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Ambihaipahar v Kapavore [2025] PGNC 315; N11453 (27 August 2025)

N11453

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS (JR) NO. 49 OF 2025


BETWEEN:
DR UMADEVI AMBIHAIPAHAR as Acting Director of the Directorate for Social Change and Mental Health Services
Plaintiff


AND:
HONOURABLE ELIAS KAPAVORE in his capacity as the Minister for National Department for Health
First Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


AND:
DR NELSON MEK
Third Defendant


WAIGANI: PURDON-SULLY J
5, 27 AUGUST 2025


JUDICIAL REVIEW - COMPETENCY – Where the First and Third Defendant filed a notice of motion to dismiss the proceedings based on competency – Where Plaintiff raises her own ground of competency - Whether the First and Third Defendant’s reliance on a jurisdictional basis in Order 12 Rule 40(1) of the National Court Rules and s 155(4) of the Constitution for summary disposal of the proceedings in addition to that provided in Order 16 Rule 13 (13)(2) of the National Court Rules renders their notice of motion to dismiss an abuse of process – Plaintiff’s competency ground upheld – First and Third Defendants invoked the correct jurisdiction under Order 16 Rule 13 (13)(2) –Judicial review is a special process exclusively provided for by Order 16 of the National Court Rules - Invoking the same jurisdictional power elsewhere in the National Court Rules is an abuse of process – First and Third Defendant’s notice of motion dismissed.


Cases cited
Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280
New Guinea Gold Ltd v Chan [2022] N9599
Papua New Guinea Forest Authority v Sukiri Investment Limited [2025] N11451
Peter Makeng v Timbers (PNG) Limited [2008] PGNC 78; N3317
Alex Timothy v Hon Francis Marcus (2014) SC1403
Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Les Curlewis v. Reuben Renagi & Ors SC1274
Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844


