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Papua New Guinea Court Rules |
PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE
NATIONAL COURT JUDICIAL REVIEW (AMENDMENT) RULES 2005
JUDICIAL REVIEW (AMENDMENT) RULES 2005
Pursuant to Section 184 of the Constitution and Section 8 of the National Court Act
(Chapter No. 38) and all other powers thereunto enabling, the following rules prescribing the practice and procedure of the National
Court of Justice relating to the conduct of judicial review from decisions of statutory authorities and tribunals, shall come into
force on a date specified in the Rules.
These Rules are in addition to and form part of the judicial review procedure contained in Order 16 of the National Court Rules.
Dated and signed by the Judges on this 27th day of September 2005 .
Chief Justice, Sir Mari Kapi, Kt; CSI
Deputy Chief Justice, Sir Salamo Injia, Kt.
Justice Sir Kubulan Los, Kt.
Justice Timothy Hinchliffe, CBE
Justice Gibbs Salika, OBE
Justice Moses Jalina, OBE
Justice Bernard Sakora, CBE
Justice Mark Sevua
Justice Don Sawong, MBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE
Justice Ambeng Kandakasi
Justice Ellenas Batari, MBE
Justice Catherine Davani
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Greg Lay
Justice David Cannings
Justice George Manuhu
Justice Kingsley Allen David
Justice Sao Gabi
Order 16 of the National Court Rules is amended by inserting the following:
" 13. Judicial Review (Amendment) Rules 2005
Purpose
The purpose of these Rules is to prescribe procedures for the conduct of judicial review cases in the National Court with the establishment of a separate Judicial Review List The conduct of this list will be administered by a judge assigned by the Chief Justice. These Rules replace previous practice directions and notes issued by the Registrar on the conduct of judicial review matters in the National Court. As from the date of coming into operation of this these Rules, all previous practice directions & notes on judicial review will cease to apply. These Rules are intended to improve the disposition of judicial review cases in the National Court in a quick, fair and cheap manner.
These Rules are intended to be read consistently with the judicial review procedure contained in Order 16 of the National Court Rules.
Judicial Review proceedings involve a review of the decision-making process of statutory tribunals or authorities. They involve applications in the nature of mandamus, prohibition, certiorari or quo warranto under the procedure set out in Order 16 of the National Court Rules and they include actions for:-
The grounds of review include those specified by statute and subject to the Constitution or any relevant statute, those grounds recognized by common law, including:-
1. Judicial Review List
The Registrar shall maintain a Judicial Review List which contains all judicial review cases pending determination in the National Court The list shall be updated at the end of every circuit month.
2. File Reference
Judicial review matters bearing the following file reference shall be listed in the Judicial Review List –
OS (JR) No. ........of ....... – Application for judicial review commenced by Originating Summons.
3. Judge
The Chief Justice may assign a judge(s) to conduct the Judicial Review List as determined in the Annual Circuit Calendar issued by the Chief Justice.
4. Clerk
The Registrar shall assign a Clerk(s) to manage the Judicial Review List.
5. Directions to be issued at time of grant of leave.
Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following:-
(1) Filing of Notice of Motion and supporting affidavits under Order 16 rule 5 (1).
(2) Identification of all persons directly affected by the decision the subject of the review, who may be served with the Notice of Motion including the Clerk or Registrar of the Court or Tribunal which made the decision.
(3). Service of the order granting leave including directions issued hereunder and Notice of Motion and supporting affidavits and any other documents filed for purposes of the leave application, on persons identified under (2) and filing proof of service.
(4) Availability of decision and reasons for decision together with any other relevant documents or depositions of the tribunal or public authority which made the decision the subject of review.
(5) Fix a date for Directions Hearing to take place within fourteen (14) days there-from. This date shall be entered on the Notice of Directions Hearing issued by the Registrar under Rule 6 (1) here-under.
6. Directions Hearing
(1) The Registrar shall give Notice of the Directions Hearing in the form in Schedule A.
(2) At the Directions Hearing, where parties are represented by a lawyer, the lawyer must be familiar the matter.
(3) A person who is served with the Notice of Motion is entitled to attend the Directions Hearing.
(4) At the Directions Hearing, the Judge may consider and determine and issue directions or orders for the prompt hearing of the application, amongst other things, the following:
a. Question of legal representation.
b. Identification of persons served or who ought to have been served with the Notice of Motion.
c. Joinder of persons served with the Notice of Motion as parties to the proceedings.
d. Filing and service of affidavits by the Respondents
e. The grounds of review.
f. Amendment of grounds of review.
g. Identification of legal issues.
h. Statement of agreed and disputed facts.
i. Identification of factual issues and manner of proof of disputed facts.
j. Provision of records including decision and reasons for decision by the Clerk or Registrar of the Court or Tribunal or statutory authority which made the decision.
k. Issue of notices for discovery, notice to admit facts, exchange of interrogatories, notices under Evidence Act, etc.
l. Issue of witnesses summonses.
m. Filing of extract of submissions.
n. Compilation of a Review Book.
o. Fix a date for the Pre- hearing Conference to take place within seven (7) days there-from
7. Review Book
(1) The Applicant or his/her lawyer is responsible for compiling the Review Book.
