national court of justice

re: application for judicial review pursuant to s.155(4) of the constitution

waigani: sawong j

14-17 December 2004

ADMINISTRATIVE LAW – Application for Leave for judicial review – Discretion – Grounds for exercise of – National Court Rules, O.16 rr. 2, 3, 4.

LAND – National Land Registration Act – Settlement Payment- Payment from State fund - Locus standi of State to seek review of the order of the Commission.

Facts

The State sought leave of the court to review the decision of the National Land Commission which awarded the sum of K7 million to the third defendant as settlement payment for land in Mt Hagen Township. In conjunction with the leave application the applicant sought interim orders against the Secretary of Finance to prevent him from making the payment.

The plaintiff argued that settlement payment under the Act is paid from public funds, therefore the State has standing to seek review of the validity of an award made by the Commission.

Held

1.	In the present case, I am satisfied on the evidence that the State has sufficient interest and has an arguable case. The issues raise serious legal issues of the powers of the Commissioner to make the awards that he did. The arguments that have been raised demonstrate that the Commissioner may not have complied with the statutory requirements of the law. These are serious issues and in my view, they amount to arguable legal issues.

2.	In explaining the delay in pursuing this matter, the evidence from the State's principal witness shows that the State was not aware of the proceedings. It appears that the Commissioner acted ex parte and made rulings ex parte i.e. without notifying the State and giving the State an opportunity to be heard on the matter. They were not even aware of the orders of the Commission until later.

3.	Under the provisions of the National Land Registration Act there are no provisions for appeals or reviews. In fact the Act is silent on whether the Commission could or an application could be made to the Commission to set aside, vary or alter a decision once the Commissioner has made the decision. It seems quite clear to me therefore that there are no other avenues open to the applicant but to come to this court to review the decision of one of its own instrumentalities.

4.	I am satisfied therefore that the applicant has discharged the onus required of it by law. Consequently, for those reasons I would in the exercise of my discretion grant leave to the applicant.

5.	On the evidence before me I am satisfied that the matters raise serious questions to be determined. Further, I am satisfied on the evidence that the balance of convenience favours the grant of interim injunctions in order to preserve the status quo. Moreover, I note that the applicant has filed an undertaking as to damages.

Papua New Guinea cases cited
Arowe Logging Pty Limited v Thomas Korikio & 30 Ors The Independent State of Papua New Guinea & The Minister for Forest [1988-89] PNGLR 216.
Diro v Ombudsman Commission [1991] PNGLR 153.
Employers Federation of Papua New Guinea v PNG Waterside Workers & Seamens' Union & Ors (1982) N393.
Isidore Kaseng & Ors v Fly River Provincial Government, The State & Ors [2004] PNGLR 557.
Manjin v PTC [1990] PNGLR 288.
Mauga Logging Co. Pty Limited v South Pacific Oil Palm Pty Limited (No.1) [1977] PNGLR 80.
NTN Pty Limited v The Board & Telecommunication Corporation & Media Nuigini Pty Limited [1987] PNGLR 70.
Public Employees Association of PNG v Napoleon Liosi & Public Services Commission [1988-89] PNGLR 585.
Re Sabo Sabo for Nagi Clan [1995] PNGLR 13.
Robinson v National Airlines Commission [1983] PNGLR 476.

Other case cited
Internal Revenue Commissioner v Employers Federation of Self Employed & Small Business Limited [1982] AC 617.

Counsel
J. Nalawaku, for the applicant.
Respondent, in person.

17 December 2004

SAWONG, J. This ruling covers the applications for leave for judicial review in OS 620 of 2004, OS 646 of 2004, OS 652 of 2004, OS 651 of 2004 and OS 714 of 2004. These were applications for leave for judicial review pursuant to O.16, r.3 (3) of the National Court Rules and were made pursuant to the Notice of Motion filed on 9 November 2004 and for interim interlocutory injunctive orders.

Background
1. OS 620 of 2004

Here the applicant applies for leave to this court to review the decision of the National Land Commission (the Commission) made on 3 August 2001 where the said Commission awarded the sum of K7 million to the third respondent, (John Yamai), as land settlement payment for the land described as Unregistered Administration Land (UAL) 2 which forms part of Mt Hagen township in the Western Highlands Province. In conjunction with the leave application, the applicant also seeks interim restraining orders against the Secretary for Finance to prevent the payment of any money to the third respondent pursuant to the orders made by the Commissioner.

The facts of the case are not complicated. They come from the evidence contained in the affidavit of Mr Luke Kawago the acting Deputy Commissioner, National Lands Commission, sworn on 20 October 2004 and filed on 9 November 2004, the affidavit of the Attorney General, Mr Francis Damem dated 1 November 2004 and filed on 9 November 2004, and the affidavit of Mr Jack Nalavaku dated 22 October 2004 and filed on 9 November 2004. From the evidence the following facts emerge.

