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Sulawei Ltd v Papua New Guinea Land Board [2024] PGNC 129; N10781 (7 May 2024)

N10781

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 55 OF 2021 [IECMS]

BETWEEN:
SULAWEI LIMITED
First Plaintiff

AND
PAUL TORATO
Second Plaintiff

AND
PAPUA NEW GUINEA LAND BOARD
First Defendant

AND
HON. JOHN ROSSO, Minister for Lands & Physical Planning
Second Defendant

AND
BENJAMIN SAMSON, Secretary Lands & Physical Planning
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Dowa J
2024: 2^nd & 7^th May

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – application to review decisions of PNG Land Board and Minister For Lands & Physical Planning- for withdrawal of an exempted application for the grant of urban development lease-UDL- prerequisites of leave- whether grounds exists for leave-where there is undue delay in prosecuting leave application-leave can be granted where the gravity of the case so warrants- and in the interest of justice-having all requirements met-leave was granted.

Cases Cited:
NTN -v- PTC [1987] PNGLR 70
Asakusa -v- Kumbakor (2008) N3303
State & Sali v Sisia [1987] PNGLR 102
Tepas v Tekum (1999) N1921
Pipoi v Seravo (2008) SC909
Independent State of Papua New Guinea vs Toka Enterprises Ltd (2018) SC1746

Counsel:
T. Tape, for the Plaintiffs
H. Wangi, for the Defendants

DECISION

7th May 2024

1. DOWA J: This is a ruling on the Plaintiff’s application for leave to apply for judicial review.

2. The Plaintiff applies for leave to apply for judicial review of two decisions:

1. The decision made by the first Defendant in its PNG Land Board meeting No.3/2019 Item 60 which convened on 26th November 2019, wherein it withdrew the item 60 concerning the Plaintiff’s application as the sole applicant for the state lease over Portion 2019 and 2020 (Formerly Portion 1600) pursuant to a Ministerial exemption granted in 1998 in favour of the first Plaintiff.
   
2. The decision of the second Defendant made on 30th November 2020 and communicated to the Plaintiffs on 9th December 2020 which was published by the third Defendant in the Gazettal Notice No. G821, 27th November 2020, wherein it dismissed the Plaintiffs’ appeal from the first Defendant’s decision.
   

Background Facts

3. The first Plaintiff is a company incorporated under the Companies Act. It has an interest in developing the land described as Portions 2019 and 2020 (formerly Portion 1600), Granville, NCD. It applied for a UDL lease and sought exemption on the land being put on tender. The Plaintiff was granted an exemption under Section 69(2) of the Land Act from tender or being advertised by the then Minister for Lands & Physical Planning, Hon. Viviso Seravo in August 1998.
   
4. The Plaintiff says the exemption was never set aside by any of the succeeding Ministers. The Plaintiff alleges, instead of listing the Plaintiff’s application as an exempt item for the grant of the lease, the Department of Lands has placed the property on tender and allowed various tender applications.
   
5. The Plaintiffs, taking issue with earlier decisions of the Defendants made on 24^th March 2014 and 18^th May 2015, refusing to approve the Plaintiff’s application, filed proceedings in the National Court in OS No.236 of 2016.The judicial review was heard and dismissed by the National Court on 10^th February 2017.
   
6. The Plaintiff appealed the decision to the Supreme Court in the Supreme Court proceedings styled as SCM No. 11 of 2017 – Sulawei Limited v Luther Sipison and Others. On 1^st May 20219, the Supreme Court upheld the Appeal and amongst other orders, granted the reliefs sought in the judicial review application.
   
7. As per the orders of the Supreme Court, the subject land is exempt from tender, and the first Plaintiff’s application was the only one to be considered.
   
8. The Department of Lands in accordance with the orders of the Supreme Court gave an opportunity to the Plaintiffs to be heard as exempted applicants on the 26^th of November 2019 in their Land Board Meeting No. 03/2019, item 60 but the application was subsequently withdrawn by the PNG Land Board.
   
