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Hayabe v Powi [2007] PGNC 5; N3113 (27 March 2007)

N3113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 46 OF 2007

BETWEEN:

ALPHONSE HAYABE
Plaintiff

AND:

WILLIAM POWI, ACTING PROVINCIAL ADMINISTRATOR OF SOUTHERN HIGHLANDS PROVINCE
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn, J.
2007: 16 & 27 March

JUDICIAL REVIEW – Decision of second Defendant to appoint first Defendant as Acting Provincial Administrator - Plaintiff contends he is Acting Provincial Administrator by virtue of Gazettal Notice - application for leave for judicial review involves the exercise of discretion – whether any useful purpose will be served if relieve sought is granted - no useful purpose would be served if the proposed judicial review sought by the Plaintiff were successful - leave for judicial review refused

Cases Cited
Hitolo v Geno, Chief Ombudsman, N2700
Ombudsman Commission v Dennis Donohe [1985] PNGLR 348
Ombudsman Commission v Peter Yama, SC747
Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd, SC488

Books
Halsbury’s Laws of England, 4th ed, Vol 1(1), par.117

Counsel
M. Muga, for the Plaintiff
J. Chillion, for the First & Second Defendants

27 March, 2007

1. HARTSHORN J: The Plaintiff seeks leave to proceed with an application for Judicial Review of:

"......the decision of the Second Defendant to appoint the First Defendant as Acting Provincial Administrator of Southern Highlands Province, gazetted in the National Gazette on 23rd May 2006".

2. The Plaintiff contends that he is the Acting Provincial Administrator for the Southern Highlands Province by virtue of a Gazettal Notice dated 13 September 2006, published in National Gazette G178 dated 13 September 2006. That same gazettal notice contained the revocation of the First Defendant as Acting Provincial Administrator for Southern Highlands Province in addition to the appointment of the Plaintiff as the Acting Administrator of the Southern Highlands Province on and from 5th September 2006 until further notice.

3. The first question that is apparent is, if the Plaintiff has replaced the First Defendant as the Acting Provincial Administrator for the Southern Highlands Province why is the Plaintiff seeking to apply to judicially review a decision that was made some 3½ months earlier and wwas subs subsequently revoked?

4. An application for leave for judicial review involves the exercise of discretion. This discretion must be exercised judicially. The court should tisfied that the applicant cant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

A further matter that the courts should take into account in exercising its discretion is whether any useful purpose will be served if the relief sought is granted.

5. In Halsbury’s Laws of England 4th Edition vol. 1(1) par. 117:

"Another relevant consideration in deciding whether or not to grant certiorari or prohibition is the effect of doing so. If the remedy is unnecessary or futile an order will not be made. Thus, where grounds are made out upon which the court might grant the order, it will not do so when no benefit could arise in granting it".

This principle has been referred to in decisions of this jurisdiction:

• In Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348 Amet, J. (as he then was) appears to acknowledge that there should not be an exercise of the discretion to grant leave if the relief sought served no utility or no practical purpose or if the relief did not determine the immediate rights of the Plaintiff.
  

In Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (SC488), a case not involving judicial review, one of the prerequisites for declaratory orders was stated as being that, "The issue must not be of merely academic interest, hypothetical or one whose resolution would be of no practical effect".

6. Here, if the Plaintiff is successful in obtaining a review of the decision appointing the First Defendant as Acting Administrator, the Plaintiff does not gain anything that he does not have now, as the decision appointing the First Defendant has been superseded by the decision revoking the appointment of the First Defendant and appointing the Plaintiff.
   
7. The Plaintiff’s proposed application for judicial review is misconceived as were the applications of the plaintiffs in Hitolo v. Geno, Chief Ombudsman N2700 and Ombudsman Commission v. Peter Yama SC 747, that is, the decision he seeks to review has been superseded by another decision.
   
8. The Plaintiff in his supporting Statement and Affidavit refers to another Gazettal Notice dated 25 September 2006 entitled "PUBLIC INFORMATION". The status or otherwise of that Gazettal Notice or its content are not the subject of proposed relief in the documentation filed and would not be affected if the Plaintiff was successful in judicially reviewing the decision to appoint the First Defendant Acting Administrator.
   
9. I find that no useful purpose would be served if the proposed judicial review sought by the Plaintiff were successful. Given this finding, it is not necessary for me to consider the other principles that are relevant on an application for leave for judicial review.
   

ORDERS

10. For these reasons I refuse to grant leave.

I order costs to the Defendants.

Young & Williams: Lawyer for the Plaintiff
Solicitor General: Lawyer for the First and Second Defendants