SC2779
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 42 OF 2023

BETWEEN:
KILO SIBOLO
Appellant

AND:
TREVOR MAGEI 
in his capacity as Acting Provincial Administrator, Oro Province
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: HARTSHORN J, PURDON SULLY J, CROWLEY J
      1, 3 OCTOBER 2025

PRACTICE AND PROCEDURE – on a judicial review a court has power to dismiss an application on its own motion pursuant to Order 16 Rule 13(13)(2)(ii)- a court need not state the precise order under which it is proceeding- a notice of motion in a judicial review is a substantive document and the court has no jurisdiction to proceed without it 

Held
By the Court:

(1)	Appeal dismissed
(2)	The cost of the appeal are reserved to a date for hearing, to be allocated.

Cases cited
Alex Timothy v. Hon Francis Marus (2014) SC1403
Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342
Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485
Longai v Maken [2008] PGNC 253; N4021 

Counsel
John Napu, for the appellant
G W Wangi for the first and second respondent

JUDGMENT

1.	BY THE COURT: This is an appeal against a decision to dismiss a judicial review proceeding for a failure to comply with Order 16 Rule 5(1). The appellant was granted leave to commence a judicial review but failed to file a Notice of Motion. More than a year later he sought an extension of time from the Court. It was not granted and the matter dismissed.

Background
2.	The appellant had been an employee of Oro Provincial Administration all his working life. By 2013 he had risen to the position of Deputy Provincial Administrator- Corporate Affairs. Twice criminal charges were brought against him. While those charges were pending the appellant was suspended indefinitely. By November 2017 the last of these charges were dismissed by National Court. The appellant was not reinstated to the position of Deputy Provincial Administrator- Corporate Affairs. He took the matter to the Public Service Commission. By October of 2019 the Public Service Commission ruled in his favour. However, the Provincial Administrator still did not reinstate the appellant to the role of Deputy Provincial Administrator- Corporate Affairs. 

3.	On 30 November 2020 the appellant filed an application for leave to judicially review the failure of the Provincial Administrator to reinstate him. On 15 July 2022 the National Court granted him leave. Seeing some prospect that the matter might resolve without the need for a hearing, the National Court ordered the Provincial Administrator and the Department of Personnel Management to “... forthwith take all steps necessary to address and resolve the issues raised in the substantive proceeding and resolve those well before the next return date.” 

4.	The court further ordered that the matter should return on 10 October 2022. 

5.	It seems from the Appeal Book that the next time the matter came before the Court was 8 September 2023. On this day it was adjourned. On 21 September 2023 the appellant filed a Notice of Motion seeking an extension of time in which to file and serve “their substantive Notice of Motion”. The matter came on 14 November 2023. 

6.	In submissions before the judge, counsel for the appellant said they had “overlooked the motion” because their energies were focused on resolving the matter as encouraged by the orders of the National Court.

7.	At the hearing on 14 November 2023 the appellants apologised for the oversight.

8.	The judge dismissed the judicial review for a failure to comply with Order 16 Rule 5(1) of the National Court Rules.

Law

9.	Order 16 Rule 5(1) provides that when leave is granted to make an application for judicial review, the application shall be made by Notice of Motion. That provision is mandatory. It uses the word “shall”. In the ordinary course, on application for leave, the applicant exhibits a copy of the Notice of Motion they intend to file to their supporting affidavit. Order 16 Rule 5 does not prescribe a time in which the Notice of Motion must be filed after leave is granted. However, Order16 Rule 5(4) provides that within 21 days after the grant of leave, the Notice of Motion shall be allocated a date for hearing by the Registrar. This implies that the Notice of Motion must be filed within 21 days from the grant of leave. 

10.	This Court has, on many occasions articulated the proposition that Judicial Review is governed by Order 16 and recourse should not be had to other provisions of the National Court Rules (see for example Alex Timothy v. Hon Francis Marus (2014) SC1403, per Injia CJ, Davani J & Gabi J at [18]-[20], see also Dads Investment Corporation Ltd v Samson [2023] PGSC 134; SC2485 at [7]-[12].