Counsel
Mr J Siki for the plaintiff
Mr A Manase for first and third defendants


DECISION


  1. PURDON-SULLY J: This is the Court’s ruling on the competency of the First and Third Defendant’s notice of motion (motion) filed 10 June 2025 seeking dismissal of the Plaintiff’s proceedings for judicial review.
  2. The Plaintiff is a psychiatrist who was employed at the Laloki Public Psychiatric Hospital and Correctional Services of prisons in Papua New Guinea.
  3. In 2017 she was appointed as Acting Director of the Directorate for Social Change and Mental Health Services by the then Minister for Health.
  4. On 15 January 2025 she was served with a letter of suspension dated 8 January 2025 by the First Defendant.
  5. On 10 February 2025 she filed judicial review proceedings OS(JR) No 5 of 2025 seeking leave to review the decision to suspend her.
  6. On 4 March 2025 the First Defendant served the Plaintiff with a notice of revocation of her appointment and appointed the Third Defendant as Director.
  7. The notice of revocation and the appointment of the new Director was gazetted dated 29 January 2025.
  8. On 3 April 2025 the Plaintiff withdrew her judicial review proceedings and on 28 April 2025 commenced fresh proceedings seeking leave to review the decision to revoke her appointment.
  9. On 8 May 2025 leave to review the decision to revoke was granted by a Judge of this Court. By the same order the Third Defendant was added as a party to the proceedings.
  10. On 9 May 2025 the Plaintiff filed a further notice of notion seeking a stay and injunctive orders.
  11. On 19 June 2025 the First and Third Defendants filed their motion for dismissal of the Plaintiff’s proceedings for being incompetent for failing to disclose a reasonable cause of action, for being frivolous and vexatious and an abuse of process.
  12. The Plaintiff however raises a ground of competency with respect to the First and Third Defendant’s motion which is the subject of this ruling.
  13. The First and Third Defendant’s motion is in the following terms:
    1. Pursuant to Orders 16 Rule 13(13)(1) and (2)(a) and (b)(a) and Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules (NCR), this proceeding be dismissed for being incompetent as it fails to disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of process of the Court for the following reasons:
      1. The Plaintiff’s initial appointment by Hon Michael Malabag, the Minister for Health & HIV/AIDS by National Gazette No G123 dated 21 March 2013 under Section 9(1) of the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (the “RSA” Act) as the Acting Director for the Directorate for Social Change & Mental health Services (the “DSCMHS”) was illegal or unlawful and therefore ab initio, because:
        1. There was no Regulatory Statutory Authority or body corporate established by an Act of Parliament called the DSCMHS at the relevant time to which the RSA Act should have been applied to make the Plaintiff’s acting appointment.
        2. The Mental Health Act 2015 which crated the DSCMHS was passed by Parliament in 2015 which is 2 years after the Plaintiff’s acting appointment as made.
        1. The Mental Health Act 2015 was certified on 9 February 2016 which is 3 years after the Plaintiff’s acting appointment was made hence it was not in force at the time of the Plaintiff’s appointment.
        1. The Plaintiff therefore has no legal or legitimate right or standing to seek the Court’s equitable jurisdiction to review the process allegedly breached.
    2. Pursuant to Orders 16 Rule 13(13)(1) and (2)(a) and (b)(a) and Order 12 Rule 40(1)(a), (b) and (c) of the NCR, this proceeding be dismissed for being incompetent as it fails to disclose a reasonable cause of action, it is frivolous and vexatious and it is an abuse of process of the Court for the following reasons:
      1. The Plaintiff’s initial appointment by Hon Michael Malabag, the Minister for Health & HIV/AIDS by National Gazette No G123 dated 21 March 2013 under Section 9(1) of the RSA Act, as the Acting Director for the DSCMHS was illegal or unlawful and therefore ab initio, because:
        1. The Minister for Health did not have the authority or power to make such an acting appointment of the Plaintiff under Section 9(1) and (2) of the RSA Act.
        2. The procedure for acting appointment by NEC under Section 9(1) and (2) of the RSA Act was not complied with.
        1. The acting appointment of the Plaintiff for an indefinite period was contrary to the three (3) month period prescribed by Section 9(1) of the RSA Act.
        1. The RSA Act did not apply to the DSCMHS by reason of Section 2 & 3 of the RSA Act as it was approved by NEC Decision No 265/2010 and only came into existence after the Mental Health Act came into effect in 2016.
        2. The Plaintiff therefore did not acquire a legitimate legal right capable of granting her standing to initiate these proceedings.
    1. Pursuant to Orders 16 Rule 13(13)(1) and (2)(b)(a) and Order 12 Rule 1 of the NCR, and/or s 155(4) of the Constitution:
      1. The Notice of Motion filed on 28 April 2025 (Doc #3) and the similar Notice of Motion filed n 9 May 2025 (Doc #10) seeking stay and restraining orders be both struck out for being an abuse of process.
      2. The Notice of Motion filed on 9 May 2025 be dismissed or struck out as it is not supported by an Affidavit and an Undertaking as to Damages.
      3. The Notice of Motion filed on 9 May 2025 be dismissed or struck out for being defective as it cites or uses the wrong jurisdictional basis for the Orders sought therein.
    1. The Statement in Support filed on 28 April 2023 is defective and therefore renders the entire proceedings incompetent pursuant to Orders 16 Rule 13(13)(1) and (2) (a) and (b)(a) of the NCR, Order 12 Rule 1 of the NCR, and/or s 155(4) of the Constitution for the following reasons:
      1. It does not meet the requirements of Order 16 Rule 3(2)(a) of the National Court Rules as there is no summary of the relevant facts constituting e grounds relied upon or pleaded.
      2. The grounds are not succinct or stated clearly and supported by facts.
      3. Part B. The decision which is the subject of the review is not a fact.
      4. The relief sought in paragraphs C 1, 2, 3 & 4 are not supported by the grounds set out therein.
    2. The Affidavit Verifying Facts of Dr Umadevi Ambihaipahar filed 28 April 2025 does not verify or refer to the facts intended for verification or any facts thereof because none is pleaded or referred to in her Affidavit as required by Order 16 Rule 3(2)(b) of the NCR and therefore renders the entire proceedings incompetent pursuant to Orders 16 Rule 13(13)(1) and (2) (a) and (b)(a) of the NCR, Order 12 Rule 1 of the NCR and/or 155(4) of the Constitution.
    3. Costs of this application and the entire proceedings be awarded to the First and Third Defendants.
    4. Time to abridge.
    5. Such further or other orders this Court deems fit.
  14. Order 16 Rule 13(13) (1) and 2 provides that:

13. Other matters.

(1) Motions.

