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Karaie v Puruno [2023] PGNC 452; N10598 (1 December 2023)

N10598

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 97 OF 2023 (IECMS)

BETWEEN:
FRANCIS KARAIE for and on behalf of himself and members of the KUMET ANGIGI CLAN
Plaintiff

AND:
KEVIN PURUNO for and on behalf of himself and members of the IPULUMAI NOMBUNOMBU CLAN
First Defendant

AND:
ALEX KALANDI sitting in the MENDI PROVINCIAL LAND COURT
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Dingake J
2023: 9^th November, 1^st December

PRACTICE AND PROCEDURE – whether the applicant failed to plead the decision sought to be reviewed - it is a fundamental requirement to particularize the decision sought to be reviewed so that respondent decision maker may know what case he or she is being called upon to answer - Originating Summons as currently formed in so far as it makes references to the decision sought to be reviewed is inadequate and vague and liable to summary dismissal as contemplated by Order 16 Rule 13 (2)(a) and (b) of the Judicial Review Amendment Rules, 2005 - entire proceedings are dismissed on account of the incompetency of the Originating Summons.

Cases Cited:

Innovest Ltd v Pruaitch (2014) PGNC 288; N5949

Counsel:

Mr. Asher Chillion, for the Plaintiffs
Mr. Justin Issac, for the Defendants

RULING

01^st December 2023

1. DINGAKE J: This is my brief ruling with respect to whether the Plaintiff’s Originating Summons is incompetent for failure to plead the decision sought to be reviewed.
   
2. The background to this matter is that when the leave application was called for a hearing on the 9^th of November 2023, the State raised a preliminary point to the effect that the Originating Summons was incompetent and liable to be dismissed because it failed to plead the decision sought to be reviewed.
   
3. It is a matter of record that after this issue was raised by the State, I suggested to learned Counsel for the Plaintiff, Mr. Chillion that he may consider it appropriate to amend the Originating Summons, but he insisted that the Originating Summons was not incompetent.
   
4. The Plaintiff’s Originating Summons filed on the 18^th of September 2023, stated that:
   

“Pursuant to Order 16, rule 3(1) of the National Court Rules, leave be granted to the Plaintiff to judicially review the decision of the Second Defendant, a Land Court Magistrate, siting as the Provincial Land Court in Mendi, dated 7^th August 2023 in circumstances where the learned Magistrate breached the Plaintiff’s right to natural justice, committed error of law and made a decision that is so unreasonable that a public authority in his position would not have made.”

5. As it is clear from the above, the decision sought to be reviewed has not been particularized and the name of the case is also not indicated. (my emphasis). The requirement to particularize the decision sought to be reviewed was emphasized by my brother Gavara-Nanu J in the case of Innovest Ltd v Pruaitch (2014) PGNC 288; N5949.
   
6. I agree that it is a fundamental requirement to particularize the decision sought to be reviewed so that respondent decision maker may know what case he or she is being called upon to answer.
   
7. The Originating Summons as currently formed in so far as it makes references to the decision sought to be reviewed is inadequate and vague and liable to summary dismissal as contemplated by Order 16 Rule 13 (2)(a) and (b) of the Judicial Review Amendment Rules, 2005.
   
8. Having found that the Plaintiff failed to particularize the decision sought to be reviewed and resisted the suggestion to amend the Originating Summons, the Court finds that the Originating Summons to be incompetent and liable to be dismissed, as I hereby do, pursuant to Order 16 Rule 13 (13)(2)(a) and (b) of the Judicial Review Amendment Rules, 2005.
   
9. I have considered whether a costs order against the Plaintiff would be appropriate and whilst I was so inclined, I notice that the Second and Third Defendants did not pray for costs. In the result, I do not make any order for costs.
   
10. In all the circumstances, the Court makes the following orders:
    
    1. The entire proceedings are dismissed on account of the incompetency of the Originating Summons.
       
    2. There is no Order for costs.

_______________________________________________________________
Chillion Lawyers: Lawyer for the Plaintiffs
Lawama Lawyers: Lawyer for the Defendants