(2) The Respondent or his/her lawyer is responsible for ensuring that the decision the subject of the review and other documents considered relevant for purpose of the review are included in the Review Book.
(3) The Clerk, Registrar or the officer responsible for keeping the records of the tribunal or public authority which made the decision shall certify the documents referred to.
The certification shall be as follows:
"I............. , Clerk/Registrar of the........................ , hereby certify that I have examined these documents with the original and certify that they are true copies.
Dated this................. day of................ 2005.
........................
Clerk/Registrar."
(4) Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision-making process and the reasons for the decision, the judge may at a directions hearing direct a body or person whose decision is under review to furnish to the applicant within a specified time, a statement in writing setting out the reasons for decision including:
(i) findings on material questions of fact referring to evidence or other material on which those findings were based;
(ii) the body or person’s understanding of the applicable law and the reasoning process leading to the decision; or
(5) Where Rule (4) is not applicable, the judge may make orders for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this Rule, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then be confined to particular issues.
(6)
(a) The Review Book shall contain the following:-
(i) Title page
(ii) Index
(iii) Originating Summons
(iv) Statement in Support filed under Order 16 Rule 3 (a)
(v) Any Amendment to the statement in support.
(vi) Affidavit Verifying Statement in Support filed under Order 16 Rule 3(b)
(vii) Order granting leave
(viii) Notice of Motion filed under Order 16 Rule 5 (1)
(ix) Affidavit of service of Notice of Motion filed under O. 16 R. 5 (5)
(x) Extract of submissions for the Applicant.
(xi) Extract of submissions for the Respondent.
(xii) Certified copy of decision and other relevant documents of the decision-making tribunal or statutory authority.
(xiii) Any other relevant documents filed in the National Court including affidavits, Notice of Motion and orders.
(b) All pages must be numbered.
(c) If both parties are not represented by a lawyer, subject to the Applicant meeting the cost, the Registrar may prepare the Review Book.
(d) A Review Book must be prepared, filed and served on the other party seven (7) days before the date fixed for the Pre-hearing Conference.
8. Pre – Hearing Conference.
(1) At the Pre-hearing Conference, the Judge may confirm compliance with directions issued at the Directions hearing, under Rule 5 and Rule6, and may determine or issue directions, amongst other things:-
a. Confirm correctness of the Review Book.
b. Summarily determine any proceedings which fail to comply with the directions or the requirements of 0rder 16 rule 5 of the National Court Rules.
c. Confirm grounds of review.
d. Confirm legal or factual issues, if any.
e. Filing of extract of submissions.
e. Length of hearing time
f. Fix a date for the hearing.
(2) Upon fixture of a date for the hearing under (1) (f), the Registrar shall prepare and issue to both parties an Appointment for the Hearing.
(3) The judge may adjourn the Pre-hearing as may be necessary for the parties to fully comply with the directions issued at the Directions Hearing or Pre-hearing Conference.
9. Pre Hearing Conference Form
Upon completion of the Pre-Hearing Conference, the judge’s Associate shall record a summary of the details of the pre-hearing conference in the form provided in Schedule "B" and place it in the Court file.
10. Status Conference
A status conference shall be conducted by the judge on the first day of the circuit month to confirm that all relevant directions and orders issued during directions and pre-hearing conference have been complied with and that the matter is ready for hearing.
11. The Hearing
(1) The Hearing shall proceed on the date fixed by the Judge at the Pre-hearing Conference, unless otherwise ordered.
(2) An application shall not be adjourned generally; it must be adjourned to a specific date and time.
(3) The hearing shall be by affidavit evidence only. Cross-examination on the affidavit shall not be allowed except with leave of the Court.
(4) At the hearing, the judge may summarily determine any application which fails to comply with the procedures prescribed under Order 16 of the National Court Rules or directions issued under Rules 5, 6 and 8 hereof.
(5) After the application is heard and determined, the Registrar or Clerk shall forward a copy of the order together with a copy of the written decision to the Clerk or Registrar of the Court, Tribunal or statutory authority which made the decision. If there is no written judgment handed down, a copy of the oral judgment transcribed by the Court Reporting Service, shall be forwarded.
