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David v Provincial Executive Council of the Southern Highlands Provincial Government [2024] PGNC 271; N10938 (5 August 2024)

N10938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2024 (IECMS)

BETWEEN:
JERRY DAVID
Plaintiff

AND:
PROVINCIAL EXECUTIVE COUNCIL OF THE SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
First Defendant

AND:
TAIES SANSAN SECRETARY, DEPARTMENT OF PERSONNEL MANGEMENT
Second Defendant

AND:
THE PUBLIC SERVICE COMMISSION
Third Defendant

AND:
HONOURABLE JAMES MARAPE, MP, PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant

AND:
THE INDPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:
DAVID KELMA
Sixth Defendant

Waigani: Dingake J
2024: 13^th June

JUDICIAL REVIEW - PRACTICE AND PROCEDURE – amended notice of motion – whether competent – earlier motion filed by first defendant seeking orders to dismiss proceedings for not disclosing reasonable cause of action, being frivolous and vexatious and being an abuse of process - amended notice of motion seeks orders for dismissal of proceeding for being defective on grounds that decision-making authority or decision makers of the decision sought to be reviewed was never named as a party to this proceeding and being an abuse of the process of the Court - judicial review is a special, stand-alone procedure that is exclusive – Order 16 National Court Rules

JUDICIAL REVIEW – practice and procedure - proper jurisdictional basis for any interlocutory application pertaining to judicial review proceedings must be located within Order 16 of the National Court Rules and explicitly referred to - where there is no specific rule within Order 16 to invoke the jurisdiction of the Court, it is advisable for lawyers to seek leave of Court - question relating to competency or propriety of bringing an Amended Notice of Motion with respect to interlocutory proceedings pronounced by Kandakasi J in Harry Tovon & 56 Others v Carl Malpo & the State (2016) PGNC52 - practice of filing and proceeding on Amended Notice of Motion is irregular as per Gavara-Nanu J in Amanab Forest Products v Paul Saii & Others (2019) N7947 - an amended Notice of Motion which seeks completely new relief from those in an original Notice of Motion is an abuse of process

JUDICIAL REVIEW – amended notice of motion in Judicial review proceedings brought under Order 16 does not provide for amended Notice of Motion with respect to interlocutory applications - Amended Notice of Motion is irregular within the meaning of “irregularity” referred to in the case of Harry Tovon (per Kandakasi J) - Amended Notice of Motion is an abuse of Court process as the grounds contained therein are vastly and significantly different from those of the original Notice of Motion- amended notice of motion dismissed

Case Cited:

Harry Tovon & 56 Others v Carl Malpo & the State (2016) PGNC 52
Amanab Forest Products v Paul Saii & Others (2019) N7947

Counsel:

Mr. Laias Kandi, for the Plaintiff

Mr. Rajiv Puyan, for the First Defendant

Mr. Kevin Kipongi, for the Second, Fourth & Fifth Defendant

Mr. Pep Warep, for the Sixth Defendants

RULING

05^th August 2024

1. DINGAKE J: This is my Ruling with respect to the competency and or propriety of an application, brought by way of an amended Notice of Motion by the First Defendant.
   
2. The Amended Notice of Motion was filed on the 20^th of May 2024, (Document No. 26). The Notice of Motion purports to amend an earlier Notice of Motion by the First Defendant filed on the 14^th of May 2024.
   
3. In the earlier Motion filed on the 14^th of May 2024, the First Defendant, brought an application, inter alia, pursuant to Order 12 Rule 40(1) of the National Court Rules (NCR) seeking the dismissal of the proceedings or that the said proceedings be struck out on the grounds that:
   
   1. No reasonable cause of action is disclosed.
   2. The proceedings are frivolous and vexatious; or
   100. The proceedings are an abuse of the process of the Court.
4. The Amended Notice of Motion on the other hand seeks that the proceedings be summarily dismissed for being defective on the grounds that:
   
   • (a) The decision-making authority or decision makers of the decision sought to be reviewed was never named as a party to this proceeding; and
     
   • (b) For being an abuse of the process of the Court.
     
5. The material background to this matter is that the Plaintiff was at all material times hereto the Administrator of Southern Highlands Provincial Government (SHPG).
   
6. It is common cause that on the 16^th of February 2024, the Plaintiff’s appointment as the Administrator of Southern Highlands Provincial Government (SHPG) was revoked. This is what triggered the current judicial review proceedings.
   
7. This Court granted the Plaintiff leave to bring judicial review proceedings against the Defendants on the 12^th of March, 2024.
   
8. Following the granting of leave, the matter was supposed to proceed for substantive judicial review hearing. However, on the 15^th of May 2024, the matter served before my brother Dowa J.
   
