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Simakade Holdings Ltd v National Forest Board [2018] PGNC 105; N7213 (18 April 2018)

N7213

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 144 OF 2018

BETWEEN:
SIMAKADE HOLDINGS LIMITED
First Plaintiff

AND
NAI-AI KABOKU INCORPORATED LAND GROUP (ILG REG NO. 725)
Second Plaintiff

AND
LOBOT LOTU, HOSEA KUNAM, JOHNA SURUGA, ORIM KOPMAN AND THOMAS TURANA as Customary Landowners of the Dengnenge Resources Area, Open Bay, Lassul, Inland Baining Local Level Government, East New Britain Province
Third Plaintiff

AND
NATIONAL FOREST BOARD
First Defendant

AND
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND
DENGNENGE RESOURCES DEVELOPMENT LIMITED
Third Defendant

AND
KK CONNECTIONS LIMITED
Fourth Defendant

AND
LALOANI NO. 8 LIMITED
Fifth Defendant

Kokopo: Anis J
2018: 3^rd & 18^th April

JUDICIAL REVIEW – Order 16 Rule 3(2) of the National Court Rules - Application for leave to apply for judicial review - discretion - tests for grant of leave application - sufficient interest, arguable case, undue delay and exhaustion of administrative remedies considered - grounds of review - whether grounds sufficiently pleaded - duplicity of proceedings - whether it amounts to abuse of process

Cases cited:
Papua New Guinea cases

Albert Schram v. Phillip Stagg (2012) N4892
Geno & Ors v The Independent State of PNG [1993] PNGLR 22
Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886
James Yoka Ekip v. Patilias Gamato (2017) SC1594
O’Neill v. Eliakim (2016) SC1539
Alois Kingsley Golu v. National Executive Council (2011) N4425
Abaijah v. Mana (2015) N6071
Ex-parte Application by Eric Gurupa (1990) N856
Jerry Lulu v. Pepi Kimas (2007), OS 546 of 2004
Paul Sireh v. Miai Larelake (2007) N3181
Sao Gabi & State v. Kasup Nate and Ors (2006) N4020

Overseas cases

Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Counsel:

Mr N. Saroa, for the First and Second Plaintiffs
Mr F.U. Cherake, for the Third Plaintiff
Ms E.Takoboy, for the First and Second Defendants
Mr T.L. Tape, for the Third, Fourth and Fifth Defendants

RULING

18^th April, 2018

1. ANIS J: This is an application for leave to apply for judicial review. It was heard on 3 April 2018. Also heard on that day was the 3^rd, 4^th and 5^th Defendants' application for leave to intervene and be heard at the leave stage.

2. I heard the application for leave to intervene first. The plaintiffs contested the application. After hearing submissions from the parties, I made a ruling granting leave to the 3^rd, 4^th and 5^th defendants (the 3 defendants) to intervene and be heard on the application for leave to apply for judicial review. My full reasoning is in the transcript of proceeding and I would refer to that.

3. I then heard the plaintiffs' application for leave to apply for judicial review. The application was contested by the 3 Defendants and the State who represented the first and second defendants (the State). I reserved my ruling thereafter to a date to be advised. Parties have been notified that my decision was ready and would be delivered today.

4. This is my ruling.

Decision for review

5. The decision the plaintiffs intend to review is dated 9 May 2016. It is set out in their AMENDED STATEMENT FILED PURSUANT TO ORDER 16 RULE 3(2)(a) OF THE NATIONAL COURT RULES filed on 23 March 2018 (the Statement). It is also reflected in the Forest Clearance Authority No. FCA 15-10 (FCA licence), which is in evidence. It may be summarised as follows:

Pursuant to section 90B(8) of the Forestry Act 1991, and all other powers it enabling, the Board hereby grants a Forest Clearing Authority to Dengnenge Resources Development Limited to carry out a large scale forest clearance for commercial agricultural or other land use development within the 28,500 hectares of land area of the Gazelle District in the Inland Lasul, Baining LLG.