12. Adjournments.
Proceedings in a Directions Hearing, Pre-hearing Conference or Hearing will not be adjourned or stood over generally, even by consent. If parties require time to consider their position or negotiate a settlement, proceedings may, with the judge’s approval, be adjourned to a comparatively lengthy period, but always to a fixed date with (if appropriate) liberty to restore the matter to the Directions Hearing or Pre-hearing Conference within that time.
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
a. 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 Practice Directions or on any other competency grounds.
b. 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.
c. Where the Registrar refers a matter for summary determination, the following procedure shall apply:
- i. A notice letter in the form in Schedule C is issued by the Registrar which gives notice to the Applicant of his intention to refer the matter to the judge for summary determination on the grounds stated in the letter. The letter also gives the Applicant thirty (30) days to respond and fixes a return date and time for the matter to come before the judge. A copy of the same letter is sent to the respondent. In appropriate cases, the notice letter may be published in the media.
ii. If the Registrar receives a response, either in writing or verbal, he shall place on the file the response or note of the verbal response and advise the Applicant to appear in Court on the date and time fixed.
iii. Upon expiry of 30 days, the Registrar shall forward the file to the judge together with any response received.
iv. The judge may determine the application summarily based on the response received or report by the Registrar together with any explanation given by the Applicant and/or the respondent in court.
v. f the parties are unrepresented by a lawyer, the Registrar shall draft and settle the Court Order and forward sealed copies to the parties.
vi. The Registrar shall also forward a sealed copy of the Order together with a copy of the judgment, if any, to the Clerk of the Court or tribunal which made the decision,
vii. The file shall be closed and forwarded to Archives for storage.
14. Dispensation with requirements of these Rules.
The judge may dispense with any requirements of these Rules in an appropriate case.
15. Commencement of these Rules
These Rules shall commence on the date they are signed by the Judges.
SCHEDULE "A"
(Title)
NOTICE FOR DIRECTIONS HEARING
TO THE:
Applicant:
Respondents:
Take note that the substantive application for judicial review is fixed for Directions Hearing before a judge of the National Court at _________________ (Courthouse) at________ a.m / p.m on the_________ day of _________ 20____.. .
You are required to attend at the Directions Hearing. You must be prepared to assist the judge deal with the matters listed below.
At the Directions hearing, the Court will consider and determine or issue directions, amongst others, the following:
a. Question of legal representation.
b. Identification of other persons directly affected by the decision under review and who have been served or ought to have been served with the Notice of Motion.
c. Joinder of persons served or ought to have been served with Notice of Motion as parties to the proceedings.
d. Grounds of review
e. Filing and service of affidavits.
f. Availability of records of the decision and reasons for decision of tribunal or public authority which made the decision.
g. Identification of legal issues.
h. Identification of factual issues if any and manner of proof.
i. Compilation of Review Book.
j. Filing of written submissions.
k. Fix a date for the Pre-hearing Conference to take place within seven (7) days there -from.
Dated this day of 20 .
Issued by:
............................
Registrar
SCHEDULE "B"
PR-HEARING CONFERENCE FORM
(to be completed by Judge’s Associate after Pre-hearing Conference)
Title of Proceedings:
1. Lawyer for the Applicant & Counsel:
2. Lawyer for the Respondent(s) & Counsel:
3. Grounds of review pursued:
4. Issues:
5. Number of affidavits for applicant:
6. Applicant’s witnesses required for cross examination on their affidavits:
7. Number of Respondent’s affidavits:
8. Respondent’s witnesses required for cross examination on their affidavits:
10.Witnesses summonsed:
11. Review Book filed:
12. Duration of hearing:
13. Date & time of Hearing:
Dated this ..............day of ....., 20 ............
..................................................
(Judge’s Associate’s name & signature )
SCHEDULE "C"
(Notice letter for Summary Determination of Application for Judicial Review)
Date:
To: Messrs:______________
(Name of Applicant or Lawyer & address.
Copy to: ____________________
(Name of Respondent or Lawyer & address)
Title of proceedings:
RE: NOTICE TO SHOW CAUSE WHY YOUR APPLICATION FOR JUDICIAL REVIEW SHOULD NOT BE SUMMARILY DISMISSED.
I refer to the above matter and advise that this matter is listed for summary determination before the National Court at _______________(Courthouse) at ________a.m/p.m. on the ____________day of ______________ 20_____.
The grounds or reasons are:
1._______________
2._________________
3.__________________
You are required to attend Court on the date and time fixed above to show cause why your application should not be summarily dismissed for the reason(s) stated above.
If you wish to give an explanation before appearing in Court, you may do so by letter addressed to the Registrar within 30 days from the date of this letter.
Yours Sincerely,
............................
Registrar
___________________________________________
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