•	On 27 March 1980, the Minister for Lands in National Gazette No. G28 declared various lands comprising 434 hectares including UAL 2 as National Land. The third respondent then lodged his application for settlement payment pursuant to s 39 of the National Land Registration Act on 6 November 1980.

•	On 9 September 1983, the National Land Commission made an award for K3,175.00. He further recommended that it be increased by 50% to K4,762.50.

The third respondent was not satisfied with this award so he requested the amount to be increased.

•	On 3 August 2001 the National Land Commission made another order increasing the award to K7 million.

2. OS 646 of 2004

The facts in relation to this matter in summary are as follows. The subject land for the application is Portion 35, Mt Hagen Township.

On 29 September 2000, the then National Land Commissioner purported to make an order for settlement payment by awarding the sum of K950,000.00 as compensation to Robert Wayne. The order purports to state that Portion 35 had been purportedly declared a National Land in National Gazette No. G28 of 27 March 1980. A review of National Gazette No. G28 of 27 March 1980, reveals that Portion 35 had never been declared a National Land. As it had never been declared a National Land, questions arise as to the validity of the order for payment that was made.

The evidence in respect of this particular matter is from the affidavit evidence of Luke Kawago, Francis Damem and Jack Nalavaku. It is from that evidence that I have stated the brief facts that I have referred earlier.

3. OS 652 of 2004 
The application for leave in relation to this matter concerns land described as Portion 682 and 88 Milinch Minj Fourmil Ramu otherwise known as "Kudjip" Township. The brief facts for the purpose of leave application are that the Minister for Lands by a notice in the National Gazette No. G39 of 22 May 1997, declared certain portions of land which comprised 1,449.809 hectres as National Land. The Portions were 65, 73, 74, 77, 88, 148, 158, 161, 245, 257, 272, 295, 355, 356, 410, 411, 534, 535, 546, 554, 651, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662 and 740, Milinch Minj Fourmil Ramu, in the Western Highlands Province. Thereafter, between 24 August 1994 and 7 April 2000, various different persons lodged claims for settlement payment claiming either all of the lands declared or, certain portions only. On 3 March 1998, the Commission made award for settlement payment awarding K37,778.90 with a further recommendation that, that award be increased by 50% to various claimants. One of the claimants was William Ekip Wi. On 7 March 2000, the then Commissioner issued another order in the following term "fresh order superceding previous order dated 23 March 1998" and awarding K4,850,250.00 in favour of William Ekip Wi. This order was to be paid by 3 persons in different percentages namely, the State to pay 80%, WR Carpenters (PNG) Ltd to pay 10% and Waghi Mek Limited to pay 10%.

On 7 April 2000, a John Mong as spokesman and Land Owner of Kudjip Township land Portions 682 and 88, Milinch Minj, lodged his claim for settlement payment over Portion 88. On 16 October 2000, the Commissioner made a settlement award order in favour of the John Mong for K500,000.00 for the land identified as Portions 88 and 682. WR Carpenters (PNG) Ltd not being happy with the decision filed a judicial review application in the National Court in Mt Hagen on 30 December 2000. On 2 October 2001, they successfully obtained orders forcing orders of the National Land Commission dated 7 March 2000. The Court further ordered the claim be referred back to the Commission for rehearing which is the position today.

Only Portion 88 together with other portions of the land were declared "National Land" in Gazettal Notice No. G39 of 22 May 1997. Portion 682 was never declared National Land and is not one of the land listed in the Gazette of Notice.

John Mong lodged his claim for settlement payment on 7 April, 2000 which is about 2 years and 11 months after the date of declaration.

The evidence of those facts are deposed to and contained in the affidavits of Luke Kawago, Francis Damem and Jack Nalavaku.

4. OS 651 of 2004
The facts are similar to the facts in OS 652 of 2004. The only difference is that a different person has made a claim. In this case Michael Pa, the third respondent, had made a claim for portions 410 and 411, Kudjip Township on 10 February 2000. As a result of that claim, the then Commissioner ordered settlement payment of K950,000.00 to be paid to Michael Pa as spokesman land owner for Sikange and Kuma tribes.

The ground of which the applicant seeks to review the decision of the National Land Commissioner was that his decision was improper, unlawful and illegal as it was in breach of several pertinent provisions of the National Land Registration Act. These include late lodgment of claims. In other words, failure to lodge settlement of payment claim within the time limit prescribed by s 69 of the said Act, conflicting claims by different persons over the same land, making double order awards for the same portions of land amongst the same claimants, excessive award of compensation. In other words, the order for compensation was not in accordance with the formula set out in the relevant statute. The evidence of these facts comes from the evidence of Luke Kawago, Mr Francis Damem and Jack Nalavaku.