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal.

  1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
  2. The Court may summarily determine a matter:

(a) on application by a party; or

(b) on the Court’s own initiative; or

(c) upon referral by the Registrar in accordance with the procedure set out in (3) below.

  1. I pause here to observe that during the course of oral submissions, it became apparent that the numbering in Order 16 Rule 13 (13) relied upon by both Counsel, and based on a publication of the rules by PACLII was different to the numbering in my copy of the NCR published by the Court. For example, the numbering of Order 16 Rule 13(13)(2)(b) in my copy of the rules is (i),(ii) and (iii), not (a), (b) and (c) in the PACLII copy of the rules. For the purpose of these reasons I have adopted the numbering used by both Counsel. I have otherwise brought this discrepancy to the attention of the Court.
  2. Order12 Rule 40 (1) provides:

Order 12


40. Frivolity, etc. (13/5)


(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—


(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,


the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.


  1. Order 12 Rule (1) provides:

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such an order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.


  1. Section 155(4) of the Constitution is in these terms:

(4) Both the Supreme and National Court have an inherent power to make, in such circumstance as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.


OBJECTION TO COMPETENCY


  1. The Plaintiff raises two grounds based on competency. First, she contends that the First and Third Defendants have relied upon an incorrect jurisdictional basis for orders for summary dismissal of the judicial review proceedings which renders the motion a nullity. Second, it is contended that the First and Third Defendants’ reliance on an affidavit in support of its motion to dismiss, which was not filed at the same time as the motion, but earlier, offends Order 4 Rule 49(12) of the National Court Rules (NCR) which requires all affidavits in support of the notice of motion to be filed together with the motion on the same date. To this end and in consequence the Plaintiff should be precluded from relying upon that earlier affidavit.

THE ISSUES


  1. The issues are two-fold:
    1. Having invoked the correct jurisdictional basis to dismiss under Order 13 (13)(2) of the NCR did the First and Third Defendants’ reliance on a further bases found in the NCR and the Constitution render their motion an abuse of process; and
    2. Having filed their motion supported by an affidavit filed at the same time are the First and Third Defendants able to rely upon an affidavit filed earlier.

