PNG Law Reports 1993
[1993] PNGLR 22
SC447
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
ILA GENO, PAUL LAWTON AND PLORIEN MAMBU
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani
Kapi DCJ Woods Jalina JJ
27 July 1993
29 July 1993
APPEAL - Judicial review - Application for leave - Discretion - National Court Rules O 16 r 3.
CONSTITUTIONAL LAW - Role of judicial process.
Facts
The Head of State, acting in accordance with the advice of the National Executive Council, made certain acting and substantive appointments of secretaries of government departments. These appointments were made without consultation with the Public Services Commission, as is required by the Constitution s 193(3). The commissioners purported to challenge the appointments by judicial review under Order 16 of the National Court Rules. They sought leave of the Court to make the application. The trial judge refused leave and they appealed against that decision to the Supreme Court.
Held
1.       Matters relevant to exercise of discretion on application for leave for judicial review include the question of whether there is an arguable case; NTN v Board of the Post and Telecommunication Corporation [1987] PNGLR 70 applied.
2.       Where the basis of application for leave for judicial review is conceded, leave should be granted.
3.       Substantive issues raised are matters properly to be considered at the substantive hearing; Ombudsman Commission v Donohoe [1985] PNGLR 348 applied.
Cases Cited
Papua New Guinea cases cited
Manjin v Post and Telecommunication Corp [1990] PNGLR 288.
NTN v Board of the Post and Telecommunication Corp [1987] PNGLR 70.
Olasco Niugini Pty Ltd v Kaputin [1986] PNGLR 244.
Ombudsman Commission v Donohoe [1985] PNGLR 348.
Valentine v Somare [1988-89] PNGLR 51.
Other cases cited
Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1982] AC 617.
R v Inland Revenue Commissioners [1981] 2 WLR 722.
Counsel
C Hudson, with E Andrew, for the appellants.
P Ame, for the respondent.
29 July 1993
KAPI DCJ WOODS JALINA JJ:  The appellants are members of the Public Services Commission (hereafter, the Commission), which is established under s 190 of the Constitution. Apart from other duties and functions, the Commission is entitled to be consulted on appointments of heads of departments under s 193(3) of the Constitution.
The Head of State, acting in accordance with the advice of the National Executive Council, appointed the following persons:
(a)      Mr Bill Kua as Acting Secretary of Department of Religion, Youth, and Home Affairs on 15 October 1992;
(b)      Mr Joseph Gabut as Secretary of Department of Fisheries & Marine Resources on 23 December 1992;
(c)      Mr Zurenuouc as Acting Secretary of Department of Transport on 23 December 1992.
The appellants purported to challenge these appointments as invalid and of no effect by way of judicial review under O 16 of the National Court Rules on the basis that the Commission was not consulted in accordance with s 193(3) of the Constitution.
No application for judicial review may be made without first seeking leave of the Court. The appellants made application for leave of Court in accordance with O 16 r 3 of the Rules. This matter came up for hearing before Mr Justice Amet, and he refused leave for judicial review. The appellants have appealed against this decision.
The principles applicable to an application for leave are now well settled. In NTN v Board of the Post and Telecommunications Corp [1987] PNGLR 70 at 74, Wilson J said:
"Applications for leave for judicial review involve the exercise of discretion. Such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest (O 16, r 3(5)) it then exercises its discretion as to whether leave should be granted. This discretion is embodied in O 16, r 3(1).
In exercising it's discretion the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, Lord Diplock set out the principles upon which the Court should act and I respectfully adopt them. Lord Diplock said (at 644):
'If, on a quick perusal of the material then available, the court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.'"
See also Manjin v Post and Telecommunication Corp [1990] PNGLR 288 at 289.
The purpose for seeking leave is well explained by Lord Diplock in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739:
"Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."
Lord Scarman said at 749:
"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the court to prevent abuse by busybodies, cranks, and other mischief-makers."
These passages were approved in Olasco Niugini v Kaputin [1986] PNGLR 244 at 245.
In the current matter, the respondent was represented at the hearing and conceded the basis of the application for leave for judicial review. The trial judge in his judgment said:
"The defendant has responded that it does not deny that the plaintiffs have sufficient interest in the application for judicial review, nor does it deny that the plaintiffs have an arguable case. The defendant has, indeed, admitted that the plaintiffs were not in fact consulted."
We are clearly of the view that once the respondent conceded the above matters, the trial judge should have exercised his discretion in favour of granting leave for judicial review.