5.	OS 714 of 2004.
Again in this case the evidence giving rise to the facts of this particular claim comes from the evidence of Mr Luke Kawago, Mr Francis Damem and Mr Jack Nalavaku. In summary the facts are that the application relates to land described as sections 333, 47, 65, 64 and 94 being part of Mt. Hagen Township. An order for settlement payment was made by the then Commissioner on 29 September, 2000 on the basis that these pieces of land had been declared as National Land in Gazette No. G28 of 27 March 1980. Proceeding on that basis the then Land Commissioner ordered that the sum of K950,000.00 be paid to Mr Robert Wayne as Spokesman/landowner. A review of National Gazette No. G28 of 27 March 1980, in so far as the declarations of land as National Land is concerned, show that a declaration was made in respect of some land other than sections 33, 47, 65, 64 and 94. In other words, the evidence is that, these pieces of land were never declared as National Land.

Further the claim for settlement payment was made on the 25 July 2000, some 20 years and 4 months from the date of publication of Gazettal Notice, G28 of 27 March 1980.

Here the argument raised is that the award that was made was ultra vires the powers of the Land Commissioner and in breach of the statutory provisions of the Land Registration Act. In particular, it is alleged that the Commission breached s.39 and s.45 of the Lands Registration Act.

The Law
The court's discretionary power to grant or refuse leave involves the exercise of the court's discretion. In an application for leave for judicial review the court is concerned only with filtering out applications which are clearly without merit. In other words, at this stage, the court is considering and acting as a filtering process in exercising the court's discretion.

Order 16 has been judicially considered in so many cases in this jurisdiction and it is therefore settled law now that at this stage the applicant must satisfy the court of four relevant matters in the exercise of the court's discretion in determining application for leave to apply for judicial review. The four legal principles are these:-

1.	Whether the applicant has locus standi i.e. whether the applicant has sufficient interest in the matter to bring the application.

2.	Whether the application is brought within the reasonable time. This involves the question whether the application is made without undue delay.

3.	Whether there is an arguable case.

4.	Whether the applicant has exhausted all administrative remedies.

Mr Nalavaku submitted that the applicant is seeking this court's direction for leave to review the various orders made by the Land Commissioner and awarding various amounts in respect of the different pieces of land the subject of the proceedings. He submitted that under s.44 (4) of the National Lands Registration Act, any land settlement payment order made by the National Land Commission is required to be settled by the Minister for Lands on behalf of the State, out of monies lawfully available for the purpose. He submitted that in the present case the State is directly or would be directly affected by the decision of the National Land Commission because it will pay the money that will be used to settle the order of the Commission. In other words, money will come from the State to settle the order of the National Land Commission. These monies are clearly public funds, which the State holds, manages and spends on behalf of the people of Papua New Guinea. The applicant therefore has to protect these funds from being paid unfairly to claimants. As stated in the affidavit of Luke Kawago, the State cannot just allow the funds as ordered to be paid out when in fact the third respondent is only entitled to less than the amounts as calculated under Schedule 2 of the National Land Registration Act. The State therefore must protect these funds. He relied on the authorities of NTN Pty Limited v The Board & Telecommunication Corporation & Media Nuigini Pty Limited [1987] PNGLR p. 70, Arowe Logging Pty Limited v Thomas Korikio & 30 Ors & the Independent State of Papua New Guinea & The Minister for Forests [1988-89] PNGLR 216. He submitted that the evidence clearly demonstrates that the State has standing and the right to bring that application to protect public funds from being unlawfully paid out.

Mr Nalavaku also submitted the State has an arguable case on the merits to warrant grant of leave. He submitted that an arguable case involves the question of whether the application raises any fundamental or serious legal issues to be tried. In the present case, he submitted that there are serious legal issues to be tried if leave is granted. These issues include non-compliance with the procedures and rules of the relevant statute namely, the National Land Registration Act (the Act). In addition, the lodgment for the claim itself by the claimants did not strictly comply with the requirements of the Act. He also submitted that the evidence of Mr Luke Kawago, demonstrate clearly that the National Land Commission did not follow and comply with the statutory requirements under the Act in awarding the several different amounts. In particular he submitted that the Commissioner did not follow the law and did not apply schedule 2 of the Act as required by s 45(1) of the Act. He submitted that the Commission, had acted outside the powers given to him by the Act and in doing so, he acted ultra vires. On this aspect he relied on the cases of NTN Pty Limited v PTC (supra), Internal Revenue Commissioner v Employers Federation of Self Employed & Small Business Limited [1982] AC 617 at 644, Manjin v PTC [1990] PNGLR 288, Diro v Ombudsman Commission[1991] PNGLR 153.