9. The Plaintiff appealed the withdrawal decision to the Minister by Appeal on the 19^th of December 2019. The Appeal was dismissed by the Minister which was conveyed to the Plaintiff by a letter dated 30^th November 2020 which was served on the 9^th of December 2020. This resulted in the current application for leave to apply for judicial review of the two decisions.
   

The Application

10. The application was heard on 2^nd May 2024. The State opposed the application on the basis that there was undue delay in the prosecution of the leave application. I will address this contention in the later part of my ruling.
    

11 The Plaintiffs rely on the following documents:

1. Originating Summons filed 26.04.2021
2. Statement pursuant to Order 16 Rule 3, NCR, filed 26.04.2021

100. Affidavit of Paul Torato filed 26. 04. 2021
     

Issue

12. The issue for consideration is whether the Plaintiffs are entitled to be granted leave to apply for judicial review.

Law

13. The principles applicable to an application for judicial review are settled in this jurisdiction: refer NTN -v- PTC (1987) PNGLR 70 and Asakusa -v- Kumbakor (2008) N3303. The Court has a discretion to grant leave where the Court is satisfied as to the following considerations:

1. The applicant must have sufficient interest.
2. The applicant must have an arguable case.

100. There must be no undue delay.

4. The applicant must have exhausted all other statutory/administrative avenues for appeal or review.
   

14. On the use of discretion, the Court in NTN v PTC, said this at page 7 of the judgment:

“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 its 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 [1981] UKHL 2; [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."

Consideration

1. Sufficient Interest
   

16. The first Plaintiff is the applicant for the UDL lease over the subject property. It was granted an exemption in 1998 to be the sole applicant which was later confirmed by the Supreme Court in proceedings SCM No. 11 of 2017. The second Plaintiff joined in the application for the grant of the state lease in early November 2019. The Plaintiffs are directly affected by the decisions of the first and second Defendants in withdrawing the application from the list of items for consideration and therefore has sufficient interest.
    
    2. Arguable case-first Defendant’s decision
       
17. As stated in the background facts, on 18^th August 1998, the first Plaintiff was granted an exemption to be the sole applicant for the UDL lease over land described as Portions 2019 and 2020, Granville, Moresby, NCD. On 20^th May 2019, the Supreme Court ordered that pursuant to the Notice of Exemption the First Defendant was to convene to consider the First Plaintiff’s tender application for a State Lease over land Portions 2019 and 2020, Granville, Moresby, NCD, as the sole applicant.
    
18. On 26^th November 2019, instead of convening to consider the Plaintiffs’ application, the First Defendant convened and decided in PNG Land Board Meeting No. 03/2019 (Item 60) to withdraw the Plaintiffs application which was then listed item 60 from consideration.
    
19. Prior to the PNG Land Board meeting of 26^th November 2019 and at the first Defendant’s request, the Plaintiffs provided all financial and other necessary information showing support for development of the property.
    
20. The withdrawal decision was communicated to the First Plaintiff via a letter dated 13^th December 2019. Aggrieved by the withdrawal, the Plaintiffs jointly appealed to the Second Defendant pursuant to s.62 (1) of the Land Act 1996.
    
21. The Plaintiffs seek to review this decision of the First Defendant to withdraw the item (60) from consideration, alleging that the withdrawal was made contrary to the exemption granted under s.69 (2) of the Land Act 1996, and the Supreme Court decision. The decision was made without good reasons and unreasonable in the circumstances.
    
22. On quick perusal of the facts presented, I find the Plaintiffs have an arguable case. It is arguable that the decision to withdraw was made contrary to section 69(2) of the Land Act. It is arguable that the decision was unreasonable especially after the Supreme Court decision which ordered for the consideration of the Plaintiffs application forthwith. It is arguable that the withdrawal of the application without giving any reasons, or any good reasons is a breach of natural justice. It is arguable that the Defendant failed to consider relevant matters, especially the Plaintiffs’ proposed development plans and the financial and technical support presented in the application. In all this, it is arguable that the decision to withdraw is unreasonable, especially where the exemption from tender was granted more than 21 years.
    