ARGUMENTS


  1. Turning to the Plaintiff’s first ground on competency, it is submitted on her behalf that the practice and procedure in judicial review is that it is exclusively and exhaustively provided for under Order 16 of the NCR and it is an abuse of process to have recourse to other rules of the National Court which provide for the same or similar provisions such as Order 12 Rule 40(1). It is submitted that this provision provides the grounds and the power of the Court to make orders summarily to dismiss a proceeding inter alia on competency grounds, that power also provided in Order 16 Rule 13(13)(2) of the NCR. By invoking other provisions or rules of the NCR and the Constitution in is motion the First and Third Defendant have abused the process of the Court. In support the Court was referred to a number of authorities including the Supreme Court decision of Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280 and the National Court decision in New Guinea Gold Ltd v Chan [2022] N9599. A summary dismissal is a serious application given the consequences for the Plaintiff and if the First and Second Defendants are seeking dismissal then they need to do it on a proper basis.
  2. It is further submitted on behalf of the Plaintiff that the prejudice of dismissal to the Plaintiff is significant and having been granted leave and having now filed a Notice of Motion for substantive relief under Order 16 Rule 5(1), the matter is ready for trial and should be allowed to proceed to trial.
  3. It is submitted on behalf of the First and Third Defendants that there can be no harm or unfairness to the Plaintiff in their invoking other provisions of the NCR as that invocation has occurred within Order 16, namely through Order 16 Rule 13(13)(1), and where the terms of Order 13 Rule 13 (2)(a) only refer to competency without definition the composite approach adopted by the First and Third Defendants enables the competency complained of to be specified. In this case, it is dismissal on the basis of a purported failure to disclose a cause of action and for being frivolous and vexatious and an abuse of process, the specific grounds referred to in Order 12 Rule 40(1) of the NCR. Reliance was placed on my unpublished decision in Papua New Guinea Forest Authority v Sukiri Investment Limited (Papua New Guinea Forest Authority) delivered on 5 June 2025. In that case, the First Defendant, who was represented by the same firm of lawyers as the First and Third Defendants in this case, relied upon a similar jurisdictional basis to that relied upon in the present case to ground an application to dismiss the proceedings. In Papua New Guinea Forest Authority, in concluding that that approach was not an abuse of process I did so for the following reasons which appear at [52] (e) and (f) of the judgement:
    1. While the issue of competency raised by the First Defendant must be grounded in Order 16 (Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96 at [13]), the Court is not persuaded that the use of the conjunction “and” in its reliance on Order 16 r 13(13) and Order 12 r 40 in its Motion to dismiss renders the First Defendant’s application incompetent or otherwise offends the well-established principle that judicial review proceedings are completely and exhaustively governed by the provisions of Order 16 (Peter Makeng v Timbers (PNG) Limited [2008] PGNC 78; N3317; Alex Timothy v Hon Francis Marcus (2014) SC1403; Church of Jesus Christ of Latter Day Saints Inc v Kimas [2022] PGSC 96; SC2280; Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 at [7]).
    2. Decisions of the Supreme and National Courts in this jurisdiction have reinforced the principle that the rules are a means to an end, not an end in themselves, and that the Court should always be looking to do justice on the merits of the case and not necessarily compliance or non-compliance with the rules (Church of Jesus Christ of Latter Day Saints Inc v Kimas (supra) at [14] - [17]). Further, not every departure from the rules suggests unfairness, in this case the Plaintiff’s application also grounded in Order 16. Even if the Court is wrong in so concluding, the competency issues raised by the First Defendant go to the jurisdiction of the Court to determine the matter and the Court, as the protector of its process, has an obligation to address the matter.

CONSIDERATION


  1. The correct jurisdictional basis for the orders sought by the First and Third Defendants is Order 16 Rule 13 (13) (2)(a) and (b)(a) of the NCR. It is a specific provision within Order 16 that enables the summary disposal of a judicial view matter inter alia on the ground of competency and on application by a party. The First and Third Defendants invoked that provision. In my view they needed to do no more.
  2. Judicial review proceedings are completely and exhaustively governed by the provisions of Order 16 of the NCR. Given the specific provision for summary dismissal within Order 16, any further reliance on other provisions of the NCR to summarily dispose of judicial review proceedings will inevitably run into the headwinds of settled principles enunciated in National and Supreme Court authorities (Peter Makeng v Timbers (PNG) Limited & Ors [2008] N3117; Alex Timothy v Hon Francis Marus [2014] SC 1403; Peter O’Neill v Nerrie Eliakim [2016] SC1539; Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280; Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485).
  3. In the recent Supreme Court decision of Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485, the Court (Kandakasi DCJ, Murray & Kangwia JJ) said at [7]:

7. The law on process and procedure for judicial review proceedings is now clearly established law. Judicial review is a special process. As such, it is exclusively provided for by Order 16 of the National Court Rules 1989. Hence, any application for judicial review and any issue as to its competence, summary dismissal and any other issue needs to be taken in accordance with the process and procedure provided for thereunder. This means the other provisions in the National Court Rules do not apply to judicial review proceedings.