9. The record suggests that the application by the First Defendant to summarily dismiss the proceedings was not entertained that day as Dowa J was of the view that since leave has been granted for judicial review, then the application for dismissal can be raised at the substantive judicial review hearing.
   
10. It would seem that notwithstanding Dowa J’s inclination the First Respondent is insistent that the Amended Notice of Motion be heard and determined.
    
11. Mr. Kandi learned Counsel for the Plaintiff opposes the said application on the basis, inter alia, that the NCR do not make provision for Amended Notice of Motion and further that there was no Notice of Motion to amend as Dowa J had, on the 15^th of May 2024, refused the Notice of Motion filed on the 14^th of May, 2024.
    

Consideration

12. It is settled law that in this jurisdiction judicial review is a special, stand-alone procedure that is exclusive.
    
13. The relevant rules of Court are those found in Order 16 of National Court Rules.
    
14. It follows from the above that the proper jurisdictional basis for any interlocutory application pertaining to judicial review proceedings must be located within Order 16 of the National Court Rules and explicitly referred to.
    
15. In circumstances where there is no specific rule within Order 16 to invoke the jurisdiction of the Court, it is advisable for lawyers to seek leave of the Court. This Court as a fountain of justice has the inherent jurisdiction and or discretion to entertain such an application and pronounce its position as it deems fit.
    
16. The question relating to the competence or propriety of bringing an Amended Notice of Motion with respect to interlocutory proceedings was deprecated by my brother Kandakasi J (as he then was) in Harry Tovon & 56 Others v Carl Malpo & the State (2016) PGNC 52.
    
17. In the above case the Court pointed out that the practice of filing and proceeding on Amended Notice of Motion is irregular and should cease immediately.
    
18. The Court further indicated that where there is a change regarding the basis upon which a particular relief in a Notice of Motion is sought or the kind of relief changes so much that the motion cannot be moved on the basis of the original notice, the motion should be withdrawn and a new one filed instead, incorporating the changes required.
    
19. In the case of Amanab Forest Products v Paul Saii & Others (2019) N7947, Gavara-Nanu J at paragraph 16 said that an amended Notice of Motion which seeks completely new relief from those in an original Notice of Motion is an abuse of process.
    
20. I am in broad agreement with the views of my brothers Kandakasi J and Gavara-Nanu J as indicated above.
    
21. In my view, the practice of bringing Amended Notice of Motion concerning interlocutory applications, which is not provided in the rules – without even an attempt to seek leave to do so is undesirable and amounts to an abuse of Court process.
    
22. I notice that this Amended Notice of Motion sought to shift the goal post in a fundamental way to the extent that the original Notice of Motion was anchored on Order 12 Rule 40(1) of the National Court Rules, whilst the Amended Notice was anchored on Order 16 Rule 13(3)(2)(a) and (b)(a) of the Judicial Reivew (Amendment) Rules 2005 of the National Court Rules.
    
23. The grounds upon which the dismissal was sought were also materially different. This shifting of goal posts in this manner is confusing and undesirable.
    
24. Having regard to all the above, I am inclined to dismiss this Amended Notice of Motion for one or all of the following reasons:
    1. The First Defendant did not seek leave of Court to file an Amended Notice of Motion, in circumstances where the National Court Rules, in particular Order 16, does not provide for amended Notice of Motion with respect to interlocutory applications.
    2. The Amended Notice of Motion is irregular within the meaning of “irregularity” referred to in the case of Harry Tovon (per Kandakasi J).
    100. The Amended Notice of Motion is an abuse of Court process as the grounds contained therein are vastly and significantly different from those of the original Notice of Motion.
    4. My Brother Dowa J has already refused to entertain the application and suggested that the issues raised in the Amended Notice of Motion can be raised during the substantive judicial review application.
25. I turn to the issue of costs.
    
26. Mr. Kandi has prayed that in the event this Court finds in favour of the Plaintiff, it must dismiss the application with costs, on an indemnity basis.
    
27. I understand why Mr. Kandi would seek costs on an indemnity basis. The manner in which the First Defendant sought to have the Amended Notice of Motion heard and determined is an abuse of Court process. However, although I was amenable to grant costs on an indemnity basis, I do not think that the Plaintiff laid sufficient factual foundation for it. Costs on indemnity basis are refused.
    
28. In the result, the Court orders as follows:
    
    1. The Amended Notice of Motion filed on the 20^th of May 2024 (Document No. 26) is dismissed with costs (on a party-to-party basis) – such costs to be agreed or taxed.
       

_____________________________________________________________

M.S Wagambie Lawyers: Lawyer for the Plaintiff

Baniyamai Lawyers: Lawyer for the First Defendant

Office of the Solicitor General: Lawyer for the Second, Fourth & Fifth Defendants

Harvey Nii Lawyers: Lawyer for the Sixth Defendant