Second Defendant’s Decision

23. The Plaintiffs appeal against the PNG Land Board to the second Defendant was dismissed. The dismissal decision was published by the third Defendant on Friday, 27^th November 2020, in a gazettal notice, No. G821, in the National Gazette wherein, amongst others, the appeal was dismissed, and the withdrawal decision of the First Defendant confirmed. The Plaintiffs became aware of the decision on 9^th December 2020 when they were served a letter dated 30^th November 2020 advising them of the dismissal decision.
    
24. The Plaintiffs apply for leave to apply for judicial review of this decision for the same reasons.
    
25. Again, on a brief perusal of the grounds in the statement and the affidavit of the second Plaintiff, the Plaintiffs have an arguable case. It is alleged the second Defendant provided no reasons for dismissing the appeal. It is arguable that a failure to provide reasons is a breach of the natural justice. It is arguable that the defendants failed to consider relevant matters in their decisions, like the Ministerial exemption that was granted 21 years ago, the Supreme Court decision which directed the hearing of the application forthwith, the preparatory work the Plaintiffs put in especially the proposed development and the financial backing by financial institutions and other development facilitators. And finally, based on the allegations, it is arguable that the decisions of both the first and second Defendants are unreasonable.
    

c) Have the Plaintiffs exhausted all other administrative avenues for appeal?
26. Under Section 62 (1) of the Land Act, the Plaintiffs are required to appeal the decision of the PNG Land Board to the Minister for Lands and Physical Planning within twenty-eight (28) days. The evidence shows, the Plaintiffs did appeal the decision to the Minister on 19th December 2019.They paid the necessary filing fees of K 500.00. The Minister made his decision which is also the subject of the review application. As for the Minister’s decision, there is no other known avenues for redress except by way of review which the Plaintiffs have just done. I am satisfied that the Plaintiffs did exhaust the appeal process and are entitled to seek review in this Court.

d) Undue Delay

27. The Plaintiffs filed this application on 26th April 2021 about one year, five months from the first Defendant’s decision made on 26th November 2019. The Plaintiffs appealed the decision to the second Defendant as provided for by Section 62 (1) of the Land Act. The second Defendants decision was made and published on 27th November 2020 and communicated to the Plaintiffs on 9th December 2020. From 27th November 2020 to 26th April 2021, there is a delay of about a month.

28. Order 16 Rule 5 of the NCR provides that an application for judicial review be made within four (4) months from the date of decision. It is generally accepted that the period of four months is not mandatory. The Court has a discretion to enlarge that period provided the application is brought within a reasonable time, and a reasonable explanation for the delay is given. What amounts to undue delay depends on the circumstances of each case. The following cases illustrate this point.

29. In NTN v PTC (1987) PNGLR 70, the leave application was refused for undue delay after it was brought 11months late. The Court was of the view that the grant of leave that late would be detrimental to good administration.

30. In State & Sali v Sisia (1987) PNGLR102, the Supreme Court held, in upholding an appeal, that a delay of five years was undue delay.

31. In Tepas v Tekum (1999) N1921, the Court refused leave for undue delay. The application was made 13 years after the administrative decision, the subject of the leave application.

32. In Pipoi v Seravo (2008) SC909, the Supreme Court, in dismissing an appeal, held that a delay of 11 years was undue delay and affirmed the decision of the National Court which refused the leave application.

33. In the present case, the first decision was made one year, five months before the filing of these proceedings. The Plaintiffs appealed the decision to the second Defendant. The Plaintiffs had to wait for the outcome of the appeal as allowed by law to exhaust the statutory appeal process. As for the second decision the delay period is less than a month. The delay period is not unreasonable and sufficient reasons are given for the delay.

