N11486
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 220 OF 2024

BETWEEN:
GAMING JAWULUK
Applicant

AND:
NINGA YAWA
First Respondent

AND:
MR. ASI SINDO-Mining Warden
Second Respondent

AND:
THE CHAIRMAN-Mining Advisory Board
Third Respondent

AND:
HON. JAMES MARAPE-Prime Minister & Acting Minister for Mining
Fourth Respondent

AND:
MR. BOBBY YARI-Acting Registrar of Tenements
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

LAE: DINGAKE J
15 AUGUST, 12 SEPTEMBER 2025

JUDICIAL REVIEW – application to dismiss for failure to cite correct jurisdictional basis by the Respondent – Applicant seeking withdrawal to file a proper application granted – Court held such an application is not prejudicial and is proper.

Cases cited
GR Logging Ltd v David Dotaona & Others (2018) SC1690

Counsel
Mr. Terry Berem, for the applicant 
Mr. Kenneth Aisi, for the first respondent
Ms. Salome Maliaki, for the second, third, fourth, fifth and sixth respondents

RULING

1.	DINGAKE J: This is my ruling with respect to the Respondent’s application to dismiss the review proceeding on the basis that the wrong jurisdictional basis was invoked for the substantive review.

2.	This application is related to the one in OS No. 166 of 2024 and the decision in this Application applies to OS No. 166 of 2024.

3.	The dismissal Application was filed on the 12th of May 2025.

4.	Upon receipt of the Application to dismiss referred to above, the Applicant, on the 28th of May 2025, filed an Application seeking to withdraw the original substantive motion for judicial review filed on the 30th of October 2024.

5.	I heard the above applications together on the 15th of August 2025.

6.	On the 15th of August 2025 I entertained some doubts on the propriety of the application of the Applicant filed on the 28th of May, 2025 and reserved my ruling.

7.	The question that falls for determination is whether it is permissible for the Applicant who, upon receipt of a competency objection, to answer the objection by filing an Application that seeks to correct the omission?

8.	Having reflected deeply on the question, I do not consider that it offends any principle of law or rule of this Court. Neither is such a cause prejudicial. In any event, the First Respondent has not demonstrated any prejudice it would suffer.

9.	Mr. Berem, learned Counsel for the Applicant has brought to my attention the case of GR Logging Ltd v David Dotaona & Others (2018) SC1690, that held that dismissal of a proceeding for reasons other than the determination of the substantive questions pertaining to the cause of action is not final.

10.	It is also trite law that the power to dismiss proceeding is discretionary and the Court must do so in deserving cases. I do not think this is one such deserving case.

11.	In the result, the Court orders:

a)	The first respondent’s application (Doc No. 53) is refused.

b)	The applicant’s motion (Doc No. 22) is granted for withdrawal.

c)	Time is extended for the applicant to file and serve a fresh motion, seeking the same substantive relief and to plead the correct jurisdictional basis, being Order 16 Rule 5(1) of the National Court Rules.

d)	Costs shall be in the cause.
________________________________________________________________
Lawyers for the applicant:				Berem Lawyers
Lawyers for the first respondent:			Aisi Lawyers
Lawyer for the second to sixth respondents:	 	Solicitor General