Background

6. The parties are not new to this Court over their dispute, which is presently ongoing. They have several matters that are pending before the National Court that are related or that were filed as a result of the above decision of the first and second defendants. This happens to be the first judicial review application filed by three (3) of the parties namely the plaintiffs.
7. The land area concerned is situated in the Baining LLG, which is part of the Gazelle District in East New Britain Province (the Land). The plaintiffs consist of landowners and their entities. They appear to be landowners of the Land and they want to harvest timber on the Land. They have established themselves including setting up their landowner company and an incorporated land group, namely, the first and second plaintiffs. They have also chosen their own developer to operate on the Land. The three (3) Defendants also consist of landowners from the area where the Land is situated. They also have similar interest to harvest timber but in addition, to engage as well in agro-forest activities on the Land. It seems that there may have been plans in the past between the two (2) factions of landowners to work together. But as it turned out, things may have failed and eventually in 2013, the two (2) factions took different paths to pursue their commercial interests.

8. On 9 May 2016, the first and second defendants granted the FCA licence to the third Defendant. The plaintiffs are aggrieved and they intend to challenge the decision. The plaintiff's' preferred contractor Vanimo Jaya Ltd was also granted three (3) timber permits over the area or the Land where the FCA licence is situated, that is, about a year later on 29 August 2017. As a result, related proceedings were filed namely OS No. 542 of 2017, OS No. 469 of 2017 and OS No. 997 of 2017 (the 3 related proceedings). These proceedings are pending before the National Court.

Issues

9. The issues of course are as follows:

(i) Whether the plaintiffs have sufficient interest in the matter;

(ii) Whether there is an arguable case;

(iii) Whether there was undue delay; and

(iv) Whether the plaintiffs have exhausted all the administrative remedies before coming to this Court.

The Court's role

10. "What is my role in considering an application for leave to apply for judicial review?" I ask myself. The answer may be found in the case law. Let me point to one. Justice Batari, in the case Albert Schram v. Phillip Stagg (2012) N4892 I think explains that well. His Honour said these and I quote:

12. The leave stage of a judicial review application should be confined or restricted to a quick perusal of the materials available to the Court then, without going into the matter in depth. The traditional test for grant of permission has been that the applicant must demonstrate to the court there is an arguable case for granting the relief upon, ‘a quick perusal of the papers’ as Lord Diplock stated in Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 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 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.”

13. This statement of principle adopted by Wilson, J in NTN v Board of the Post and Telecommunications Corporation [1987] PNGLR 70 at 74 was approved by the Supreme Court in Geno & Ors v The Independent State of PNG (supra).

11. Following the adoption of the decision of Lord Diplock in the case of Internal Revenue Commission v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 by the Supreme Court in Geno & Ors v The Independent State of PNG [1993] PNGLR 22, the decision is binding and has been applied over the years.

12. The parties have, in their submissions, covered the various requirements where the Court may or may not exercise its discretion to grant an application for leave to apply for judicial review. These tests are reflected in the issues, namely, (i), sufficient interest, (ii), arguable case, (iii), undue delay and (iv), exhaustion of administrative remedies.

Sufficient interest

13. At the hearing, the 3 defendants contested the test sufficient interest at some length. The State on the other hand conceded that the plaintiffs have sufficient interest.

14. Counsel for the 3 defendants submits as follows. It says that as for the 1^st Plaintiff, its company record does not state or clarify that it is a landowner company that serves the interests of the landowners. Counsel drew the Court's attention to annexure "C" to the affidavit of Peter Maue filed on 14 March 2018. As for the second plaintiff, counsel submits that the said ILG is separate from the three defendants' ILG and that the second plaintiff's interests over its land is also separate from the Land or the area where the FCA licence was issued over. And as for the third plaintiffs, counsel submits that they (i.e., the third plaintiffs) are actually benefiting from the development currently being undertaken by the three (3) Defendants on the Land. The plaintiffs deny these claims. They point to their evidence filed in support of the leave application.

15. I have considered the materials and evidence filed. In this case, I find that the plaintiffs do have sufficient interest. I find prima facie evidence disclosed by the plaintiffs that the first plaintiff was set up by the landowners from the area or the Land where the FCA licence was issued over. As for the second Plaintiff, I find that it also represents persons who may be within the area or the Land who are or may be affected by the granting of the FCA licence to the third Defendant. Now I used the term "may" because this is not a hearing and I note that issues of such nature may be contested at a later stage with detailed evidence disclosed. In regard to the third Plaintiffs, I find that for the three defendants to actually argue that the third Plaintiffs are benefiting under the FCA licence itself proves or indicates that they have interests over the area or the Land. In my view, the said acknowledgment by the three defendants should be sufficient for this Court to find that the third Plaintiffs have sufficient interest in the matter. The third Plaintiffs are joined with the other plaintiffs and this makes all the more reason to find that these plaintiffs have sufficient interest in the matter. I also note that evidence of membership of each clan members of the plaintiffs are also filed herein.