34. I note the contention by Mr. Wangi, of counsel for the Defendants, that there is undue delay in prosecuting the leave application since it was filed more than three (3) years ago. Counsel urges the Court to take this period into account and refuse the application. In response, Mr. Tape, counsel for the Plaintiffs, submits that the Court reject the arguments raised by Defence counsel because he was not given notice and if he was advised early, he would have provided an affidavit explaining the delay. Since the matter was raised, he briefly explained that the delay was caused largely by the Registry in failing to fix matters and advise parties of return dates. They were not given definite dates and due to the uncertainties, the matter never got prosecuted earlier.

35. In my view the submissions made by defence counsel are valid and the Court can take into account delays in prosecuting leave applications as forming part of the undue delay consideration. Three years is a considerable delay for prosecuting a leave application. The onus is on the Plaintiffs and their lawyers to take every step necessary to prosecute their application with due diligence. The Defendants would have been in a much stronger position in advancing their arguments had they filed an application of their own for dismissal of proceedings for want of prosecution, giving the lawyers for the Plaintiff an opportunity to explain formerly instead of speaking from the bar.

36. That said, and despite the delay, the Plaintiffs be allowed to seek review. In my view, the delay in prosecuting the application should not deprive the Plaintiffs’ pursuit of justice as the gravity of the case warrants further consideration of the Plaintiffs’ complaint in a substantive review.

37. In the case, Independent State of Papua New Guinea vs Toka Enterprises Ltd (2018) SC 1746, the Supreme court said where a special gravity of the case so warrants, leave must be granted. At paragraph 11 of the ruling, the Court said:

“11. The second part of Sub-rule 1 was given little or no consideration at all. No consideration was given to whether to grant leave would cause “substantial hardship to, or substantial prejudice to the rights of any person” or “would be detrimental to good administration”. The subject land formed part of the land occupied by the National Broadcasting Corporation, a public institution. The land was given to the respondent by way of a town sub-division lease for commercial development. The term of the original sub-division lease was a fixed 5 year term. Had the position of the parties substantially shifted in those 13 years? Were the improvement conditions complied with? Were there any subsequent renewal of the sub-division leases? Was the land rezoned? Did any third party acquire any interest in the land? Had there been any improvements erected on the land, by whom and of what value? No such inquiry on the part of the Court occurred. These were important considerations that if considered would have produced a just outcome of the case.”
38. The present case is grave enough. It involves a large portion of land which the Plaintiffs have shown commitment in developing same. They have the backing of the exemption and a Supreme Court decision in their favour.

39. For these reasons, I hold, even though there is undue delay in prosecuting the application, the gravity of the case warrants a review in the interest of justice.

Conclusion

40. In the end, for all the reasons given, I am inclined to grant leave to the Plaintiffs to apply for judicial review of the two decisions made by the first and second Defendants respectively as claimed in the Originating Summons.

ORDERS

41. The Court orders that:

1. Leave is granted to the Plaintiffs to apply for judicial review of two decisions:
   1. The decision made by the first Defendant in its PNG Land Board meeting No.3/2019 Item 60 which convened on 26th November 2019, wherein it withdrew the item 60 concerning the Plaintiff’s application as the sole applicant for the state lease over Portions 2019 and 2020 (Formerly Portion 1600) pursuant to a Ministerial exemption granted in 1998 in favour of the first Plaintiff.
      
   2. The decision of the second Defendant made and published on 3oth November 2020 and communicated to the Plaintiffs on 9th December 2020 which was published by the third Defendant in the Gazettal Notice No. G821, 27th November 2020, wherein it dismissed the Plaintiffs’ appeal from the first Defendant’s decision.
2. The Plaintiffs shall file an application for judicial review by Notice of Motion within 21 days from date of order.
3. Cost be in the cause.
4. The matter returns to Court on 3^rd June 2024 at 9:30 am for Directions.

v) Time be abridged.
___________________________________________________________
Kandawalyn Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyer for the Defendants