In so far as undue delay is concerned, he conceded that there had been some delay in bringing the applications. However, he submitted that the delay is not such that leave ought to be refused. He submitted that reasonable explanations have been given by Mr Luke Kawago, Mr Francis Damem and Mr Jack Nalavaku to demonstrate that although there has been delay in bringing the application, the applicant has offered reasonable explanations so that the court still has a discretion to grant leave even though there has been delay. On this aspect he relied on the authorities of Nagi Clan, Re [1995] PNGLR 13 and Isidore Kaseng & Ors v Fly River Provincial Government, The State & Ors [2004] PNGLR 557.

In regard to the fourth issue, i.e., whether all administrative remedies have been exhausted, Mr Nalavaku submitted that there are no other administrative remedies available to the applicant to review the orders of the Commission. The only course open is for the applicant to come to this court to seek the review of the decision of the Commission.

Mr Nalavaku further submitted that if leave is granted the court should also grant the interim injunctive relief so as to preserve the funds from being paid out.

Mr Lambu for the National Land Commission supported the application. He submitted that the Commission had perused the applications and orders and it has come to the conclusion that the decisions that were made by the previous Chief Lands Commissioner were made without authority. As I understood, his submission was that the awards that were made were clearly beyond the powers of the Land Commissioner and were ultra vires.

Decision

I consider the various issues together. Applications for leave for judicial review involved the exercise of the court's discretion. Such discretion must be exercised properly and on proper basis. The first issue is whether the applicant has standing to bring this action. Once the court is satisfied that an applicant has sufficient interest or standing, it can then exercise its discretion as to whether to grant or refuse leave. On this aspect, I adopt what His Honour Wilson, J stated in NTN Pty Limited v PTC (supra). The purpose is not to determine the merits of the case but upon a quick perusal of the material and upon hearing submissions from counsel, the court sorts out at this stage trivial or hopeless applications. This is to ensure that an application is only permitted to proceed to a substantive hearing on the merits if the court can be satisfied that there is an arguable case for review.

In the present case I am satisfied on the evidence that the State has sufficient interest and has an arguable case. The issues raise serious legal issues of the powers of the Commissioner to make the awards that he did. The arguments that have been raised demonstrate that the Commissioner may not have complied with the statutory requirements of the law. These are serious issues and in my view, they amount to arguable legal issues.

The only matter of concern is the delay in bringing this application. However, in the absence of any other evidence to rebut the evidence and the explanations that have been offered, I accept the evidence that has been raised. The evidence from the State's principal witnesses shows that the State was not aware of the proceedings. It appears that the Commissioner acted ex parte and made rulings ex parte i.e. without notifying the State and giving the State an opportunity to be heard on the matter. They were not even aware of the orders of the Commission until later. As I alluded, I accept the explanations and whilst I find that there has been a delay, in the exercise of my discretion I accept the explanations that have been offered.

Finally the next issue is whether the applicant has exhausted all remedies available to it. Under the provisions of National Land Registration Act there are not provisions for appeals or reviews. In fact the Act is silent on whether the Commission could, or an application could be made to the Commission to set aside, vary or alter a decision once the Commissioner has made the decision. It seems quite clear to me, therefore, that there are no other avenues open to the applicant but to come to this court to review the decision of one of his own instrumentalities.

I am satisfied therefore that the applicant has discharged the onus required of it by law. Consequently, for those reasons I would in the exercise of my discretion grant leave to the applicant.

The next issue is whether the court should grant in the exercise of this discretion the interim injunctive reliefs sought.

The law on interlocutory injunctions is well settled in this jurisdiction. I refer to some of the leading cases in this jurisdiction such as Mauga Logging Co. Pty. Limited v South Pacific Oil Palm Pty Ltd (No.1) [1977] PNGLR 80, Employers Federation of Papua New Guinea v PNG Waterside Workers & Seamen's Union & Ors (1982) N393, Public Employees Association of PNG v Napoleon Liosi & Public Services Commission [1988-89] PNGLR 585, Robinson v National Airlines Commission [1983] PNGLR 476.

On the evidence before me I am satisfied that the matters raise serious questions to be determined. Further, I am satisfied on the evidence that the balance of convenience favours the grant of interim injunctions in order to preserve the status quo. Moreover, I note that the applicant has filed undertaking as to damages. The monies have yet to be paid and if they are paid, there is a real likelihood that if the present applications are successful, the State may not be able to recover the monies from the claimants. In the circumstances, I would also grant the injunctions sought.

Lawyer for the applicant: Paraka Lawyers.
The respondents: In Person.