11.	The filing of the Notice of Motion is an essential prerequisite for instituting an application for judicial review under O16 and upon which basis the Court assumes jurisdiction to deal with the application. (Longai v Maken [2008] PGNC 253; N4021 per Injia CJ at [12])

Grounds of Appeal

12.	There are four grounds of appeal. Simply stated they are: 

a.	That the judge erred in dismissing the entire proceeding when no application to dismiss the proceedings was before the court; 

b.	That the judge erred in law and fact by failing to give necessary consideration to the fact that the appellant was influenced by the earlier court orders encouraging the parties to resolve the matter;

c.	That in dismissing the proceedings the judge misapprehended the notion of justice and gave too much weight to the procedural requirements of Order 16; and

d.	That there was no substantive or procedural basis in law to dismiss the proceedings. 

Application of law to the facts

13.	As to the first ground of appeal, the court can act on its own motion to dismiss proceedings for noncompliance with directions of the court. It does not need to wait for a party to apply to have the matter dismissed. That is expressly provided for in Order 16 Rule 13(13)(2(b)(ii). That rule identifies that the court can summarily determine a matter “on the Court’s own initiative”.   Counsel for the appellant said that the judge did not explicitly state that that was the rule he evoked to dismiss the proceedings therefore the judges’ actions were invalid. Counsel for the appellant did not cite any authority to support that proposition. We think that it is plainly wrong. 

14.	The second ground is that the judge failed to consider the fact that the appellant was focused on settling the matter and that is why they failed to file their notice of motion. However, the judge did consider the appellants excuse for its failure to file as required. After the appellant counsel explained why they had not filed the judge said: 

All right, counsel, I hear what you are saying and I – what I am hearing is something called someone else’s problem and fault and not counsel. From 2022 to 2023 is over a year. So, there has been sufficient time with which to address this.

15.	Clearly his Honour considered that there had been time to both attempt to resolve the matter and to file the Notice of Motion. The judge considered the appellant’s explanation and did not find it sufficient. Therefore, the second ground of appeal must fail.

16.	The third ground of appeal is that in dismissing the proceedings the judge misapprehended the notion of justice and gave too much weight to the procedural requirements of Order 16. This presumably is a complaint that the judge did not consider the substantive claim of the appellant. But as the case of Longai v Maken identifies, without a Notice of Motion having been filed there was no jurisdiction to consider the substantive merits of the appellant’s case. There was nothing before the court for the judge to consider. 

17.	In his written submissions regarding this ground of appeal the appellant identified that s158 of the Constitution had been breached because the court is obliged to dispense justice. This Court has held that the meaning of “dispensation of justice” is justice according to law. That would include the National Court Rules (see for example Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342; Kidu CJ, Kapi DCJ, Andrew J). It is not unjust for the Court to require strict compliance with its own rules.  Therefore ground 3 of the appeal must fail.

18.	Finally, the appellant argues that there was no substantive or procedural basis in law to dismiss the proceedings after leave had been granted. As identified above Order 16 Rule 13(13)(2) expressly empowers the court to summarily dispose of a matter. Further, the court always has a power to govern its own processes. This ground must also fail.

Conclusion

19.	The appellant was given leave to file a Notice of Motion on 15 July 2022. More than a year later he still had not filed that Notice of Motion. The dismissal of a judicial review proceedings is an exercise of discretion. The judge was entitled to dismiss the proceedings for a failure to comply with the rules. The appellant has not demonstrated that the discretion miscarried. The appeal is dismissed.

20.      BY THE COURT: The order of the Court is:

(1)	The Notice of Motion filed on 27 December 2023 is dismissed.
(2)	The cost of the appeal is reserved to a date for hearing, to be allocated.

Lawyers for the appellant: Napu & Company 
Lawyer for the respondents: Solicitor General