Court allows review bid by Somare to proceed

A JUDICIAL review mounted by Public Enterprises Minister Arthur Somare will proceed, The National reports.

The National Court last Friday dismissed an application by the Ombudsman Commission (OC) to dismiss it for want of prosecution.

However, the watchdog itself came under criticism for taking 14 months to file the motion.

Justice Nicholas Kirriwom, while dismissing the application, said: “I am not going to dismiss (Somare’s judicial review application).

“Based on evidence before the court, it is plain that the matter has reached the stage of trial and I shall direct this matter to go back to the appeals and judicial review track for directions in accordance with the rules,” Kirriwom said.

The OC application last March 2 argued that Somare’s review proceedings had taken too long to be heard. Therefore, it should be dismissed for want of prosecution.

However, Kirriwom ruled: “The power of the court to dismiss an action for want of prosecution should be exercised only when the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part, giving rise to a substantial risk that a fair trial would not be possible or to service prejudice to the defendant.”

But, in this case, he pointed out that Somare’s lawyer Kerenga Kua’s affidavit before the court showed that Somare had made a number of attempts to have the proceedings heard and competed.

In light of the referral being made by the OC followed by Somare’s judicial review proceedings on Nov 6, 2006, and the dismissal proceedings last March 2, “there is a period of 14 months unexplained since the motion was filed to the time the motion was moved”.

Kirriwom said: “The issue here is whether there has been an inordinate and inexcusable delay in the prosecution

of the plaintiff’s action.

“Kua (for Somare), contended that there has been no delay; everything necessary to bring the matter to trial was done in compliance with the rules of court which, in themselves, have the effect of prolonging speedy disposition of cases.

“Kua also argued that the OC agreed to most of the adjournments sought as being necessary and, through its counsel, gave the impression that it had no problem with the progress being made on the case.”

However, the OC maintained that “the slow progress of the case was a calculated and deliberate choice (by Somare) to frustrate the prosecution of the judicial review application”.