  1. Similarly, given the availability of a remedy within Order 16, s 155(4) of the Constitution would not apply (Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 (Jalina, Gavara-Nanu & Kandakasi JJ at [41]). It is only where there is no remedy provided under other law it may be that s 155(4) of the Constitution will come to the aid of a litigant to provide the jurisdictional basis for the Court to make “such orders as are necessary to do justice in the particular circumstances of a case”, the person seeking to so benefit having an obligation to demonstrate a case of his rights or interests being affected or that he stands to suffer damage or prejudice and has not remedy available to him under any other law.
  2. Similarly, the “doorway” provided by Order 16 Rule 13(13) to other rules in the NCR should not, in my respectful view, be used to “cover all bases”, that is, as a way of preparing for every possibility or potential scenario to ensure the success of an application.
  3. My decision in Papua New Guinea Forest Authority was not meant to be taken as a licence to ignore or seek to circumvent the principle that judicial review proceedings are completely and exhaustively governed by Order 16 of the NCR. That is not to suggest that the application of the established principles to which I have referred leaves no room for the Court to exercise its discretion in an appropriate case to address prejudice or injustice to a party and thus ensure that the interests of justice are served (Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 at [32] citing with approval Les Curlewis v. Reuben Renagi & Ors SC 1274). I pause here to observe that the exercise of the Court’s discretion in that regard will often involve a fine balance, one that may in the end be separated by only the smallest margin.
  4. The facts and circumstances of the Papua New Guinea Forest was such a case where the Court concluded that its discretion favoured dismissal of the competency ground raised by the Plaintiff by reason of the First Defendant’s reliance on provisions that were found outside of Order 16. The Court went on to find however that if its decision in that regard was incorrect, the circumstances before it were such that on its own motion it had a duty to address the competency grounds raised by the First Defendant, its power to do so clear from Order 16 Rule 13(13)(2)(b)(b).
  5. In the case at hand, the Court is not persuaded that the rationale for the First and Third Defendants’ approach and its reliance on provisions outside of Order 16, namely a lack of particularity as to the nature of the competency within the relevant Order 16 rule for summary disposal is reason sufficient to venture outside of Order 16.
  6. The orders as particularised by the First and Third Defendants in their motion made clear the nature of the abuse of process that was being asserted to ground their objection to the competency of the proceedings supplemented by the affidavits in evidence relied upon.
  7. The decision of New Guinea Gold Ltd v Chan [2022] N9599 relied upon by the Plaintiff if not directly on point other than providing support for the exclusive nature of judicial review proceedings being grounded in Order 16.
  8. The facts of the case were that by way of a Notice of Motion filed on the 13th of September, 2021, the Second and Third Defendants sought orders inter alia pursuant to Order 16 Rule 13(13) (1) and (2) (a) and (b) of the National Court Rules and the inherent jurisdiction of the Court, to summarily dismiss the proceedings in their entirety or alternatively in respect of the proceedings by the First Plaintiff.
  9. Preliminarily, the Plaintiff raised the point that the Notice of Motion filed on the 13th September, 2021 was incompetent in that it had taken about seven months to move it and it offended Order 4 Rule 49(17) of the NCR.
  10. Order 4 Rule 49(17) provides that:

17. Dismissal /Striking out of Motions.

The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.

  1. The learned Judge found that the invocation of Order 4 Rule 49(17) in judicial review proceedings was misplaced in that Order 16 Rules were exclusive to judicial review applications and the Plaintiff could not thus invoke Order 4 Rule 49(17) of NCR, a similar provision found elsewhere in the NCR in so far as it dealt with dismissal/striking out when Order 16 contained its own provisions for summary disposal.
  2. His Honour was thus not persuaded to exercise his discretion to invoke Order 4 Rule 49(17) and the Plaintiff’s application to dismiss was refused.
  3. His Honour then went on to consider the merits of the First and Second Defendant’s application to dismiss concluding that the Plaintiff’s proceedings should not only be dismissed for want of prosecution based on inordinate unexplained delay but were otherwise not sustainable as they breached critical provisions of the Companies Act.

CONCLUSION


  1. In conclusion, while I further acknowledge that the conjunction “and” may have an exclusive and inclusive meaning, I uphold the Plaintiff’s objection and dismiss the motion for the failure of the First and Third Defendants to rely on the specific provision for summary dismissal provided for in Order 16, a provision sufficient to address their complaint.
  2. In consequence, the motion is dismissed.
  3. Having do determined it is not necessary for the Court to consider the Plaintiff’s second ground of complaint.

ORDERS


  1. The following orders flow:
    1. The First and Third Defendants’ Notice of Motion filed 10 June 2025 is dismissed.
    2. The First and Third Defendants pay the Plaintiff’s costs on a party/party basis to be agreed or taxed.
    3. Time to abridge.

Lawyers for the plaintiff: Jerry Siki Lawyers
Lawyers for the first & third defendants: Manase & Co Lawyers

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