed Candidate for Simbu Provincial Administrator Position
Plaintiff

V
HON. PETER O’NEIL, Prime Minister and the Chairman of National Executive Council
First Defendant

And
NATIONAL EXECUTIVE COUNCIL
Second Defendant

And
HON. ELIAS KAPAVORE, MP, Minister for Public Service and Chairman of the Ministerial Executive Appointment Committee
Third Defendant

And
Ms. TAIS SANSEN as the Secretary for Department of Personal Management
Fourth Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

And
MICHAEL BAL TEMAI
Sixth Defendant

Waigani: Miviri J
2019: 24^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – notice of motion – Order 16 Rule 13 13 (2) NCR – Dismissal of Proceedings – want of prosecution – Directions made – breach of – no evidence complying – motion granted –proceedings dismissed – cost follow event.

Cases Cited:

Bore v Malaisa [2013] PGNC 93; N5274 (24 July 2013)
Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018)
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008)
Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016)

Counsel:

R. Joseph, for Plaintiff
P. Kuman, for Sixth Respondents
H. K Monei, for First, Second, Third, Fourth and Fifth Defendants

RULING

04^th October, 2019

1. MIVIRI, J: This is the Ruling on the Motion pursuant to Order 16 Rule 13 (13) (2) of the National Court Rules, “the Rules” of the sixth Defendant filed the 21^st June 2019 seeking to dismiss the entire proceedings for want of prosecution and of failure to comply with court directions issued on the 14^th January 2019 following grant of leave. That rule basically premises this application and maybe invoked on the initiative of a party as here or by the court or by the registrar on referral for summary determination following procedure set out there under. The essence is there must be proper factual basis and the person against who summary determination is sought is given opportunity to defend himself before the extreme termination of the proceedings instituted. The judgment seat must not be removed from he who seeks without giving the opportunity to be heard.
   
2. By the same token litigants who instigate proceedings must not sleep over that fact to the detriment and anguish of those who are defending these causes of action. In essence that is the application now against the Plaintiff by the sixth Defendant. Public Administration in the office of the Simbu Provincial administrator must be free of litigation. That the office and the incumbent concentrates on serving the people rather than defending his existence in court. The procedure in attaining is the cause not the person in that seat of administration. Proceedings of this nature are prevalent and there ought to be and must be control efficiency merit in allowing them to remain. Court Time money and resources is appropriated and must be expeditiously and proficiently used.
   
3. Here the Plaintiff was the former provincial administrator of Simbu Province. His term expired 26^th October 2017. The Simbu Provincial Executive Council recommended that he be reappointed. But he was only appointed acting for three months. Department of Personal Management directed to advertise the position in the open market. It also conducted a pre screen rank list which was merit based together with due diligence checks. Five names including the plaintiff and sixth defendant were submitted to Provincial Executive Council who eliminated two and the remaining three which included the Plaintiff and the sixth Defendant were sent to National Executive Council for its deliberation. The sixth Defendant was successfully appointed as Provincial Administrator Simbu on the 30^th October 2018, gazettal number G725 was made on the 7^th November 2018. The applicant is aggrieved that despite the recommendation in his favour by the Provincial Executive Council the National Executive Council did not reappoint him. He sought leave which was granted on the 14^th January 2019. These facts show consistency and adherence to a process to appoint in my view not disputed from both sides of the case.
   
4. After that fact directions were made effectively to commence the substantive judicial review to see out conclusion and finality. Applicant contends that since the 21^st June 2019 plaintiff has not heeded nor given effect to the directions. He has failed to implement and accordingly by these rules his cause of action must be dismissed for failing to adhere by the rules and the directions of court.
   
5. Applicant relies in support on the affidavit filed of counsel Peter Kuman of the 20^th June 2019. Essentially, he deposes that since the grant of leave on the 14^th January 2019 plaintiff has not taken any meaningful steps to prosecute the review. And there has been no compliance of the court directions as regards the filing and service of the notice of motion seeking substantive relief and other directions to file and serve the statement of agreed and disputed facts and legal issues and settling the review book. There have been mentions in court since without this direction being settled.
   
6. In pursuing he has relied on the fact that it is now 9 months and the matter has not proceeded after the direction. That it is open for the court to exercise its discretion given the facts set out above to dismiss the matter for want of prosecution.
   
7. The Plaintiff has countered and urged that they were awaiting the outcome of a Supreme court decision involving the Application by the chairman of the Public Service Commission Dr Philip Kereme against Hon. Peter O'Neil Prime Minister & others (2019) SC 1781 challenging the constitutionality and validity of the Public Service (Management) (Employment of Provincial Administrators) Regulation 2014. That on or about the 28^th March 2019 the Supreme Court handed down its decision. As to how it ties with the present case remains to be seen. But the Judgement has prospective effect only. In that respect there is no cause for concern for the present. And against the motion there was no application formally to seek adjournment pending. And it remains to be seen how that case applies to the present proceedings at the initiative of the plaintiff.
   
8. Is this reasonable and substantial reason for the delay? In my view it is not because there is no specific motion granted to stay this proceeding pending the outcome of that decision. Plaintiff has argued that there is no prejudice to the sixth defendant he is in the office there is no stay in his occupation and performance of duties relating there. That in the interest of Justice the matter be allowed to continue. What utility does it serve if it is continued as it is? Given the facts set out agreed in principle that a process was followed at the end of which the decision maker heeded to give the sixth defendant the chair to that position. He is not the author of that decision and cannot be held to account for the assertions that the plaintiff makes. He is nominal like the others except for the National Executive Council who made that decision.
   