16. The other consideration, which has led me to find sufficient interest in favour of the plaintiffs, is this. Both factions of landowners with their contractors, have been issued with licences under the Forestry Act 1991 by the first and second Defendants. The licences appear to have been issued over the same area or the Land. As stated above in my ruling, as a result of that, various proceedings have been filed by the two factions of landowners, their entities or by their developers. On that basis, the plaintiffs herein obviously have sufficient interest in the decision of the first and second Defendants to grant the FCA licence over to the third defendant on 9 May 2016.

17. I also feel compelled to emphasis a remark that was made by the Supreme Court some 11 years back in 2007, which I think is fundamentally important to the Courts when addressing the issue sufficient interest at leave application hearings. I refer to the case Kenn Norae Mondiai v. Wawoi Guavi Timbers Co. Ltd (2007) SC886. Deputy Chief Justice Sir Mari Kapi (as he then was), Justice Davani and Justice Lay made these remarks at paragraph 79 of their judgment:

79. In this country at our current stage of economic development we do not consider that it is appropriate to narrow the opportunities for interest groups to come to the court to point out what they consider is going wrong, that is unlawful conduct, in government departments and statutory authorities, provided what is complained of is the breach of a public duty by a public authority. There are very few individuals in the groups directly affected by legal actions, particularly concerning customary land, who have the resources to be able to come to the higher courts to get illegal conduct stopped and wrongs righted. In the future we do not rule out the possibility that if the allegations of illegality are sufficiently grave and the evidence of an arguable case sufficiently cogent at the leave stage, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.

18. I note that the Supreme Court recently in James Yoka Ekip v. Patilias Gamato (2017) SC1594 has differed on this remark and on what the Court has held to be considerations for establishing sufficient interest. The Supreme Court in James Ekip ruled on point that in Kenn Modiai, the Court did not have the benefit of considering Order 16 Rule 13(5) of the National Court Rules because it [i.e., Order 16 Rule 13(5)] may not have come into effect as a rule then. The Supreme Court said therefore that the comments made by the Supreme Court in Kenn Mondiai were distinguishable. The Supreme Court in James Ekip therefore held sufficient interest to mean direct interest. The Supreme Court made its findings on sufficient interest based upon Order 16 Rule 13(5) of the National Court Rules. It also referred to supportive case authorities namely, O’Neill v. Eliakim (2016) SC1539; Alois Kingsley Golu v. National Executive Council (2011) N4425 and Abaijah v. Mana (2015) N6071.

19. My view, however and with respect, favours the Supreme Court's view on point in Kenn Mondiai's case, that is, its definition on what constitutes sufficient interest as well as its remarks as I have quoted above. Let me explain. Firstly, I note that Order 16 Rule 13(5), unlike Order 16 Rule 3(5), applies only after when leave has been granted to an applicant to apply for judicial review. Secondly, Order 16 Rule 13(5)(2) applies to service of court documents on respondents and interested persons which is where the phrase "all persons directly affected by the decision the subject of the review" was used. It has no application to an applicant and with respect, I cannot find any similarities between Order 16 Rule 3(5) and Order 16 Rule 13(5)(2). I think that the term sufficient interest if used in judicial review proceedings only applies to applicants under Order 16 Rule 3(5) of the National Court Rules. It reads and I quote (5) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. (Underlining is mine). The Supreme Court in Kenn Mondiai had considered and applied Order 16 Rule 3(5) to reach its findings and remarks, which is why I say that I agree with its decision on point. So I think that even if Order 16 Rule 13(5) had existed at the time the Supreme Court made its decision in 2007, it would not have been a relevant provision or consideration because it deals with service of court documents on persons or interested persons after the leave hearing.