The trial judge refused leave on other grounds. We now proceed to consider these grounds. The trial judge said:
"The defendant has, whilst conceding that the plaintiffs have sufficient interest and an arguable case, posed what, in my opinion, is a fundamental policy issue as to whether or not it is appropriate to grant leave in an application such as this, involving as it does a service of the defendant. Is it appropriate that a service of the defendant should be granted leave to challenge an administrative decision of the defendant which might have little practical benefit which dispute could not be resolved administratively? Is it going to serve any practical purpose to pursue this application, or might it cause unnecessary administrative inconvenience which could adequately be addressed administratively? What is to be the balance of convenience at the end of the day, even though, as the defendant conceded, the defendant failed to consult the plaintiffs? What is to be the practical efficacy of granting the declarations sought?"
We are of the opinion that the issues raised by the trial judge in the above passage are matters to be considered at the substantial application for judicial review. Similar arguments were made in the case of Ombudsman Commission v Donohoe [1985] PNGLR 348. At 361, Amet J, writing the leading judgment, said:
"The Commission had submitted that the learned judge had erred in law, that even assuming for the purposes of argument that the facts were as asserted by Mr Donohoe, at their highest, the substantive application could not be sustained under O 16, r 1(2) of the Rules. The National Court would have no jurisdiction to entertain the application at the very outset.
Notwithstanding the evidentiary assumption conceded by the Commission, these are substantive legal arguments which required careful examination of the legal application of the provisions of the Rules and the Constitution upon the facts on the substantive application. On an application for leave to file an application for judicial review, the Court need only be satisfied as to the requirements of O 16, rr 2, 3 and 5. The application, of course, is ex parte and so the Court does not have any other material contesting the application. The Court is not required to address the matters specified in O 16, r 1(2). These are matters for consideration by the Court hearing the substantive application. I consider that the substantive issues raised are matters properly to be considered by the Court hearing the substantive application, depending on its conclusion of facts upon an assessment of all the evidence and the benefit of legal arguments."
See also Valentine v Somare [1988-89] PNGLR 51 at 52.
In the light of these authorities, we are of the opinion that the trial judge erred in refusing to grant leave on the basis of the issues posed in the above passage.
We are also of the opinion that the trial judge erred in law when he stated in the same passage that it was a matter of fundamental policy issue as to whether the appellants should be granted leave as a service of the defendant. With respect, it is not a question of policy. The issue is whether there is a cause of action in law and whether the appellants have any sufficient interest in the matter. These issues, as we have pointed out before, were conceded by the respondent.
The trial judge further stated:
"I hold the view that, as matter of practical politics and administrative efficiency, effectiveness, and convenience, inter-governmental agencies, departments or services should be discouraged from resorting to litigation to resolve what can, in most instances, be amicably and more effectively resolved to total benefit of the State. What this requires, in my view, is a greater effort at establishing and developing constructive and meaningful dialogue and consultation instead of the adversarial litigious position so readily resorted to.
I consider it most inappropriate that departments or agencies of the State services should have to resort to litigation to resolve administrative differences of opinion which could be amicably resolved to the satisfaction of all parties with a little more dialogue and consultation. Extreme legal positions need not be taken if, by some practical concessions, a practical resolution of the difference or dispute is arrived at for the mutual benefit of both parties concerned. 
Even more inappropriate, in my view, is that a State service, department, agency, or institution should have to resort to litigation against the parent State, such as in this case. If the error or irregularity can be identified, acknowledged, and rectified without the need to resort to litigation, then that alternate dispute resolution process should be encouraged and litigation discouraged."
In essence, what the trial judge was saying was that the parties should settle this matter out of court. Indeed, every attempt should be made by all parties to settle their disputes before resorting to litigation. If this is not encouraged, our judicial system would be unable to handle the amount of litigation. But that is as far as this point can go. It works where the parties are willing to negotiate. In this case, the respondent conceded that it did not comply with s 193(3) of the Constitution. It is for the respondent to offer to comply with this provision and cure any defects that may have arisen out of the non-compliance. For example, it might have offered to revoke the appointments and rectify any action they may have taken while in office. However, there is no record of any indication by the respondent in the court below to settle this matter in any way at all. In absence of any willingness to negotiate by the parties, the court has a constitutional duty to determine the application in accordance with the law. The desirability of the court to settle a matter out of court without the willingness of the parties is no valid ground for refusing to exercise discretion in favour of granting leave for judicial review. The trial judge fell into error in this regard.
We should also point out that the issue in this case is not simply one of an administrative matter. The issue is one of non-compliance with s 193(3) of the Constitution and the consequences that flow from such non-compliance. 
The appeal is allowed and we grant leave for the appellants to apply for judicial review under O 16 of the National Court Rules. We further order that the respondent pays the appellants' cost of this appeal.
Lawyers for the appellant: Gadens Ridgeway.
Lawyers for the respondent: Solicitor General.