9. Counsel applying has drawn the court to Bore v Malaisa [2013] PGNC 93; N5274 (24 July 2013) where a similar situation as here was considered of Order 10 rule 5, Order 9 rule 15 (1), Order 16 Rule 13 (13) (2) of the National Court Rules. There the issue posed was is the factual ground relied upon made out? Have the plaintiffs failed to comply with the directions issued under the Order 16? If the answer is in the affirmative dismissal is not immediate, it needs to be considered further, what is the nature and extent of the failure to comply, whether there is good explanation for it, how have the parties and the lawyers conducted themselves during the course of the proceedings and whether the interest of Justice favour summary disposal. These are relevant consideration applicable here given the facts here which I take due regard in the determination of this matter.
   
10. I have considered the factual basis set out in the affidavits above and view that there is no material on record to show since that order that the proceedings have since moved from there. There is no compliance of the orders that were made by this Court on the 28^th January 2019. From that date up to today's date that would be 10 months 27 days and no substantive motion has been filed and served on the defendants including the sixth defendant. No affidavits have been filed upon which the parties seek to rely upon nor have any been served pursuant. Plaintiff has not served a draft statement of agreed and disputed facts and legal issues and the draft index within 10 days as ordered. The defendants cannot respond where the plaintiff has done nothing up to now. The Plaintiff has not filed and served the Statement of agreed and disputed facts and the legal issues within 10 days. He has not settled filed and served the duly certified Review Book within 10 days. As it is the matter has not moved from where it was at the directions hearing of 28^th January 2019.
    
11. I have considered fully the reasons advanced by the plaintiff and find no basis to warranting the arguments that he advances. In the interest of justice is both sides of the scale for the defendants to concentrate on the provision of public duties that they are called to discharge and not to be worried looking over their backs against litigations by litigants who are not prepared to see it out expeditiously because of their very nature and that delays should not be tolerated. The plaintiff has the onus to take every step to ensure due discharge because there is a degree of urgency reinforced by the rules Order 16 rule 4. Because of their public nature they ought to and must be finalized as here. The office of the Simbu Provincial administrator is the chief executive officer of that province and he must work alongside the Political head to ensure that Simbu runs well and is not hindered by this proceeding. Simbu is an integral part of the country and must give its share to nation building how effective is that with the administrative head Provincial Administrator spending his time in court defending his existence in that office. In my view it serves no utility if there is no urgency demonstrated by, he who asserts to take the matter any further. The facts show otherwise then efficient. This is a forever prevalent scenario that this court sees and must be stopped if there is no substantial merit and determination to bring finality to proceedings instituted.
    
12. I reject the argument that there is no stay order and that the sixth Defendant has nothing to lose. He is in the office performing and earning his gain. By the same token is there any utility for the Plaintiff to maintain this action. Ten months is more than enough time to have put this action through because under the rules it is four months minimum. But that is not confined as the Justice of the case will waiver. Here no waiver has been sought or enlightened here.
    
13. At this juncture I am minded to consider the terms of Order 16 rule 4, “Delay in applying for relief. (UK. 53/4);-

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application; or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

14. Application of this rule and in particular delay and time was considered proficiently in Independent State of Papua New Guinea v Toka Enterprises Ltd [2018] PGSC 89; SC1746 (20 September 2018) where it was a 13-year delay in time. The Supreme Court quashed the National court decision to grant leave. Other Supreme court cases that have held similar views in this matter are Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909 (10 April 2008) which is in similar vein as Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). This court is bound by those given the facts here which are no different in their application to Order 16 Rule 4. Order 16 Rule 13 13 (2) would be in very much similar vein in its application and the law set out in the cases set out above apply. The conduct extent to comply with the direction’s orders of this court by themselves are serious against the lawyers for the Plaintiff. Prudence would have had a stay filed pending the Supreme Court case. Even better would have been the compliance of the orders. Or motion to seek extension to comply with the direction orders. That has not been done by the lawyers. It also reflects on the professionalism of the lawyers engaged.
    
15. There is no urgency shown by the Plaintiff via his lawyers in the ways set out above. And the explanation by affidavit is not substantive and exceptional to allow survival of the case as a whole. In the whole the interest and Justice will not be served to allow continuity of the proceedings. Simbu Province must have certainty in the office of the Provincial administrator and the incumbent and any others similar must be allowed to earn their keep by working not defending court cases aimed at the chair that they hold in the office. That is not to say that due process not followed must be subdued without just cause to the Judgment seat. But it is he who accuses that must prove, not the other way around.
    
16. In all the circumstances for all the reasons set out above I grant the motion of the 6^th Defendant conceded to by the first to the fifth defendants to dismiss the entire proceedings for want of prosecution pursuant to Order16 Rule 13 (13) (2) of the National Court Rules.
    
17. According the motion is granted, the entire proceedings are dismissed with costs forthwith. The costs will for the reasons set out above follow the event.

Orders Accordingly.

__________________________________________________________________

Raurela Lawyers: Lawyer for the Plaintiff Applicant

Kuman Lawyers: Lawyer for the Sixth Defendant

Office of the Solicitor General: Lawyer for First, Second, Third, Fourth and Fifth Defendants