20. Having explained that, I think that it is time, perhaps long overdue, that the National Court should apply a liberal approach when considering sufficient interest in judicial review applications. I say this based fully on the very remark made by the Supreme Court in Kenn Mondiai. I can only add that in Papua New Guinea the illiteracy rate is still high if compared with its total population or with the rest of the world. Despite all the laws that we have, our citizens still lack the full capacity in literacy for them to fully appreciate and participate meaningfully in the recognition, enforcement or in seeking the full protection of their rights and obligations, under their laws. Judicial review deals with matters of public interest because it involves scrutinizing decisions that are made by our public servants or public office holders of high offices. In reality, these public officials are accountable to the people or the citizens of the country, are they not? Therefore, and as the Supreme Court has put it correctly, even a citizen with no other interests than to see the law upheld may have sufficient interest to bring the case.

Arguable case

21. The plaintiffs plead ten (10) grounds in the Statement. I need not comb through each of the grounds to see whether each one of them has sufficient merit for argument. My role, in sitting in to hear a leave application, is to briefly consider whether there is an arguable case as a whole based on the materials and submissions that are presented before me. On that note, I have heard and considered the submissions of the parties on this issue. Let me address it.

22. The plaintiffs' main argument is centred on sections 90A and 90B of the Forestry Act 1991 (the Forestry Act). Section 90A sets out the application process for applying for a forest clearing authority. Subsection 2 of section 90A states that an applicant cannot apply to the National Forest Board (Board) for a forest clearing authority where and I quote, the proposed project is within a Forest Management Agreement Area. The plaintiffs say that the area or the Land where the FCA licence is situated which was granted by the first and second Defendants, was and continues to be within a Forest Management Agreement Area (FMA). The plaintiffs say that the FMA was granted on 9 February 2012 for a period of 40 years. They say that it will expire on 8 February 2052. A copy of the FMA is disclosed in evidence, that is, it is marked as annexure "D" to the affidavit of Peter Maue filed on 14 March 2018.

23. Counsel for the first and second Defendants Ms Takoboy says this in reply. She refers to section 90A(2) and submits that there are exceptions therein that permits an applicant for a forest clearing authority to apply over a land that is the subject of an FMA. Section 90A(2) as amended states as follows:

(2)An application under Subsection (1) shall not be made where the proposed project is within a Forest Management Agreement Area, Timber Rights Purchase Agreement Area or Local Forest Area except with the approval of the Board and, where applicable, the holder of any relevant Timber Permit. (Underlining is mine)

24. Mr Tape, counsel for the three defendants points to the said FMA and says that it did not contain the common seal of the second Defendant. Mr Tape submits that because of that, the FMA is not binding or is yet to come into effect to this day.

25. My views are as follows: Firstly, I concur with Ms Takoboy's submission that there are exceptions under subsection 2 of section 90A. The Board or a holder of a timber permit may allow an applicant to apply over an area the subject of an FMA or over a Timber Rights Purchase Agreement Area or Local Forest Area. These are expressly stated in the provision as I have underlined above in my judgment. What I can gather from this is that, at this stage, the plaintiffs have filed their evidence to prove their argument. The defendants, on the other hand may not have filed all its evidence, but they may have a valid argument against that, which they will be required to establish as well, that is, to show that their case has met one of the exceptions. In my view, that would be a matter for a proper hearing. In regard to the submissions of the 3 defendants, I notice that the common seal of the 2^nd defendant was not affixed to the FMA. On the other hand, the FMA has the signatures of all the parties including that of the Minister responsible. In my opinion, these are matters that would require a proper hearing. They cannot be dealt with now, as this is not the appropriate time to scrutinize the merits of the arguments. I also note that the State's argument tends to recognize the FMA but to point to the exceptions, which of course would later require further clarity.

26. Subsection 3(f) of section 90A is the next contention. It requires an applicant of a forest clearing authority to disclose to the Board evidence of (i) verification of ownership of land that is covered in the applicant's proposed plan and (ii) consent, whereupon both of these are to be given by the landowners or by their incorporated land groups. The plaintiffs say that they belong to the area or the Land where the FCA licence was issued over but they say that they have not been consulted nor did they provide these two requirements to support the issuance of the FCA licence by the first and second Defendants to the third Defendant. They therefore question, amongst others, whether the first and second Defendants had failed to take these into account when they decided to issue the FCA licence to the third Defendant.

