Most judicial review in Papua New Guinea is directed at the State or its officers. The Claims By and Against the State Act 1996 modifies the ordinary procedure in several ways.
Section 8 — the State must be heard
Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.
Order 16 Rule 3(2) of the National Court Rules 1983 requires an application for leave to be made by originating summons ex parte. Section 8 provides that, where the State is a defendant, leave shall not be granted unless the State has been afforded an opportunity to be heard.
The opening words — “Notwithstanding anything in any other law” — put the matter beyond argument. The Act prevails over the Rules. A rule of court cannot dispense with a statutory precondition; Order 1 Rule 7 reaches only the requirements of these Rules.
Note what section 8 requires: that the State be afforded an opportunity to be heard. It does not require the State to take that opportunity. But the opportunity must be real, and the applicant should be able to demonstrate it was given.
Order 16 Rule 3(3) already requires notice to the Secretary for Justice not later than two days before the application is made, with copies of the statement and every affidavit in support.
That notice is the practical mechanism by which the State learns of the application. But section 8 goes further: it is not enough to give notice; the State must have been afforded an opportunity to be heard before leave is granted.
Section 9 — 60 days
Notwithstanding anything in any other law, in any proceedings for a claim against the State, the time within which the State shall be required to file a defence or appear shall be — in a claim commenced by writ in the National Court —
(i) where the statement of claim is endorsed on the writ — before the expiry of 60 days after the date of expiry of the time limited for it to give notice of intention to defend; or
(ii) where the statement of claim is not endorsed on the writ — before the expiry of 60 days from the date of service of the statement of claim.
Order 16 Rule 8(3)
Order 16 Rule 8, which allows any interlocutory application to be made to any Judge, is expressed to be without prejudice to any statutory provision or rule of law restricting the making of an order against the State.
Rule 8(3) preserves whatever restrictions exist. So an applicant seeking a stay or interim relief binding the State should expect the point to be raised, and should identify the source of the Court’s power to make the order sought.
Note also section 13 of the Act: there is no execution against the State. Satisfaction of a judgment follows a statutory certificate process instead — see how a judgment against the State is paid and execution against the State.
Where damages are claimed
Section 5(1) — no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given to the Departmental Head of the Department responsible for justice matters, or the Solicitor-General.
Section 2(2) — the provisions of the Act apply to applications for the enforcement against the State of a right or freedom under Constitution section 57 and for damages for infringement of a right or freedom under section 58.
Under Order 16 Rule 7, damages may be awarded on judicial review only where claimed in the statement at the leave stage and where they could have been awarded in an action begun at the time of the application.
That second condition matters here. If a damages action against the State would have been barred for want of a section 5 notice, damages cannot be awarded on the review either.
So where a judicial review may lead to a damages claim, give the section 5 notice within six months — it costs nothing and preserves the position.
Practical points
| Step | Ordinary position | Where the State is a party |
|---|---|---|
| Leave | Ex parte originating summons — O 16 r 3(2) | Not granted unless the State has been afforded an opportunity to be heard — s 8 |
| Notice before leave | Two days to the Secretary for Justice — O 16 r 3(3) | Same, and it is the practical means of affording the opportunity |
| Time to file a defence | 14 days — O 8 r 4 | 60 days — s 9 |
| Service of process | Personal service — O 6 r 2 | Departmental Head or Solicitor-General, within the statutory hours — s 7 |
| Interim relief | As in an action begun by writ — O 16 r 3(8)(b) | Subject to restrictions on orders against the State — O 16 r 8(3) |
| Enforcement | Order 13 | No execution — s 13; certificate process under s 14 |
| Court fees | Payable | No fees payable by the State for filing, issuing or sealing — s 6 |
Judicial review challenges the exercise of a power, so the respondent is ordinarily the decision-maker — the Minister, the Commissioner, the Board — with The Independent State of Papua New Guinea joined where relief is sought against it or damages are claimed.
Remember too that under Order 16 Rule 9(1), any person who desires to be heard in opposition and appears to the Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served. In State matters that often means the beneficiary of the decision under challenge.
Sources
- Claims By and Against the State Act 1996 — ss 2, 5–9, 13, 14
- National Court Rules 1983 — O 1 r 7; O 6 r 2; O 8 r 4; O 13; O 16 rr 3, 7–9
- Constitution — ss 57, 58, 155
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.