Sevua: Judges, lawyers abuse review rules

JUDGES and litigating lawyers are “abusing” a particular section of the Judicial Review (Amendment) rules 2005 by (judges) not making decisions that reflect that section of the rules, a National Court judge said.
“Rule 5 of the Judicial Review rule 2005 clearly provides that directions are to be issued at the same time the leave is granted,” Justice Mark Sevua said while handing down his decision on a notice of motion filed by an applicant Canopus No. 16 Ltd.
The company was seeking an order that the court proceedings in OS 760 of last year, between the PNG Sustainable Forestry Ltd, the plaintiff and five defendants, be dismissed for want of prosecution.
“Applications for leave for judicial review are subject to Order 16 of the National Court Rules and the Judicial Review  rules 2005,” Sevua said, while granting the fifth defendant’s (Canopus No. 16 Ltd) application, last Friday.
He said the requirements in the rules did not exist for “mere window dressing” but for litigants and their lawyers to comply with.
“The rule reads: ‘Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst things the following,” Sevua stated in a courtroom which was almost empty except for the two lawyers.
“Then the enumerated sub-rules one to respectively are the matters the judge shall consider and issue relevant directions.”
Sevua went on to say that the word “shall” was mandatory; which meant, the judge must issue directions at the same time he granted leave. The rule did not provide for an adjournment to issue directions at a later date.
He added: “Apparently, in my opinion, this rule is being continuously abused by judges who grant leave, including lawyers who appear in cases where applications for leave are being heard.
“In my view, both the judge who granted leave in this case, and the plaintiff’s lawyer, who appears in the leave application, fail to comply with this rule. The judge fails to issue directions soon after he has granted leave and the lawyer for the plaintiff fails to submit to the judge that directions should be issued.
 “Even then, the plaintiff and its lawyers, sat on both the leave and the interim injunction without taking any reasonable and responsible steps to either list the matter for directions, or have the interim injunction returned for inter-parte hearing.
“The court does not need to repeat and the defendants, whose rights were affected or curtailed by the interim injunction, were entitled to a fair hearing.
“That is, they have the right to come to court and be heard on whether the interim injunction order should continue, or be dissolved.”
In saying this, Sevua ordered that the 5th defendant’s application be granted, and subsequently, the court ordered that the interim injunction be dissolved, and the proceedings dismissed for want of prosecution.