27. These therefore raises questions such as the right to be afforded with natural justice, purported breaches of provisions of the law, whether the Board had failed to take into account a relevant consideration and whether Board's decision has qualified under the Wednesbury principle. Those are of course legitimate grounds for review in a judicial review application.

28. Section 90B follows on from the plaintiffs' argument from section 90A. Having made my considerations in relation to section 90A, I have satisfied myself that there is any arguable case so I will stop here and look at the next issue.

Undue delay

29. The State and the three defendants contest the issue of undue delay.

30. The proposed substantive relief in the Statement is an order for certiorari. Order 16 Rule 4(1)(a) and Rule (2) of the National Court Rules are therefore relevant. They read:

(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant -

(a) leave for making of the application; or

.....

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

.....

(2) In the case of an application for an order of certiorari to remove any judgement, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

31. As stated, the proposed decision for review was made on 9 May 2016. The proceeding was filed on 23 March 2018. The four (4) months period would have ended in September of 2016. The delayed period after that is about one year six months. The consideration of undue delay remains discretionary as stated in Order 16 Rule 4(a) of the National Court Rules. It is also confirmed in the case law. Doherty AJ, as she then was, in the case Ex-parte Application by Eric Gurupa (1990) N856 stated and I quote:

Although the current National Court rules state that the four months is "the relevant period" in considering whether there has been undue delay, it is not a mandatory period and the new rules do not fetter the discretion of the court and I consider that the interpretation and attitude shown by the court prior to 1983 are relevant and pertinent today.

32. And the test here is in two (2) fold. The first is to establish undue delay. If undue delay is established, I am required to consider whether the granting of the proposed relief would, in my opinion, (i) likely to cause substantial hardship or (ii) substantially prejudice the rights of, those persons to be affected by it, or (iii) whether the granting of the relief would be against or detrimental to good administration. See cases: Jerry Lulu v. Pepi Kimas (2007), OS 546 of 2004; Paul Sireh v. Miai Larelake (2007) N3181 and Sao Gabi & State v. Kasup Nate and Ors (2006) N4020. And I note that I only need be satisfied of one of the three (3) prerequisites (i.e., substantial hardship, substantial prejudice or detrimental to good administration) to refuse leave to apply for judicial review.

33. The plaintiffs argue that there was no undue delay. They concede that their delay has exceeded the 4 months limitation period. But they say that they did not sit there and did nothing. They say that they have filed related proceedings and that it was through these proceedings that they had realised and have filed this application for leave to apply for judicial review. They tend to also blame their former lawyers for not filing the correct mode of proceeding on their behalf. They claim that they were simple villagers and were simply doing their utmost best to be heard because they claim that their rights over their land have been significantly affected as a result of the grant of the FCA licence.

34. The State argues that there was considerable and unexplained delay. It says the plaintiffs did not adduce evidence to show why they did not apply earlier or sooner until about 1 year 10 months later. I think the actual delay period is 1 year 6 months as I have explained above in my judgment. As for the three defendants, they submit these. They say that if the relief is granted, they will suffer hardship and prejudice. They say that since the granting of the FCA licence, they have taken steps to employ people both local and foreigners, and they have developed the area. This is stated in paragraph 5 of the affidavit of Aaron Umertmga filed on 20 March 2018.

35. The delay is not disputed. The plaintiffs have taken a considerable amount of time, that is, 1 year 6 months before making this application. Should they therefore be penalised by this Court by the refusal of leave despite the fact that they have demonstrated that they have an arguable case? To me, that is indeed possible. However, I also think that I should take into account the facts and circumstances of this case as a whole. Let me explain. As stated at the introduction, the plaintiffs and the three defendants have battled each other in the related court proceedings since 2017. Evidence of the start of the dispute going back to as far as 2013, is contained at paragraphs 12 to 19 in the affidavit of Lobot Lotu filed on 23 March 2018. Currently, there are three related court proceedings filed at the National Court in Kokopo. This is evident at paragraphs 3, 7 and 8 of the affidavit of Mr Umertmga. In my view and when I look back at all that and the disputes that have arisen to date, I agree that it is not as if the plaintiffs have not taken any steps to protest the matter or protest the actions of the three defendants. When dealing with landowners acting together as a group or groups in Papua New Guinea, the practical difficulties are real. They range from receiving instructions, obtaining consents of individual clan members, illiteracy, misconception of issues, internal issues with their lawyers, funding issues and geographical barriers, to name some, and I note that the plaintiffs, in their submissions, covered some of them. Evidence also suggests that the plaintiffs and the three defendants had planned to develop the area or the Land, again going far back as 2013. The other point, which I think is important, is the fact that the plaintiffs have established that they have an arguable case. Should I refuse leave only because of the fact that for this proceeding alone, they have filed their application 1 year 6 months late? I do not think justice would be better served if I find that the delay was undue. I therefore do not find that there was undue delay on the part of the plaintiffs.

36. Even if I am proven wrong and there was undue delay, let me say this. In relation to the substantial hardship and prejudice arguments, I note that the three defendants did not obtain any evidence from their developer to produce to the Court. Such evidence would have been relevant to show what developments the developer has done to date. I am not convinced that I would accept Mr Umertmga's evidence as it is without any documentations supporting his claims of hardship and prejudice. For example, where is the evidence that the developer has already invested substantial money or resources into commercial agricultural or farming activities, which was the primary basis for the grant of the FCA licence? What stages are they at with their projects? The three defendants made submissions on harvesting of timber, monies received and royalties or taxes paid, which in my view is secondary to the primary purpose for the grant of the FCA licence. So even if there may be evidence of undue delay, I would have still found that the three defendants have failed to establish or show evidence of hardship or prejudice.

Administrative remedies

37. The State is the only party questioning whether the plaintiffs had exhausted the available administrative remedies before coming to the Court. It says that the plaintiffs should have first written to and raised their concerns with the first and second Defendants.

38. The plaintiffs argue that they had exhausted the administrative process before they filed the court proceeding. They say that this is the correct process or cause of action taken.

39. I reject the State's submission. I uphold the plaintiffs' submission. I find that there is no other formal administrative process to exhaust other than to apply for judicial review in this instance.

Other considerations

40. The three defendants also challenge some of the proposed grounds for judicial review in the Statement. I reject them and I will only say these without going into the details. Firstly, by looking at the Statement, it is my view that the grounds are generally sufficiently pleaded. I have also covered them under the sub-heading Arguable case above in my judgment.

41. The three defendants also allege that the plaintiffs did not state the correct name of the first defendant. In my view, the argument is premature. Also, I note that the State who acts for the first defendant did not raise that as a concern or as an issue. I also note that such an allegation is not fatal so if proven, it may be cured by an order to amend the name of the party concerned where required. I reject the argument.

42. Finally, the three defendants allege duplicity of proceedings. They refer to the related proceedings filed, which I have covered above in my judgment. They say that this therefore amounts to abuse of the court process. I dismiss the argument. I find that there is no other judicial review proceeding filed that is similar to this one, which seeks the relief as sought in the Statement. The primary claim here is to challenge the process based upon which the FCA licence was granted to the third defendant on 6 May 2016 by the first and second defendants. The three related proceedings are filed under ordinary originating summonses pursuant to Order 4 division 4 of the National Court Rules.

Summary

43. I will grant leave to the plaintiffs to apply for judicial review. In addition and pursuant to Order 16 Rule 13(5) of the National Court Rules, I will also issue directions for parties to comply.

Cost

44. The plaintiffs have sought cost of the application for the judicial review. I will award cost in that manner.

THE ORDERS OF THE COURT

45. I make the following orders:

1. Leave is granted to the plaintiffs to apply for judicial review.

2. The plaintiffs shall file and serve their notice of motion for judicial review within 14 days from the date of the order of this Court, and file evidence of that.

3. Further to term 2 of the Court's order, the plaintiffs shall immediately serve all the Court documents filed to date upon those defendants not yet served including any interested persons whose interests are directly affected by this proceeding, and file evidence of that.

4. Subject to compliance with term 2 of the Court's order, the matter shall return to Court for directions hearing at 9:30am on Wednesday 9 May 2018.

5 Cost shall be cost to the application for judicial review.

6. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
Nelson Lawyers: Lawyers for the First and Second Plaintiffs
Cherake Lawyers: Lawyers for the Third Plaintiff
Solicitor General: Lawyers for the First and Second Defendants
Kandawalyn Lawyers: Lawyers for the Third, Fourth & Fifth Defendants